The Indian Penal Code

THE

INDIAN PENAL CODE

(AS MODIFIED UP-TO-DATE)

DINESH CHANDRA ROY, m.a., b.j .,

Advocate, High Court, Calcutta,

AUTHOR OF THE CODE OF CRIMINAL PROCEDURE

August 1933.

THE CALCUTTA PHOTOTYPE CO.
1, Crooked Lane, Calcutta,

(K j? v' 9 ■<--

Published by

The Calcutta Phototype Co.,

and Printed by 3VI. K. Roy at tho Calcutta Phoxot/pe Co's Press

1, Crooked Lane, Calcutta.

This book is humbly
Dedicated

in respectful memory
of

My Revered Pather

Late GIRISH CHANDRA ROY. Vakil. Pabna,
who was a distinguished Lawyer of Bengal.

PREFACE TO THE SECOND EDITION.

This edition has been revised and recast in the light of suggestions
from the Bench and the Bar. The Law Quarterly Review commented on
the first edition that the book should not have been written from the
standpoint of a defence lawyer and the author in the present edition has
given up that standpoint, but the cases under the caption * defence to
succeed ’ have been retained.

Although the first edition was exhausted long ago the author was
busy in annotating his edition of the Criminal Procedure Code which was
published in September, 1929, and thereafter he revised the present
edition, hence the delay.

About 1500 cases have been added and the case-law is brought down
to end of July, 1933. The Minor Acts have been annotated.

DINESH CHANDRA ROY.

Calcutta,
rgth A ugust, 1933 .

PREFACE.

Though the present work on the Indian Penal Code has been written
from the standpoint of a Defence lawyer, I have also tried to be fair to
the prosecution bearing in mind that the onus is always on the prosecution
to prove the charge.

Under the heading — “ For the defence to succeed ” — I have indicated
in my commentaries on the important sections the lines on which the
defence should be conducted. I have not exhausted, as, indeed I could
not exhaust, the lines of defence because the industry and the ingenuity
of a defence lawyer might find out many more points which may arise
upon the facts and circumstances of every individual case. I have only
attempted to indicate the lines on which the defence is commonly conducted
and I have also referred to, and very often copiously quoted from, the
important case-law on the sections of the Code as, in my opinion, it helps
a busy lawyer to have all the leading judicial decisions on any section
collected together at one place.

I have quoted the " charge ” under almost every section and this, as
will appear to every lawyer, is in most cases a mere repetition of the
section itself except in cases where that has been modified by judicial
decisions which have also been referred to in the commentary whenever
necessary. Under the heading — " Charge to the jury ” — I have also
referred to the case-law bearing on misdirection in the Judge’s summing
up. Generally the prosecution is deemed to have proved its case if it
proves the charge. But where there are special points requiring proof
by the prosecution, I have noted them under the heading — “ Procedure”
and under the sub-heading — ” the Prosecution must prove”. In the
annotations I have attempted to follow the language of the judgments in
the leading cases as far as possible. The references have been given in
the foot-notes arranged under the letters of the alphabet but in brackets
in the body.

Much of the bulk of the book is due to the fact that I have included,
in my commentaries copious extracts from the important judgments^of
the Privy Council and Courts in England as also of the different High
Courts and of the Chief Courts in India and Burmah. I have printed in
Italics those passages of the judgments which have appeared to me as
the important portions. I had to quote copiously from them for the simple
reason that all those reports are not always available.

I have commented upon the sections generally and have tried to
indicate what should be the proper construction of the wordings of them

PREFACE vii

in my own language, but the scope and object of a section have, whenever
possible, been given in the language of judicial decisions.

Und$r — “ Procedure”, I have shown the effect of the amendment of
the Criminal Procedure Code by Act XVIII of 1923 and I have specified
where such amendment has in effect overruled the decisions under the
old Criminal Procedure Code, Act No. V of 189$, and has thus rendered
them obsolete and where such decisions have only been modified, I have
attempted to indicate clearly the extent and degree of such modifications.

In quoting the " Procedure ” under each section, which has been
printed in bold type, I have only drawn upon the Second Schedule to
the Criminal Procedure Code. Complaint, jurisdiction, separate convic-
tion, punishment and other points of procedure have been given in detail
under different headings. The heading — “ Prosecution must prove”, and
the heading — " For the defence to succeed”, also fall under the heading
of " Procedure”.

I have referred to the observations of the authors of the Code and
to the Report of the Law Commissioners in my commentary on the
important sections because they help us a good deal in understanding
the sections by indicating what was in the mind of the legislators in framing
those sections. In doing so, I am not certainly unmindful of the decisions
in 22 C. 78 P. C. and 22 Bom. L. R. 568, which have held that ' Statements
of Objects and Reasons ’ cannot be referred to.

Notwithstanding the warning of Mr. Justice Raymond West in
Moorga Chetty’s case (1881) 5 Bom. 338 (362) F. B., and the decisions of
the Calcutta High Court in Ramsubhag Singh, (1914) 19 C. W. N. 972 (980)
and Srilal Chamarias case, (1918) 46 C. 607 and the decision of the Full
Bench of the Madras High Court in Copal Naidu, (1922) 45 M. 605 (614),
which have held that the law shall be ascertained by an interpretation of
the language used in the Code and that cases decided in England should
be followed with a careful allowance for the great difference of the law
in the two countries, I have referred to English law under the heading
‘ Analogous Law ’ and the English cases under the heading ' English cases ’
where the English law is different from the Indian law, but I have alluded
to English cases along with Indian cases where the law is the same in both
a he countries.

* I have referred to the English law and the English cases because
justice is administered in many cases by English Judges as also for the
reason that much valuable assistance is to be had from the judgments of
eminent Judges in England where a question of principle is involved and
the wordings of the two enactments are not different.

Under the heading — ‘ Analogous Law’, I have quoted the correspond-
ing English Statute and I have noted the points of difference.

viii THE INDIAN PENAL CODE

I have closely scrutinized and commented upon the recent amendments
of the Code under the heading ‘ Legislative Changes ’ in my commentary
to the sections amended and have tried to indicate clearly the nature and
extent of such amendment.

For the convenience of the profession I have printed in the Appendix
those Minor Acts which have a bearing on the Indian Penal Code.

I have referred to the case-law up to the end of February, 1926.

I have always kept in view that the highest function of a commentator
of legal enactments is to dive deep beneath the sea of seemingly unconnected
provisions and to help in a thorough grasp of the underlying principles.
Looked at from this standpoint a successful legal commentary is neither a
catalogue of decided cases nor a compendium of the practice and procedure
of the judicial tribunals in a country. It is not for me to presume, far
less to profess, that I have been able to follow such a high ideal, but I
have endeavoured to do so in my own humble way and it is for the profession
to judge how far I have succeeded.

This book was written in the Vakils’ Library, and but for the rich
library at my disposal it would have been impossible for me to obtain
the materials necessary for such a work. The Secretary and the Assistant
Secretary very kindly kept the library open for me throughout the vacation
and the Librarian and the Library Assistants gave me every assistance
they could for which I take this opportunity to convey to them my sincere
thanks.

My ambition in bringing out this book is to serve the profession, and
I am grateful to the members of the Vakils’ Association for the great
encouragement they gave which in no small measure sustained and
stimulated me in my long but self-imposed labour. I shall consider my
labour amply rewarded if the book is regarded by the members of the
profession as a useful publication.

Before I finish I have to convey my grateful thanks to my numerous
friends and members of the Vakils’ Association without whose assistance
and valuable suggestions it would not have been possible for me to bring
out the book. In particular I am thankful to my friend Babu Manindra
Nath Roy, m.a., b.l., Vakil, High Court, who helped me in the difficult
task of preparing the Index and to my friend Babu Radhika Ranjan Guha, <
m.a., b.l., Vakil, High Court, who helped me in preparing the Tabled
Cases.

DINESH CHANDRA ROY.

Vakils Library,

Calcutta High Court,
Dated, the 1st March, 1926.

CONTENTS.

Page .

The Indian Penal Code

1— 1055

The Appendix —

The Cattle-trespass Act

i — x

The Child Marriage Restraint Act

xi — xiii

The Contempts of Courts Act

xiv — xv

The Criminal Tribes Act

xvi — xxvii

The Election Offences and Inquiries Act . .

xxviii — xxx i

The Explosive Substances Act

xxx ii — xxxiv

The Indian Extradition Act

xxxv — xlvi

The Indian Merchandise Marks Act

xlvii — Jvi

The Indian Press (Emergency Powers) Act

lvii — lxxi

The Indian Criminal Law Amendment Act, 1908

Ixxii — lxxviii

The Criminal Law Amendment Act, 1933

Ixxix — lxxxiii

The Indian Fisheries Act

. . lxxxiv — lxxxvi

The Prevention of Seditious Meetings Act

. . lxxxvii — lxxxviii

The Territorial Waters Jurisdiction Act, 1878

lxxxix — xci

The Whipping Act

. . xcii — xciv

The Reformatory Schools Act

xcv — civ

Bengal Terrorists Act

. . cv — evi

ARRANGEMENT OF SECTIONS

CHAPTER I.

INTRODUCTION.

Preamble.

Sections. Page

1. Title and extent of operation of the Code . . . . , . 1

2. Punishment of offences committed within the said territories . . 7

3. Punishment of offences committed beyond, but which by law may be

tried within, the territories . . . . . . . . 9

4. Extension of Code to extra-territorial offences . . . . 10

5. Certain laws not to be affected by this Act , . . . . . 17

CHAPTER II.

GENERAL EXPLANATIONS.

6 . Definitions in the Code to be understood subject to exceptions .. 19

7 . Sense of expression once explained .. .. . . ..19

8 . Gender . . . . . . . . . . 20

9. Number . . . . . . . . . . 20

10 . “Man" .. .. .. .. .. ..20

“Woman” .. .. .. .. .. ..20

11 . “Person" .. .. .. .. .. ..20

12. “Public" .. .. .. .. .. ..21

13. “Queen" .. .. .. .. .. ..21

14. “ Servant of the Oueen " .. .. .. .. ..21

15. “ British India " .. .. .. ..21

10 . “ Government of India " .. .. .. .. ..21

17. "Government” .. .* .. .. ..21

18. “ Presidency " . . . . . . . . . . 22

19. “Judge" .. .. .. .. .. ..22

20. “ Court of Justice " . . . . . . . . 23

21. “ Public servant " .. .. .. .. . 23

22. “ Moveable property" . . . . . . . . 28

23. “ Wrongful gain .. .. . . ..28

" Wrongful loss " .. .. .. .. ..28

Gaining wrongfully . . . . . . 28

Losing wrongfully . . . . . . . . 30

24. " Dishonestly " • • . . . . . . . . 31

25. '* Fraudulently " • • • • • • . . 34

26 " Reason to believe ” . . . . . . . . 3£

27. “ Property in possession of wife, clerk or servant " . . 35

2$; “ Counterfeit " . . . . 36

29 “ Document " . . . . . . . . 37

on “ Valuable security " .. .. .. ..39

*1 •• A will " •• •• • ..39

32 Words referring to acts include illegal omissions . . . . 40

33 “Act." “Omission" .. .. .. .. ..38

34 Acts done by several persons in furtherance of common intention . . 40

35 When such an act is criminal by reason of its being done with a criminal

knowledge or intention .. .. .. .. f5

36 . Effect caused partly by act and partly by omission . . . . 40

arrangement of sections

Sections; Page

37. Co-operation by doing one of several acts constituting an offence . . 46

3ft Persons concerned in criminal act may be guilty of different offences . . 47

39. *' Voluntarily " . . . . . . . . 47

40. 'Offence" .. ..49

41. " Special law ” .. .. ..60

42. " Local law " 50

43. " Illegal " " Legally bound to do ” 51

44. •'Injury" .. .. .. ..51

45. "Life" .. .. ..52

46. "Death" .. .. .. ..52

47. " Animal " . . 53

48. "Vessel" .. .. .. ..53

49. " Year " " Month " . . . . . . 53

50. 1 Section " . . . . . . . . 53

51. "Oath" ..53

52. " Good faith " . . . . . . 54

CHAPTER III.

OF PUNISHMENTS.

53. Punishments . . . . . . . . . . .56

54. Commutation of sentence of death . . . . . . . . 59

55. Commutation of sentence of transportation for life. . . . . . 60

56. Sentence of Europeans and Americans to penal servitude .. ..60

Proviso as to sentence for term exceeding ten years, but not for life . . 60

57. Fractions of terms of punishment . . . . 61

58. Offenders sentenced to transportation, how dealt; with until transported . . 61

59. Transportation instead of imprisonment .. .. ..61

60. Sentence may be (in certain cases of imprisonment) wholly or partly

rigorous or simple . . . . . . . 63

62 ! ) Repealed .. .. .. .. .. ..63

63. Amount of fine . . . . . . . . . . 64

64. Sentence of imprisonment ior non-payment of line . . . . ($5

65. Limit to imprisonment for non-payment of fine, when imprisonment and

fine awardable . . . . . . . . . . 66

66. Description of imprisonment for non-payment of fine . . . . 69

67. Imprisonment for non-payment of fine, when offence punishable with line

only . . . . . . . . 69

68 . Imprisonment to terminate on payment of fine . . . . . . 09

69. Termination of imprisonment on payment of proportional part of fine . . 70

70. Fine leviable within six years or during imprisonment . . . . 70

Dcifth not to discharge property from liability . . . . . . 70

71. Limit of punishment of offence made up of several offences .. ..73

72. Punishment of person guilty of one of several offences, the judgment stating

that it is doubtful of which \ . . . 84

73. Solitary confinement . . . . . . . . 85

74. Limit of solitary confinement . . . . 86

75. Enhanced punishment for certain offences under Chapter Xll or Chapter

XVI 1 after previous conviction. .. ... ..87

CHAPTER IV.

GENERAL EXCEPTIONS.

76. Act done by a person bound, or by mistake, of fact believing himself

bound, by law . . . . . . 92

77. Act of Judge when acting judicially . . . . 99

78. Act done pursuant to the judgment or order of Court 101

THE INDIAN PENAL CODE

xii

Sections. • Page

79. Act done by a person justified, or by mistake of fact believing himself

justified, by law . . . . . . . . . . 102

80. Accident in doing a lawful act . . . . . . . . 105

81 . Act likely to cause harm, but done without criminal intent, and to prevent

other harm . . . . . . . . 108

82. Act of child under seven years of age . . . . .. ..112

83. Act of a child above seven and under twelve of immature understanding . . 112

84. Act of a person of unsound mind .. .. .. ..114

83. Act of a person incapable of judgment by reason of intoxication caused

against his will .. . ." .. .. ..121

86. Offence requiring a particular intent or knowledge committed by one who

is intoxicated . . . . . . . . . . 123

87. Act not intended and not known to be likely to cause death or grievous

hurt, done by consent . . . . . . ..124

88. Act not intended to cause death, done by consent in good faith for persons’

benefit .. .. .. .. .. .. 126

89. Act done in good faith for benefit of child or insane person, by or by con-

sent of guardian . . . . . . . . * 128

Provisos . . . . . . . . ..129

fK). Consent known to be given under fear of misconception . . . . 130

Consent of insane person .. .. .. ..130

Consent of child . . . . . . 130

91. Exclusion of acts which are offences independently of harm caused . . 132

92. Act done in good faith for benefit of a person without consent . . 132

Provisos .. .. .. .. .. ..132

93. Communication made in good faith . . . . . . 133

94. Act to which a person is compelled by^threats . . . . 134

95. Act causing slight harm . . ’ . . . . . . . . 136

Of thc'Right of Private Defence .

96. Things done in private defence .. .. .. ..138

97. Right of private defence of the body and of property . . 140

98. Right of private defense against the act of a person of unsound mind, etc. 142

99. Acts against which there is no right of private defence . . . . 143

Extent to which the right may be exercised . . . . . . 143

100. When the right of private defence of the body extends to causing death . . 150

101. When such right extends to causing any harm other than death .. 162

102. Commencement and continuance of the right of private defence of the body 153

103. When the right of private defence of property extends to causing death . . 154

104. When such right extends to causing any harm other than death .. 155

105. Commencement and continuance of the right of private defence of

property . . . . . . . . . • 156

106. Right of private defence against deadly assault when there is risk of

harm to innocent person . . . . . . . . 158

CHAPTER V. .

OF ABETMENT.

107. Abetment of a thing .. ..159

108 Abettor . . . . . . . . 166

108 A. Abetment in British India of offences outside it . . . . 169

109. Punishment of abetment if the Act abetted is committed in consequence

and where no express provision is made for its punishment . . 169

110. Punishment of abetment if person abetted does act with different intention

from that of abettor . . . . # ..173

111. Liability of abettor when one act abetted and different act done . . 174

Proviso . . . • • . . . . . . . 174

112. Abettor when liable to cumulative punishment for act abetted and for

act done . . .. . . .. .. .. 175

113. Liability of abettor for an effect caused by the act abetted different from

that intended by the abettor . . , . . . . , 176

1 14. Abettor present when offence is committed . . . . L76 #

ARRANGEMENT OF SECTIONS

xiii

Sections. Page

1 15. Abetment of offence punishable with death or transportation for life — 180

n if offence not committed . . . . . . . . ..180

„ if act causing harm be done in consequence . . . . ..180

HO. Abetment of offence punishable with imprisonment — .. ..181

if offence be not committed .. .. . . ..181

if abettor or person abetted be a public servant whose duty it is

to prevent offence ; .. .. .. .. ..181

117* Abetting commission of offence by the public or by more than ten persons 182
118. Concealing design to commit offence punishable wth death or transporta-
tion for life — . . ..184

if offence be committed . . . . . . ..184

if offence be not committed . . . . 186, 184

110. Public servant concealing design to commit offence which it is his duty to

prevent — . . . . . . . . 185

if offence be committed .. .. .. 187,185

if offence be punishable with death, etc. .. .. . . 185

if offence be not committed .. .. .. ..185

120. Concealing design to commit offence punishable with imprisonment — .. 186

if offence be committed .. .. .. . . ..186

if offence be not committed . . . . . . . . 18C

CHAPTER VA.

CRIMINAL CONSPIRACY.

120 A. Definition of criminal conspiracy .. .. ..186

120B. Punishment of criminal conspiracy .. . . ..180

CHAPTER VI.

OF OFFENCES AGAINST THE STATE.

121 . Waging or attempting to wage war, or abetting waging of war, against the

Queen . . . . . . , . . .

121 A. Conspiracy to commit offences punishable by section 121 . . ] ’

122. Collecting arms, etc., with intention of waging war against the Queen ! ’

128. Concealing with intent to facilitate design to wage war . *

124. Assaulting Governor General, Governor, etc., with intent to compel or

restrain the exercise of any lawful power
124 A. Sedition

125. Waging war against any Asiatic Power in alliance with the Queen

1 26. Committing depredation on territories of Power at peace with the Queen !

127. Receiving property taken by war or depredation mentioned in sections 125

and 126

1 28. Public servant voluntarily allowing prisoner of State or war to escape

129. Public servant negligently suffering such prisoner to escape .. * ‘

180. Aiding escape of, rescuing or harbouring such prisoner

194

197

199

200

200

201

210

211

212

212

213

213

CHAPTER VII.

OF OFFENCES RELATING TO THE ARMY ANt> NAVY.

181. Abetting mutiny, or attempting to seduce a soldier, sailor or airman

from his duty .. ^ 215

182. Abetment of mutiny, if mutiny is committed in consequence thereof ! . 216

183. Abetment of assault by soldier, sailor or on his superior officer, when in

or airman execution of his office .. .. 216

134. Abetment of such assault, if the assault is committed • • • • 21 7

xiv

THE INDIAN PENAL CODE

Sections.

* Page

135.

136.

137.

138.
138A

139.

140.

Abetment of desertion of soldier or airman,— or sailor
Harbouring deserter •• •• . • ■ .. •*

Deserter concealed on board merchant vessel through negligence
Abetment of act of insubordination by soldier, airman or sailor
Application of foregoing sections to the Indian Marine Service. .
Persons subject to certain acts Articles of v\ ar
Wearing garb or carrying token used by soldier, sailor or airman

of mastei

217

217

218
219
219

219

220

CHAPTER VIII.

OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY.

141. Unlawful assembly ••

142. Being member of unlawful assembly

143. Punishment . . * • . V

144 Joining unlawful assembly, armed with deadly weapon . .

145. * Joining or continuing in unlawful assembly, knowing it has been com-

manded to disperse

146. Rioting

147. Punishment for rioting

148 Rioting, armed with deadly weapon . . • •

149 Every member of unlawful assembly guilty of offence committed in pro-

secution of common object • • • • ■

150. Hiring, or conniving at hiring, of persons to join unlawful assembly

151. Knowingly joining or continuing in assembly of five or more persons after

it has been commanded to disperse

1 52 . Assaulting or obstructing public servant when suppressing riot, etc.

153. Wantonly giving provocation, with intent to cause riot—

if rioting be committed
if not committed

153 A. Promoting enmity between classes ■ • •• t .

154. Owner or occupier of land on which an unlawful assembly is held

155. Liability of person for whose benefit riot is committed . .

156. Liability of agent of owner or occupier for whose benefit riot is committed
157^ Harbouring persons hired for an unlawful assembly

158. Being hired to take part in an unlawful assembly or riot
or to go armed . .

] 59. Affray

160. Punishment for committing affray

222

232

232

234

236

237
237
249

251

256

257

258

259
259
259
261
264
266

267

268
269

269

270

CHAPTER IX.

OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS.

161. Public servant taking gratification other than legak remuneration in res-

pect of an official act . . • • • • • • . . 271

162. Taking gratification, in order, by corrupt or illegal means, to influence

public servant • • • • • • • • . . 278

163. Taking gratification, for exercise of personal influence with public servant 279
164 Punishment tor abetment by public servant of offences defined in section

162 or 103 •• •• .. .. &79

165. Public servant obtaining valuable thing, without consideration, from per-

son concerned in proceeding or business transacted by such public servant 280

166. Public servant disobeying law, with intent to cause injury to any person 281

167. Public servant framing an incorrect document with intent to cause injury 283

168. Public servant unlawfully engaging in trade . . . . . . 283

169. Public servant unlawfully buying or bidding for property . . . . 284

170. Personating a public servant .. .. ,.285

171 . Wearing garb or carrying token used by public servant with fraudulent

intent . . • • ■ • • • • r • . 286

ARRANGEMENT OF SECTIONS

xv

CHAPTER IXA.

OF OFFENCES RELATING TO ELECTIONS.

Sections. p AGE

171 A. " Candidate/ 1 “ Electoral right ” defined . . . . . . 287

171B. Bribery .. .. .. . . .. .. 288

171C. Undue influence at elections. . . . . . . . . . 289

171D. Personation at elections . . . . . . . . , . 290

1 71 E. Punishment for bribery .. .. .. , 291

171F. Punishment for undue influence or personation at an election . . 292

1 71 G. False statement in connection with an election .. .. .. 293

1 71 H. Illegal payment in connection with an election .. .. 294

171-1. Failure to keep election accounts .. .. .. .. 294

CHAPTER X.

OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS.

172. Absconding to avoid service oi summons or other proceeding. . . . 295

173. Preventing service of summons or other proceeding, or preventing pub-

lication thereof . . . . . . . . ‘ 297

174. Non-attendancc in obedience to an order from pubic servant . . . . 298

175. Omission to produce document to public servant by person legally bound to

produce it . . . . . . . . . . 302

176. Omission to give notice oi information to public servant by person legally

bound to give it . . . . . . . . 303

177. Furnishing false information .. . . .. , f 305

178. Refusing oath or affirmation when duly required by public servant to make it 307

179. Refusing to answer public servant authorized to question . . . . 308

180. Refusing to sign statement .. .. .. .. . . 309

181. False statement on oath or affirmation to public servant or person autho-

rized to administer an oath or affirmation . . . . . . 309

182. False information, with intent to cause public servant to use his lawful

power to the injury of another person . . . . ..311

1 83. Resistance to taking of property by lawful authority of a public servant 318

184. Obstructing sale of property offered for sale by authority of public servant 320

1 85. Illegal purchase or bid for property offered for sale by authority of public

servant . . . . . . . . . . . . 320

186. Obstructing public servant in discharge of public functions .. .. 321

187. Omission to assist public servant when bound by law to give assistance . . 326

188. Disobedience to order duly promulgated by public servant . . . . 327

189. Threat of injury to public servant .. .. .. .. 333

190. Threat of injury to induce person to refrain from applying for protection

to public servant . . . . . . . . . . 334

CHAPTER XI.

OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE.

191. Giving false evidence .. .. • • 335

192. Fabricating false evidence .. .. .. .. 339

193. Punishment for false evidence .. .. . . . . 343

194. Giving or fabricating false evidence with intent to procure conviction of

capital offence ; . . . . • • • • 353

, (if innocent person be thereby convicted and executed) , . . . 359

XVI

THE INDIAN PENAL CODE

Eections. Page

195. Giving or fabricating false evidence with intent to procure conviction of

rr ?“ enc ? punishable with transportation or imprisonment . . . . 334

1 96. Using evidence known to be false , . . . . . 355

197. Issuing or signing false certificate .. .. ,, ' 357

198. Using as true a certificate known to be false . . . . . . 35$

199. False statement made in declaration which is by law receivable as evide ncc59

200. Using as true such declaration knowing it to be false . . , . 361

201 . Causing disappearance of evidence of offence, or giving false information :

to screen offender — . . . . . . . . . . 361

if a capital offence .. .. .. . .361

if punishable with transportation . . . . . . . . 361

if punishable with less than ten years’ imprisonment . . . . 361

202. Intentional omission to give information of offence by person bound to

inform . . . . . . , . # t 355

203. * Giving false information respecting an offence committed . . . . 365

204. Destruction of document to prevent its production as evidence . . 367

205. False personation for purpose of act or proceeding in suit or prosecution . . 368

206. Fraudulent removal or concealment of property to prevent its seizure as

forfeited or in execution . . ’ . . . . . , 369

207. Fraudulent claim to property to prevent its seizure as forfeited ot in exe-

cution . . . . . . . . . . . . 371

208. Fraudulently suffering decree for sum not due . . . . . . 372

209. Dishonestly making false claim in Court . . . . . . 372

210. Fraudulently obtaining decree for sum not due .. .. .. 373

211 . False charge of offence made with intent to injure . . . . . . 373

212. Harbouring offender — .. .. .. .. . . 335

if a capital offence . . . . . . . . . . 385

if punishable with transportation for life, or with imprisonment . . 386

213. Taking gift, etc., to screen an offender from punishment — . . . . 387

if a capital offence . . . . . . . . . , 387

if punishable with transportation for life, or with imprisonment . . 387

214. Offering gift or restoration of property in consideration of screening offender— 388

if a capital offence ; . . , . , , . . 389

if punishable with transportation for life, or with imprisonment . . 389

215. Taking gift to help to recover stolen property, etc. . . . . 391

216. Harbouring offender who has escaped from custody or whose apprehension

has been ordered — . . . . . , . , . . 393

if a capital offence ; . . p , , . . , 393

if punishable with transportation for life or with imprisonment . . 393

2 1 6A. Penalty for harbouring robbers 01 dacoits .. .. .. 395

216B. Definition of 0 harbour " in sections 212, 216 and 216A . . . . 395

217. Public servant disobeying direction of law with intent to save person from

punishment or property from forfeiture . . . . . . 395

218. Public servant framing incorrect record or writing with intent to save

person from punishment or property from forfeiture . . . . 397

219. Public servant in judicial proceeding corruptly making report, etc., con-

trary to law . . . . . . . , . , 400

220. Commitment for trial or confinement by person having authority* who

knows that he is acting contrary to law . . . . . . 401

221 . Intentional omission to apprehend on the part of public servant bound to

apprehend . . . . . . , . , . 492

222. Intentional omission to apprehend on the part of public servant bound to

apprehend person under sentence or lawfully committed . . . . 403

223. Escape from confinement or custody negligently suffered bv public servant 405

224. Resistance or obstruction by a person to his lawful apprehension . . 406

225. Resistance or obstruction to lawful apprehension of another person . . 407

2 25A. Omission to apprehend, or sufferance off escape, on part of public servant

in cases not otherwise provided for . . . . . . . , 4O9

225B. Resistance or obstruction to lawful apprehension, or escape or rescue, in

cases not otherwise provided for . . . . . . 410

226. Unlawful return from transportation .. . . * . . ..414

22 7. Violation of condition of remission of punishment . . . . 415

228. Intentional insult or interruption to public servant sitting in judicial

proceeding . . . . . . . . . , . . 416

$29. Personation of a juror or assessor .. t . 42J

ARRANGEMENT OF SECTIONS

xvii

CHAPTER XII.

* OF OFFENCES RELATING TO COIN AND GOVERNMENT STAMPS.

Sections. Page

230. " Coin " defined .. .. .. .. 422

Queen's coin . . . . . . . . . . . . 423

231. Counterfeiting coin .. .. .. . . . . 424

232. Counterfeiting Queen’s coin . . . . . . . . 426

233. Making or selling instrument for counterfeiting coin . . . . 426

234. Making or selling instrument for counterfeiting Queen's coin , . 427

235. Possession of instrument or material for the purpose of using the same

for counterfeiting coin ; if Queen's coin . . . . . . 428

236. Abetting in India the counterfeiting out of India of coin . . . . 430

237. Import or export of counterfeit coin . . . . . . 430

238. Import or export of counterfeits of Queen’s coin . . . . . . 431

239. Delivery of coin, possessed with knowledge that it is counterfeit .. 431

240. Delivery of Queen's coin, possessed with knowledge that it is counterfeit . ♦ 434

241. Delivery of coin as genuine, which when first possessed, the deliverer did

not know to be counterfeit . . . . . . . . 434

242. Possession of counterfeit coin by person who knew it to be counterfeit

when he became possessed thereof . . . . . . . . 435

243. Possession of Queen's coin by person who knew it to be counterfeit when

he became possessed thereof . . . . . . . . 436

244. Person employed in mint causing coin to be of different weight or com-

position from that fixed by law . . . . . . . . 437

245. Unlawfully taking coining instrument from mint . . . . . . 437

246. Fraudulently or dishonestly diminishing weight or altering composition

of coin . . . . . . . . . . . . 438

247. Fraudulently or dishonestly diminishing weight or altering composition

of Queen’s coin . . . . . . . . . . 439

248. Altering appearance of coin with ii tent that it shall pass as coin of different

description . . . . . . . . . . . . 439

249. Altering appearance of Queen’s coin with intent that it shall pass a? coin

of different description .. .. .. .. .. 439

250. Delivery of coin, possessed with knowledge that it is altered . . . . 440

251 . Delivery of Queen’s coin, possessed with knowledge that it is altered . . 440

252. Possession of coin by person who knew it to be. altered when he became

possessed thereof . . . . . . . . ..441

253. Possession of Queen’s coin by person who knew it to be altered when he

became possessed thereof . . . . . . . . 442

254. Delivery of coin as genuine which, when first possessed, the deliverer did

not know to be altered . . . . . . . . . . 442

255. Counterfeiting Government stamp .. .. .. . . 443

256. Having possession of instrument or material tor counterfeiting Govern-

ment stamp . . . . . , . . . . 443

257. Making or selling instrument for counterfeiting Government stamp . . 444

258. Salt* of counterfeit Government stamp. . .. .. .. 445

259. Having possession of counterfeit Government stamp . . . . 445

260. Using as genuine a C^overnment stamp known to be counterfeit . . 446

261. Effacing writing from substance bearing Government stamp, or removing

from document a stamp used for it, with intent to cause loss to
Government . . . . . . . . . . . . 446

262. Using Government stamp known to have been before used . . . . 447

*263. Erasure of mark denoting that stamp has been used . . . . 447

266A. Prohibition of fictitious stamps . . . . . . , . 448

CHAPTER XIII.

OF OFFENCES RELATING TO WEIGHTS AND MEASURES,

264. Fraudulent use of false instrument for weighing . . . . . . 449

265. Fraudulent use of false weight or measure . . . . . . 450

266. Being in possession of false weight or measure . . . . . . 451

267. Making or selling false weight or measure . . . . . . 453

ii

THE INDIAN PENAL CODE

xviii

CHAPTER XIV.

*

OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY, CONVENIENCE,

DECENCY AND MORALS.

Suctions. Pack.

2158. Public nuisance . . . . . . . . . . . . 454

209. Negligence act likely to spread infection of disease dangerous to life . . 402

270. Malignant act likely to spread infection of disease dangerous to life . . 464

271. Disobedience to quarantine rule . . . . . . . . 404

272. Adulteration of food or drink intended for sale . . . . . . 4(ir,

273. Sale of noxious food or drink . . . . . . . . 460

274. Adulteration of drugs . - . . . . . . . . 40S

270. Sale of adulterated drugs . . . . . . . . . . 408

270. Sale of drug as a different drug or preparation . . . . . . 469

277. Fouling water of pubile spring or reservoir .. .. . . 409

278. Making atmosphere noxious to health . . . . . . 470

279. Rash driving or riding on a public way . . . . . . 471

280. Rash navigation of vessel . . . . . . . . . . 475

281. Exhibition of false light, mark or buoy . . . . , . 475

282. Conveying person by water for hire in unsafe or overloaded vessel . . 470

283. Danger or obstruction in public way or tine ot navigation . . . . 470

284. Negligent conduct with respect to poisonous substance . . . . 478

28.i. Negligent conduct with respect to fire or combustible matter . . . . 47 9

280. Negligent conduct with respect to explosive substance ... 480

2S7. Negligent conduct with respect to machinery . . . . . . 481

2SS. Negligent conduct with respect to pulling down or repairing buildings . . 482

289. Negligent conduct with respect to animal . . . . . . 483

290. Punishment for public nuisance in cases not otherwise provided for . . \ S5

291. Continuance of nuisance after injunction to discontinue . . . . 480

292. Sale, etc., of obscene books, etc. . . . . . . . . 487

293. Sale, etc., of obscene objects to young persons .. .. . , 491

294. Obscene acts and songs .. .. .. .. ..491

2D4A. Keeping lottery-office . . . . . . . . . . 492

CHAPTER XV.

OF OFFENCES RELATING TO RELIGION.

295. Injuring or defiling place of worship, with intent to insult the religion of

any class . . . . . . . . . . , , 497

295 A. Deliberate and nalicious acts a tended to outrage her religious puttings of

any class, by insulting its religior or religious belifs. . . . . 499

296. Distributing religious assembly .. ,. ..501

297. Trespassing on burial-places, etc. . . . . . . -,0:5

298. Uttering words, etc., with deliberate intent to wound religious feelings . . 5 or,

CHAPTER XVI.

OF OFFENCES AFFECTING THE HUMAN BODY.
Of Offences Affecting Life .

299. Culpable homicide

300. Murder

When culpable homicide is not murder

301. Culpable homicide by causing death of person other than person whose

death was intended

302. Punishment for murder

303. Punishment for murder by lifc-convict . . * ’

304. Punishment for culpable homicide not amounting to murder . !

304 A. Causing death by negligence . . . . ’ * ‘

305. Abptment of suicide of child or insane person . . . ' t

506

517

518

544

546

563

563

568

574

ARRANGEMENT OF SECTIONS

xix

.Sections.

Pace.

306.

Abetment of suicide

. . 575

30*.

Attempt to murder

576

Attempts by life-convicts

. . 570

308.

Attf inpt to commit culpable homicide

..581

309.

Attempt to commit suicide

. . 582

310.

Thug

. . 583

311.

Punishment

. . 583

Of the causing of Miscarriage, of Injuries to Unborn Children, of the Exposure of
Infants, and of the Concealment of Births.

312.

313 .

314.

315.

3I«.

317.

31 8.

319.

320.

321.

322.

323.

324.

325.

326.

327.

328.

329.

330.

331.

332.

333.

334.

335.

336.

337.

338.

339.

340.

341.
•342.

343.

344.

345.

346.

347.

348.

Causing miscarriage . . . . . . . . . . 583

Causing miscarriage without woman's consent . . . . . . 585

Death caused by act done with intent to cause miscarriage • . . . 586

if act done without woman's consent . • . . • • . . 586

Explanation . . . . . . . . . . ■ * 586

Act done with intent to prevent child being born alive or to cause it to die 587
Causing death of quick unborn child by act amounting to culpable homicide 588
Exposure and abandonment of child under twelve years, by parent or
person having care of it . . . . . . . • • • 588

Concealment of birth by secret disposal of dead body . . 591

Of Hurt

Hurt .. .. .. .. .. *.

Grievous hurt
Voluntarily causing hurt
Voluntarily causing grievous hurt
Punishment for voluntarily causing hurt
Voluntarily causing hurt by dangerous weapons or means
Punishment for voluntarily causing grievous hurt
Voluntarily causing grievous hurt by dangerous weapons or means
Voluntarily causing hurt to extort property, or to constrain to an illegal
act

Causing hurt by means of poison, etc., with intent to commit an offence . .
Voluntarily causing grievous hurt to extort property, or to constrain to
an illegal act

Voluntarily causing hurt to extort confession, or to compel restoration
of property

Voluntarily causing grievous hurt to extort confession, or to compel
restoration of property .. .. ..

Voluntarily causing hurt to deter public servant from his duty

Voluntarily causing grievous hurt to deter public servant from his duty . .

Voluntarily causing hurt on provocation

Voluntarily causing grievous hurt on provocation

Act endangering life or personal safety of others

Causing hurt by act endangering life or personal safety of others

Causing grievous hurt by act endangering life or personal safety ol others

594

596

597

597

598
600
601
004

605

606

607

608

609

610
612

613

614
614
616
617

Of Wrongful Restraint and Wrongful Confinement.

Wrongful restraint . .

Wrongful confinement
Punishment for wrongful restraint
Punishment for wrongful confinement
Wrongful confinement for three or more days
Wrongful confinement for ten or more days

Wrongful confinement of person for whose liberation writ lias been issued
Wrongful confinement in secret

Wrongful confinement to extort property or constrain to illegal act
Wrongful confinement to extort confession, or compel restoration of property

619

622

624

625
627

627

628
629

629

630

Of Criminal force and Assault.

349. Force

350. Criminal Force ..

351. Assault ••

.. 631

.. 632

.. 634

THE INDIAN PENAL CODE

Sections. Page,

352. Punishment for assault or criminal force otherwise than on grave pro-

voaction . . . . . . • •

353. Assault or criminal force to deter public servant from discharge of his duty

354. Assault or criminal force to woman with intent to outrage her modesty

355. Assault or criminal force with intent to dishonour person, otherwise than on

grave provocation . . • • • • • • . * *

Assault oi criminal force 1 ft attempt to commit theft of property carried by

356 .

367.

358.

a person

Assault or criminal force in attempt wrongfully to confine a person
Assault or criminal force on grave provocation

Of Kidnapping, Abduction, Slavery and Forced Labour,

636

637
642

645

046

646
646

359. Kidnapping . .

360. Kidnapping from British India

361. Kidnapping from lawful guardianship . .

362. Abduction

363. Punishment for kidnapping

364. Kidnapping or abducting in order to murder . . . . • •

365 Kidnapping or abducting with intent secretly and wrongfully to confine

person

366. Kidnapping or abducting woman to compel her marriage, etc.

366 A. Procuration of minor girl . .

366B. Importation of girl from foreign territory . .

367. Kidnapping or abducting in order to subject person to grievous hurt,

slavery, etc. •• • • »• • • ••

368. Wrongfully concealing or keeping in confinement kidnapped or abducted

person • . • • ■ • • • • * . x

369. Kidnapping or abducting child under ten years with intent to steal from
its person

370. Buying or disposing of any person as a slave

371 . Habitual dealing in slaves

372. Selling minor for purposes of prostitution, etc.

373. Buying minor for purposes of prostitution etc.

374. Unlawful compulsory labour

647

647

648
057
658
660

661

662

666

668

669

670

671

672
674
674
679
681

Of Rape

375. Rape

376. Punishment for rape

Of Unnatural Offences.

377. Unnatural olfences • •

685

687

691

CHAPTER XVII.

OF OFFENCES AGATNST PROPERTY.
Of Theft.

378.

379.

380.

381.
382.

[heft .. . . • • • • • • • * 692

Punishment for theft . . • • • • • • • •

rheft in dwelling-house, etc. .. • • .. ••

rheft by clerk or servant of property in possession of master . . . . 714

rheft after preparation made for causing death, hurt or restraint, in order
to the committing of the theft .. .. .. ..717

Of Extortion.

383 Extortion

384. Punishment for extortion .. ••

385 Putting person in fear of injury in order to commit extortion
339 * Extortion by putting a person in fear of death or grievous hurt

.. 718
.. 720
.. 724

.. 725

ARRANGEMENT OF SECTIONS

xxi

Sections. Page.

387. Putting person in fear of death or of grievous hurt, in order to commit

extortion . . • ■ • * • • * • • • 725

338. Extortion by threat of accusation of an offence punishable with death or

•transportation, etc. . . . . . . • ■ • - 726

389. Putting person in fear of accusation of offence, in order to commit extortion 727

Of Robbery and Dacoity.

390.

391.

392.

393.

394.

395.
390

397.

398.

399.

400.

401.

402.

403.

404.

405.

406.

407.
4u8.
409.

410.

411.

412.

413.

414.

415.

416.

417.

418.

419.

420.

421.

422.

423.

424.

426.

465.

Robbery

When theft is robbery

When extortton is robbery . . . . . . . . . . 728

Dacoity . . • • • • • • • • • • 732

Punishment for robbery . . . . . . . . . . 732

Attempt to commit robbery . . . . . . . . . . 733

Voluntarily causing hurt in commit! in*; robbery .. .. ..734

Punishment for dacoity . . . . • • ■ • . . 735

Dncoity with murder .. .. •• .. 741

Robbery or dacoity, with attempt to a use death or grievous hurt . . 743

Attempt to commit robbery or dacoity when armed with deadly weapon . . 745

Making preparation to commit dacoity .. .. ..746

Punishment for belonging to gang of dacoits .. .. ..747

Punishment for belonging to gang of thieves . . . . . . 750

Assembling for purpose of committing dacoity . . . . . . 753

Of Criminal Misappropriation of Property.

Dishonest misappropriation of property . . . . • . 754

Dishonest misappropriation of property possessed by deceased person
at the time of his death . . . . . . • • . . 762

Of Criminal Breach of Trust.

Criminal breach of trust . . . . . . • • • . 764

Punishment for criminal breach of trust . . . . . . 773

Criminal breach of trust by carrier, etc. . . . . . . 77 8

Criminal breach of ti ust by clerk or servant . . . . . . 779

Criminal breach of trust by public servant , or by banker, merchant or agent 784

Of the Receiving of Stolen Property.

Stolen property • • • * • • • • . . 790

Dishonestly receiving stolen property . . . . . . . . 791

Dishonestly receiving property stolen in the commission of a dacoity . . 802

Habitually dealing in stolen property . . . . . . . . 804

Assisting in concealment of stolen property . . . . . . 805

Of Cheating.

Cheating . . . . • < •• . . 808

Cheating by personation . . . . • • . . 821

Punishment for cheating .. .. • • • • •. 822

Cheating with knowledge that wrongful loss may ensue to person whose
interest offender is bound to protect . . . . . . 826

Punishment for cheating by personation .. .. .. 826

Cheating and dishonestly inducing delivery of property . . . . 827

Of Fraudulent Deeds and Dispositions of Property.

Dishonest or fraudulent removal or concealment of property to prevent

distribution among creditors .. .. .. ..837

Dishonestly or fraudulently prevent debt being available for creditors . , 838
Dishonest or fraudulent execution of deed of transfer containing false state-
ment of consideration . . . . • • . . • • 669

Dishonest or fraudulent removal or concealment of property . . 840

Of Mischief .

Mischief

Punishment for mischief

.. 842
.. 851

xxii

THE INDIAN PENAL CODE

Sections. Page

427. Mischief causing damage to the amount of fifty rupees . . .. 852

428. Mischief by killing or maiming animal of the value of ten rupees . . 854

429. Mischief by killing or maimfhg cattle, etc., of any value or any animal of

the value of fifty rupees . . . . . . . . * . . 855

430. Mischief by injury to works of irrigation or by wrongfully diverting water 850

431 . Mischief by injury to public road, bridge, river or channel . . . . 859

432. Mischief by causing inundation or obstruction to public drainage attended

with damage . . . . . . 860

433. Mischief by destroying, moving or rendering less useful a light-house or

sea-mark .. .. .. .. .. 861

434. Mischief by destroying or moving, etc., a land-mark fixed by public authority 861

435. Mischief by fire or expolsive substance with intent to cause damage to

amount of one hundred or (in case of agricultural produce) ten rupees 862

436. Mischief by fire or explosive substance with intent to destroy house, etc. . . 863

437. Mischief with intent to destroy or make unsafe a decked vessel or one of

twenty tons burden . . . . . . . . . . 865

438. Punishment for the mischief described in section 437 committed by fire or

explosive substance . . . . . . . . . . 865

439. Punishment for intentionally running vessel aground or ashore with intent

to commit theft, etc. . . . . . . . . . . 866

440. Mischief committed after preparation made for causing death or hurt . . 866

Of Crim in al T resp a ss .

441. Criminal trespass .. 867

412. House-trespass . . . . . . . . 874

443. Lurking house-trespass . . 876

444. Lurking house-trespass by night 877

445. House breaking . . . . 877

446. House breaking by night . . . . . . . . 879

447. Punishment for criminal trespass . . 879

448. Punishment for house-trespass . . . . . . 882

449. House-trespass in order to commit offence punishable with death . . 884

450. House-trespass in order to commit offence punishable with transportation

for life . . . . . . . . . . . . 884

451 . House-trespass in order to commit offence punishable with imprisonment . . 885

452. House-trespass after preparation for hurt, assault or wrongful restraint . . 886

453. Punishment for lurking house-trespass or house breaking . . . . 887

454. Lurking house-trespass or house breaking in order to commit offence

punishable with imprisonment . . . . . , . . 888

455. Lurking house-trespass or house breaking after preparation for hurt,

assault or wrongful restraint . . . . . . . . 889

456. Punishment for lurking house-trespass or house breaking by night . . 889

457. Lurking house-trespass or house breaking by night in order to commit

offence punishable with imprisonment . . , . . , 891

458. Lurking house-trespass or house breaking by night, after preparation for

hurt, assault or wrongful restraint . . . . . . 893

459. Grievous hurt caused whilst committing lurking house-trespass or house-

breaking . . . . . . . . . . . . 894

460. All persons jointly concerned in lurking house-trespass or house breaking

by night punishable where death or grievous kfart caused by one of
them . . . . . . . . . . . . 895

461. Dishonestly breaking open receptacle containing property .. .. 896

462. Punishment for same offence when committed by person entrusted with

custody • . . . . . . . . . , . . 897

CHAPTER XVIII.

OF OFFENCES RELATING TO DOCUMENTS AND TO TRADE OR

PROPERTY-MARKS.

463. Forgery . . . . . . . . 898

464. Making false document ' .. .. , . 905

466. Punishment for forgery . . . . . . . . , , 917

ARRANGEMENT OF SECTIONS

xxiii

Sections.

Page

466. Forgery of record of Court or of public register, etc.

46?. Forgery of valuable security, will, etc. '*

468. Forgery for purpose of cheating . . . .

469. Forgery for purpose of harming reputation . .

470. Forged document

471. Using as genuine a forged document

472. Making or possessing counterfeit seal, etc., with intent to commit forgery

punishable under section 467

473. Making or possessing counterfeit seal, etc., with intent to commit forgery

punishable otherwise

474. Having possession of document described in section 466 or 467, knowing

it to be forged and intending to use it as genuine

475. Counterfeiting device or mark used for authenticating documents described

in section 467, or possessing counterfeit marked material

476. Counterfeiting device or mark used for authenticating documents oilier than

those described in section. 467 or possessing counterfeit marked material

477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or

valuable security
477- A. Falsification of accounts

922

924

929

930
930
930

939

940

940

941

943

943

945

Of Trade. Property and Other Marks.

478. Trademark .. .. .. .. .. .. 950

479. Property mark . . . . . . . . . . . , 954

480. Using a false trade mark . . . . . . . . . . 955

481. Using a false property mark .. .. . , .. 957

482. Punishment for using a false trade mark or property mark .. .. 958

483. Counterfeiting a trade mark or property mark used by another . . 961

484. Counterfeiting a mark used by a public servant .. .. .. 9621

485. Making of possession of any instrument for counterfeiting a trade mrrk

or property mark . . . . . . . . . . 963

486. Selling goods marked with a counterfeit trade mark or property mark . . 963

487. Making a false mark upon any receptacle containing goods . . . . 966

488. Punishment for making use of any such false mark . . • . . 967

489. Tampering with property mark with intent to cause injury . . . . 967

Of Currency Notes and Bank-Notes.

489 A. Counterfeiting currency notes or bank-notes . . . . . . 968

489 B. Using as genuine forged or counterfeit currency-notes or bank-notes . . 969
489 C. Possession of forged or counterfeit currency notes or bank-notes . . 970

489 D. Making or possessing instruments or materials for forging or counterfeiting

currency notes or bank-notes . . . . . . . . 970

CHAPTER XIX.

OF THE CRIMINAL BREACH OF. CONTRACTS OF SERVICE.

490. [Repealed,] < .. .. .. ..971

491. Breach of contract to attend on and supply wants of helpless person . . 972

492. [Repealed], .. .. .. .. ..972

CHAPTER XX.

OF OFFENCES RELATING TO MARRIAGE.

493. Cohabitation caused by a man deceitfully inducing a belief of lawful

marriage . . . . . . . . . . . . 972

494. Marrying again during life-time of husband or wife . . . . 973

495. Same ofience with concealment of former marriage from person with whom

# subsequent marriage is contracted . . .. .. •• 977

xxiv

THE INDIAN PENAL CODE

Sections. Page.

490. Marriage ceremony fraudulently gone through without lawful marriage . . 978

497. Adultery . . . . . • . • • • • • 978

498. Enticing or taking away or detaining with criminal intent a married woman 983

CHAPTER XXI.

Of Defamation.

499. Defamation . . . . . . . . . . . . 990

Imputation of truth which public good requires to be made or published . . 990

Public conduct of public servants . . . . . . . . 991

Conduct of any person touching any public question . . . . 991

Publication of reports of proceedings of Courts . . . . . . 991

Merits of case decided in Court, or conduct of witnesses and others

concerned . . . . . . . . . . . . 991

Merits of public performance . . . . . . . . 992

Censure passed in good faith by person having lawful authority over

another . . . . . . . . . . . . 992

Accusation preferred in good faith to authorised person . . . . 992

Imputation made in good faith by person for protection of his or other
interests . . . . . . . . . . . . 993

Caution intended for good of person to whom conveyed or for public good 993

500. Punishment for defamation . . . . . . . . . . 1030

501. Printing or engraving matter known to be defamatory .. .. 1034

502. Sale of printed or engraved substance containing defamatory matter . . 1035

CHAPTER XXII.

OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE.

503. Criminal intimidation .. .. .. . . , . J03ft

504. Intentional insult with intent to provoke breach of the peace . . 1038

505. Statements conducing to public mischief .. .. < 1040

506. Punishment for criminal intimidation .. .. . f . , jo 4 j

If threat be to cause death or grievous hurt, etc. " . . u> 4 J

507. Criminal intimidation by an anonymous communication . . . , 1043

508. Act caused by inducing person to believe that he will be rendered an object

of the Divine displeasure .. . . . . , , 1043

509. Word, gesture or act intended to insult the modesty of a woman . . 1044

510. Misconduct in public by a drunken person /. .. . . ]046

CHAPTER XXIII.

OF ATTEMPTS TO COMMIT OFFENCES.

511. Punishment for attempting to commit offences punishable with transporta-

tion or imprisonment . . . . , . # # t # 1047

Statement of Repeals and Amendments.

Ss. 1 and 2 repealed in part

S. 4 substituted by

S. 5 repealed in part by

S. 15 jepeated in part by

S. 21 amended by

S. 28 amended by

S. 34 substituted by

S. 40 substituted by

S. 40 amended by

S. 40 amended by

S. 40 amended by

S. 56 amended by

Ss. 61 and 62 repealed by

S. 64 amended by

S. 64 amended by

S. 67 amended by

S. 71 amended by

S. 73 amended by

S. 75 substituted by

S. 108A added by

Ss. 120 A and 120B (Chapter VA) inserted by
S. 121 amended by
S. 121 A inserted by
S. 121 A amended by . .

S. 122 amended by
S. 124 A added by
S. 124 A substituted by
S. 131 amended by
S. 138A added by
Ss. 131-138 amended by
S. 153A added by
S. 130 ameneed by . .

Ss. 162 and 163 amended by

Ss. 171A to 171-1 (Chapter IXA) inserted by

S. 177 amended by

S. 178 amended by

S. 181 amended by

S. 182 substituted by . . . .

§. 193 Explanation 1, repealed in part by

Ss. 194 and 195 amended by

S. 203 amended by

S. 212 amended by

S. 214 amended by

S. 214 repealed in part by

S. 216 amended by . . 9

Ss. 216A and 216B inserted by

Ss. 222 and 223 amended by

S. 225- A inserted by

S. 225A substituted by

S. 225B inserted by

S. 225B substituted by. .

S. 230 amended by

S. 230 amended by

S. 263A added by

S. 294 substituted by

S. 294A inserted by

S. 304A inserted by

S. 307 amended by

S. 307 Illustration (c) amended by

Act 12 of 1891 (Schedule)

Act 4 of 1898, s. 2.

Act 14 of 1870 (Schedule)

Act 12 of 1891 (Schedule)

Act 39 of 1920, s. 2.

Act 1 of 1889, s. 9.

Act 27 of 1870, s. 1.

Act 27 of 1870, s. 2.

Act 8 of 1882, s. 1 .

Act 10 of 1886, s. 21 (1).

Act 8 of 1913, s. 2.

Act 27 of 1870, s. 3.

Act 16 of 1921, s. 4.

Act 8 of 1882, s. 2.

Act 10 of 1886, s. 21 (2).

Act 8 of 1882, s. 3.

Act 8 of 1882, s. 4.

Act 8 of 1882, s. 5.

Act 3 of 1910, s. 2.

Act 4 of 1898, s. 3.

Act 8 of 1913, s. 3.

Act 16 of 1921, s. 3.

Act 27 of 1870, s. 4.

Act 16 of 1921, s. 2.

Act 16 of 1921, s. 2.

Act 27 of 1870, s. 5.

Act 4 of 1898, s. 4.

Act 27 of 1870, s. 6.

Act 14 of 1887, s. 79.

Act X of 1927.

Act 4 of 1898, s. 5.

Act XIV of 1932.

Act 18 of 1887, s. 18 (2).

Act 39 of 1920, s. 2.

Act 3 of 1894, s. 5.

Act 10 of 1873, s. 15.

Act 10 of 1873, s. 16.

Act 3 of 1895, s. 1.

Act 13 of 1889 (Schedule).

Act 9 of 1890, s. 149.

Act 3 of 1894, s. 7.

Act 3 of 1894, s. 7.

Act 8 of 1882, s. 6.

Act 10 of 1882.

Act 10 of 1886, s. 23.

Act 3 of 1894, s. 8.

Act 27 of 1870, s. 8.

Act 27 of 1870, s. 9.

Act 10 of 1886, s. 24 (1).

Act 27 of 1870, s. 9.

Act 10 of 1886, s. 24 (1).

Act 19 of 1872, s. 1.

Act 6 of 1896, s. 1 (1) and (2)
Act 3 of 1895, s. 2.

Act 3 of 1895, s. 3.

Act 27 of 1870, s. 10.

Act 27 of 1870, s. 12.

Act 27 of 1870, s. 11.

Act 12 of 1891 (Schedule).

S. 309 amended by
Si 335 amended by

Act 8 of 1882, s. 7.
Act 8 of 1882, s. 8,

iii

xxvi

THE INDIAN PENAL CODE

S. 375 amended by
S. 410 amended by
S. 410 repealed in part by

S. 435 amended by
S. 477A added by
Ss. 478 to 489 substituted by
Ss. 489A to 4S9D inserted by
S. 505 substituted by

In so far as this Code is inconsistent with the
Sindh Frontier Regulations, 1872, it is super-
seded by that Regulation in the Sindh Front-
ier District by
Ss. 292 and 293* amended by

S. 366 amended by

Ss. 3 66 A and 366B added by

Ss. 372 and 373 amended by

Ss. 375 and 376 amended by

Act 10 of 1891, s. 1.

Act 8 of 1882, s. 9.

Act 8 of 1882 and Act 12 of 1891
(Schedule).

Act 8 of 1882, s. 10. *

Act 3 of 1895, s. 4.

Act 4 of 1889, s. 3.

Act 12 of 1889, s. 2.

Act 4 of 1898, s. 6.

Reg. 5 of 1872, s. 11.

S. 2 of the Obscene Publications Act
(VIII of 1925).

Act XX of 1923.

Act XX of 1923.

Act V of 1924, and Act XVIII of
1 924 which has now been repealed
by Act XIII of 1930.

Act XXIX of 1925.

LIST OF ABBREVIATIONS.

A.C.

App. Ca.

A. and E.

A.

A. I. R.

A. L. J.

Alison

A. W. N.

b pp ::

B. and A.

B. and C.

Bam

Beav.

Bell. C. C.

Bing.

Bishop

Black

B. L. R.

Bom. H. C. R.

Bom. L. R.

Bur. L. R.

BurL. J.

Cald.

C.

C. L. J.

C. L. R.

C. P. L. R.

C. W. N

C. W. N Pat. Suppt,
C. and K.

C. and P.

Cainp.

C. B. N. S.

Cl. and F.

Cox. or Cox. C. C.
Cr. P. C.

C. P. D.

Dears. & B.

Dears. C. C.

Den. C. C.

E. and B.

East P. C.

Esp.

Ex. D. 1

j Appeal Cases.

Adolphus and Elli’s Reports.

Indian Law Reports, Allahabad Series.

All India Reporter.

Allahabad Law Journal.

Alison’s Criminal Law of Scotland.

Allahabad Weekly Notes.

Appendix.

Indian Law Reports, Bombay Series.

Barnwell and Aldcrson [K. B. Reports (1817-1822)].
Barnwell and Cress well's Reports.

Bamadiston's Reports.

Beavan’s Reports (1836-1866).

Bell’s Crown Cases Reserved, (1858-1860).
Bingham's Cases (Common Pleas, 1834-1860).
Bihsop’s Criminal Law.

Blackstone’s Commentaries.

Bengal Law Reports.

Bombay High Court Reports.

Bombay Law Reporter.

Burmah Law Reports.

Burmah Law Journal.

Caldecott’s Settlement Cases (K. B. 1776-1785).
Indian Law Reports, Calcutta Series. ‘

Calcutta Law Journal.

Calcutta Law Reports «

Central Provinces Law Reports.

Calcutta Weekly Notes.

Calcutta Weekly Notes, Patna Supplimcnt.
Carrington and Payne's Reports.

Carrington and Kirwan's Reports.

Campbell’s Reports.

Common Bench Reports, New Series.

Clarke and Finnelly Reports.

Cox’s Criminal Cases.

Criminal Procedure Code.

Common Pleas Division Reports.

Dearsley and B.

Dearsley’s Crown Cases.

Denison's Crown Cases.

Ellis and Blackburn’s Reports.

East's Pleas of the Crown.

Espinasse's Reports.

Exchequer Division Reports.

STATEMENT OF REPEALS AND AMENDMENTS

xxvii

P. and F.

Foster and Finlayson's Nisi Priiis Reports.

Fost, or Foster or Foster Cr. L.

Foster's Crown Law.

Hale

Hale, Fleas of the Crown.

Hawk

Hawkin's Picas of the Crown.

I. C.

Indian Cases.

K. B.

King’s Bench, Law Reports.

K. B. D.

King's Bench Division.

L.

Indian Law Reports, Lahore Series.

L. L. J.

Lahore Law Journal.

L. and C.

Leigh and Cave's Reports.

Ld. Raym.

Lord Raymond's Reports.

Leach.

Leach's Crown Cases Reserved.

Lewin C. C.

Lewin ’s Crown Cases.

L. R. C. C. R.

Law Reports Crown Cases Reserved.

L. J. M. C.

Law Journal, Magistrate's Cases

L. J.M. CN.S ..

Law Journal, Magistrate's Cases, New Series.

M.

Indian Law Reports, Madras Series.

M. H. C. R.

Madras High Court Reports.

M.L.J.

Madras Law Journal.

M. L. T.

Madras Law Times.

Mood or Moody C. C.

Moody's Crown Cases.

Moore, I. A.

Moore's Indian Appeals,

M. and M.

Moody and Malkin’s Reports.

M. W. N.

Madras Weekly Notes.

M. and W.

Mceson and Welby's Reports.

N. L. R.

Nagpur Law Reports.

Note

Notes appended to the Draft Penal Code, 1830.

N. W. P. H. C. R . .

North Western Provinces High Court Reports.

O.L.J.

Oudh Law Journal.

O'M. and H.

O’Malley and Hard Castle’s Election Cases.

P.

I. L. R. Patna Series.

P.L.J.

Patna Law Journal.

P. L. R.

Patna Law Reporter.

P. L. T.

Patna Law Times.

P. R.

Punjab Record.

P. W. R

Punjab Weekly Reporter,

P. J. L. B.

Printed Judgments of Lower Burmah.

O.B.

Queen's Bench Law Reports.

Q. B. D.

Queen's Bench Di vision.

R.

I. L. R., Rangoon Series,

R. and R. or R. and Ry.

Russel and Ryan’s Nisi Prius Reports.

Rat. Unrep. Cr. C.

Ratanlal's Unreported Criminal Cases.

Russel

Russel on Crimes and Misdemeanours.

Salk.

Salkeld's Reports.

S. J. L. B.

Select Judgment, Lower Burmah.

Stephen Digest Cr. L.

Stephen’s Digest of Criminal Law.

St. Tr.

State Trial.

T. R.

Term Reports.

T.L.R. •

Times Law Reports.

U. B. R.

Upper Burmah Rulings.

W. R. (Cr.)

Southerland's Weekly Reporter (Criminal Cases).

W. R. (Cr. L.) * . .

Southerland's Weekly Reporter, (Criminal Letters).

Weir

Weir's Criminal Rulings.

Wharton

Wharton's Law Lexicon.

TABLE OF CASES.

A

A. v. Joseph — 37, 173, 929.

Abaji Ramchandra — 941, 942.

Abalu Das — 530.

Abas Mirza — 016.

Abbas Ali, 25 C. 512—31, 32, 815, 899,
901, 902, 907, 911, 937.

Abbas Ali Saheb— 736, 740, 743.

Abbas Mandol — 064.

Abdar Rahman — 344.

Abduar Masjid — 960.

Abdul Ahad— 834.

Abdul Ali Fakir v. Netai Fakir — 706.
Abdul Aziz — 802.

Abdul Aziz v. Fazal Rahman, 1033.

Abdul Das — 531.

Abdul Gafur, 23 C. 896—324 325, 641, 910.
„ „ 26 C. W. N.— 996— 740.

„ ,, 6 Lah. 28—382, 384,

Abdul Gahur Sirkar — 064.

Abdul Gani, 49 B. 878—792, 805, 806.

„ „ 10 Cr. L. J. 617—918.

,, „ Sulleman — 838.

,, ,, v. Azizul Huq — 975.

Abdul Ghaffur— 910, 930.

Abdul Goffur Panchavat — 45, 568.

Abdul Hakim— 149, 156, 537, 910, 912.
Abdul Hakim Khan Chowdhury — 316.
Abdul Hamid, 13 C. 349—903, 908, 910.

„ „ 2 Pat. 134—225, 233.

Abdul Jalil— 240.

Abdul Kader — 720.

Abdul Kadir 20 C. W. N. 1267—864.

1 1 „ 3 A. 279—106, 362, 364, 387,

390.

Abdul Karim, 4 C. L. J. 92—012.

(f „ 14 A. L. J. 17-099.

„ „ (1914) P. R. No. 32-528.

„ ,, i\ Bullen — 24.

Abdul Khalique — 062, 690.

Abdul Latib Valad Abdul Rahiman, 2, 3,
791.

Abdul Latif-874.

Abdul Majid —430.

„ „ v. Krishnalal Nag, 337, 360,

361.

Abdul Rahaman, 9 C. L. J. 432—580.

,, „ 1 L. B. R. 153— 405.

„• ,, 3 R. 95- 191, 922.

„ Rahiman 21 M. L. J. 766-971.

„ „ 10 B. 580— 004.

„ „ 1 Weir. 218—420.

Abdul Rahim Khan Shahib — 138.
Abdul Rashid— 940, 957.

„ ,, Khan — 923.

Abdul Razak— 910.

Abdul Salim— 172, 189, 190, 191, 829,
922.

Abdul Sobhan v. Ramoni Mohan Chatter-
a j^p— 963.

Abdul Sather — 050, 651, 055, 066.

M tl v. Sm. Moti Bibi — 883.
Abdul Wadood Ahmed— 54, 1018, 1029.
Abdul Wahid Khan— 34.

„ ,, ,, v. Abdulla Khan — 359

300.

Abdul Washi— 352.

Abdul Wazed— 323.

Abdulla, 15 Cr. L. J. 265—831, 1053.

„ 24 Cr. L. J. 278—05.

„ 21 S. L. R. 244—192.

Abdullah, A. I. R. (1924) All. 233—226.

„ 17 A. L. J. 200—201.

„ 22 Cr. L. J. 705-329,331.

Abdulla Khan — 178.

Abdullah Khan, 37 C. 32—341.

Abdullah Ravathan — 1034.

Abdur Mashjid — 960.

Abdur Rahaman — 172, 334.

Abdur Rahaman Said — 561.

Abdus Sattar — 617.

Abtlakh Lall v. Sirnam Singh- -331, 332.
Abhi Misstr v. Larfimi Narain — 177, 178,
256.

Abhoy Chandra Chakra vcrty — 278.
Abhov Naidu v. Kaniappa Chottiar — 22.
Abinash Chandra Adilya v. Anand
Charan Pal— 322, 612, 641.

Abinash Chandra Sarkar — 701.

A bool Hossain — 79, 81, 803.

Abrath North Eastern Ry. Co. — 377.
Acchruram — 145.

Acharjy — 516.

Achuthe — 266.

Adabala— 605.

Adaikalammi v. Rtman — 899, 900, 909.
Adamali Talukdar — 45, 568.

Addaita Bhuiat'. Kali Das Dc — 27, 230, 324.
Ademma — 585.

Adlio— 362.

Adil Mahomed — 224, 541.

Adinarayan Iyer — 772.

Adivigadu — 790.

Administrator-General of Bengal v .

Premlal Mullik — 5.

Adolph Bi j o mse n — 1 4 .

Adu Sheikh— 588.

Adu Sikdar— 555.

Afizuddi Chowkidar — 139.

Agha Muhammad Yusu[ — 702.

Agra—, 158, 246.

Ah Soi — 546.

Ah Choang — 321.

Ahad Shah— 27, 276.

Ahcd Fakir— 241, 247.

Ahmad Shcro — 248.

Ahmed Ali, 11 W. R. 25-4, 346.

„ ,, 42 C. L. J. 215—902, 913, 921,

937, 938.

Ahmed Begta — 650.

Ahmed Hussain Khan, 31 A. 608 — 298.
Ahmed Hussain, 17 C. W. N. 990 — 321.

XXX

THE INDIAN PENAL CODE

Ahmed Klian -676.

Ahmed Din— 139, 140.

Ahmmed Sheikh— H 5, 149, 319.

Ahono Ahong — 415.

Aidrus Sahib — 353.

Aiiaz Hussain — 322, 411. 41?.

Ainuddin Chowkidar— 515.

Aiyaswami Aiyar v . Aiyaswaini Aiyar —
360.

Aiyavu — 648.

Ajay Ahmad — 346.

Ajgar Sheikh— 139. 152, 242.

Ajita — 752.

Ajudhi, 16 C r. L. J. 625—531.

Ajudhia — 50.

Ajudhia Prasad— 273, 276, 888.

Ajudhva — 82.

Akbar Ali, 7 L. L. T. 520—661.

Akbar Ali— 396.

Akbar Kazee — 684, 685.

Akbar Molla— 238, 244, 245.

Akbar Momin — 612, 638.

Akbar Shaikh— 664.

Akhoy Kumar Chakraborty — 378.

Akhoy Kumar Dey — 960.

Akhov Kumar v. Jagat Chunder — 719,
724.

Aknov Singh v. Ram^wa. Bagdi, 867, 870,
873, 876, 880, 881.

Akidullah— 853.

Akhtcar — 366.

Akhlu Mian — 238.

Akul Mahomed — 540.

Alengamanjuri Debi v. Sonamoney Debi —
7.

Alawal. 23 Cr. L. J. 3 — 409.

Albal Singh — 406.

Aldous v. Cornwell — 914.

Aldrcd— 204, 205.

Alec Aran Cohen v. Sashi Bhusan Das —
767.

Alex Pimento — 996, 1001.

Alexander — 533.

Alexander Ruffe — 578.

Algara Swami — 700.

Aigoo— 318. 1053.

Ali Ahmed, 22 Cr. L. J. 503—315.

Ali Ahmed, 55 C. L. J. 336—936.

Alibhai— 324.

Ali Fakir— 689.

Ali Hassan, 3 A. L. J. 149-899.

Ali Hassan, 28 A. 358—910, 912.

Ali Hojsain, 23 A. 306—713.

Ali Husain, 56 C. I.. J. 73—812, 836.

Ali Hussain Khan »•. Har Charan Das—

278

Ali Mia— 154.

Alt Mirza— 44, 745.

Ali Mahommed Kasim -776.

Ali Muhammad — 498.

All Soi— 546.

Alim Shaikh— 78, 81, 241.

Alimuddin Naskar— 178, 192.

Alingal Kunhiyan — 148, 153.

Allah Din— 533. 986.

Allah Ditta — 542.

Allapichai Ravathur v . Mohidin Bibce, —
AUahWadhya— 428.

Allen, 1 Mood C. C. 154—14.

„ 7 C. & P. 153—9.

„ 45 All. 272—420.

,, v . Allen— 983.

.» v . Llyod— 456.

AUpost v. Nuti — 493.

Allu— 799.

Alraja Naidu — 1027.

Alsop— 342.

Althauson— 974.

Alu, 12 Cr. L. J. 72—696.

Alu Kala— 806.

Alukhan— 806, 807.

Aman — 539.

Amar Ali — 671.

Amar Nath 5 A. 318—414.

Amar Nath, A. I. R. (1928) L. 945—825.
Amarsing Jetha— 402, 620, 623.
Amavasya Chinna Krishna Reddy t/.

Mavie Polliah — 871.

Amba Prasad — 208, 1032.

Ambaji — 297.

Ambica Prasad Singh — 931, 934.

Ambika Charan Roy — 562.

Ambika Charan Sarkar — 875.

Ambikalal— 148, 158, 228.

Ambika Singh, 5 P. 450—380.

Ambika Singh — 245, 249.

Amea Ayyar — 918.

Amceruddi — 78, 83.

Ameer Dores — 670.

Ameer Khan — 163.

Ameer Khan, 12 W. R. 35—651, 564.
Ameer Khan, 6 B. L. R. 393—104, 212
628.

Ameer Khan Mahammad Khan— 364, 398.
Amina — 673.

Amin Beg v. Saman— 975.

Aminullah — 243, 247.

Amir Ali v. Dukha Monia— 318.

Amir Hassan Khan— 763.

Amir Khan, (Rat. Unrep.) Cr. C. 273

Q4 yfl * '

Amir Khan, (1913) P. L. R. No. 183—639
Amiruddi, 40 C. L. J. 483—240
Amiruddin, 3 C. 412—397.

Amiruddin, 24 Bom. L. R. 534 — 182 277
„ 15 W. R. 26 — 196.

... „ A. I. R. (1923) Lah. 238—688.
Amirulla — 238, 243.

Ammoyec — 700.

Amode Ali Siklar — 175.

Amrita alias Tincowri Dhopa — 118
Ararita Bazar Patrika, 37 C. W. N. 104—
208.

Amrita Bazar Patrika. 23 C.W.N. 1067—
202, 264, 1062, 1064.

Amrita Bazar Patrika, 41 C. 173 — 417.
Amritalal— 778.

Amritalal Bose v. Corporation of Calcutta.
44, 64.

Amritalal Hazra — 188, 189. 190, 192.
Amrita Sonar— 424, 430.

Ananda Kishore — 203.

Ananda Laxman Bataji— 897.

Anandalal Bera— 319, 328,641.

Anandgir — 10.

Anandi— 527, 802.

Ananga Mohan Dutt— 816, 317.

TABLE OF CASES

Anantalal Pandit it. Madhusudan — 228.
Ananta Ram, 4 All. 293 — 348.

Ananta Ram, (1920) P. W. R. No. 8 of
1921 — 35, 886.

Anant Narayan — 904.

Anant Narayan Pattat — 480.

Anant Puranik — 199.

Anant Vinayak — 1065.

Anarawdin — 411.

Anath Nath Dey — 952.

Andal and Khamiso — 352.

Anderson — 14.

Andrews v. Chapman — 1014.

Andey Che tty — 310, 34o.

Anemya Nadan — 298.

Anesuddin — 65.

Anjga Valayan — 805.

Aniruddha Mana — 45, 568.

Anis Beg — 607.

Anna Lakman Bhintade — 854.

Annamal Chetti v. Mrs. Basch, 784, 789.
Annamali Odayar, 707.

Annasami Aiyanger — 948, 949.

Anne Wycherley — 585.

Annie Beasant v. Advocate-General of
Madras — 203.

Annee Khan — 86.

Anon, 4 M. H. C. R. (App.) 18 — 31 1.

,, 6 M. H. C. R. (App.) 27- 353, 474.

„ 5 M. H. C. R. (App.) 6 — 227.

3 M. H. C. R. (App.) 6 — 772.

,, 1 Cox. 250—433.

„ 1 Weir 395—676.

„ 1 Weir 575— 1001.

1 Weir 35—86.

Annookool Chundcr Nundy — 952, 966.

Antakke — 589, 590, 591.

Anthony, 1 Weir 230 — 470.

,, 33 M. 371—976.

Anthony Udaiyan v. Rayapudayar — 76, 83,
240, 599.

An unto — 54.

Anunto Rurnagat — 132, 544.

Anvar khan Valad Gulkhan — 80.

Aogston v. Abordeen Distt. Tramway Co.

—457.

Apalu — 559.

Appaduari Iyer — 756.

Appaji Bin Yadavrao — 26, 275.

Appaji Narayan — 282.

Appa Mallya — 370.

Appala Naidu — 698.

Appandanatha Nainer — 874*

Appanne Hegade — 40, 166.

Appasami, 12 M. 151 — 909, 821.
Appasami, 1 Mad. H. C. R. (Cr.) 375— 975.
Appasami Mudaliar — 411, 414.

Appasami v. Munisami — 461, 452.

Appaya — 51, 306, 307.

Appaya Tatoba — 312.

Aparti Charan Roy— 911, 913.

Apurba Krishna Bose — 202, 204, 206.
Aradhan Mundle v. Nvankhan — 29, 678.
Araz Sircar — 843, 847.

Ardeshur Merwanji — 74.

Arfan All— 95, 099, 700, 701.

Ariff Munshi— 244, 880, 881.

Arindra Rajbanshi — 244.

Arjan Singh — 208, 208.

Arjan Mai — 20, 3o4
Arjoon Singh — 493.

Arjun — 80.

Arjun Das — 799.

Arjunja Bewa — 586.

Arjun Suie — 413.

Arshedali — 974.

Arshcd Molla— 742, 801.

Arth Randra — 706.

Arton — 12.

Arunachalam — 070.

Arunacharan Chetty — 983.

Arunachala The wan — 745.

Arura— 39, 812, 831.

Arzao Bebee — 119.

Asa— 145, 639.

Aseruddin — 242.

Asfar Sheikh — 551.

Asha Gopal — 32, 552.

Ashrafali 21 C. W. N. 1152—552.

Ashroff Ali, 5 Cal. 281—52, 375.

Ashroff Ali, 6 All 129—406.

Ashutcsh Chakraverty — 552, 55 3.

Ashutosh Das Gupta v. Puma Chandra.

Ghosh— 1035.

Asutosh Ghosh — 226, 858.

Ashutosh v. Kumoda Ch. Ghosh — 812.
Qshutosh Mullick— 817, 834.

Asia — 15.

As imuddin Sheikh — 931, 935.

Asiruddin Ahmed — 538, 546, 601.

Asgarali Biswas — 82 8.

Askarali Pradhania — 1052.

Asmanat — 505.

Asmatulla Sirdar — 303.

Asrabuddin Sarkar v. Kalidoyal — 031, 936.
940.

Assaruddin — 242.

Assau Musalirakoth Kunni — 349.
Assistant Sessions Judge v. Ramshari
Asari — 13.

Assistant Sessions Judge of North Arcot
v. Ramammal — 10, 912, 921, 936.
Astley — 719.

Aston v. Heron — 737.

Aswini Kumar Chatterjee — 832.

Aswini Kumar Pal — 957, 964.

Ata Mahomed — 224.

Ararali — 381.

Ataulla v. Abimulla — 502.

Atchayya v. Gangayva — 23,

Athi Aiyar — 29.

Athinarayanswami Pillai v. Subier — 857.
Atma Ram — 599.

Atma Singh — 137, 270.

Attar Singh — 246.

Attorney — 310.

Attorney-General v. Bryant — 455.

„ v. Corporation of Not-

tingham — 457.

„ v. Proprietor of Brad-

ford Canal — 466.

,, v, Richmond — 455.

,, v. Todd Heat ley — 478.

Attorney-General for Hongkong v. Knok-
a-sina — 16.

Audheen Roy — 337.

Audley — 684.

Augada Ram Saha v. Nemai Chand — 1028.

***ii

THE INDIAN PENAL CODE

Aung Hla — 134.

Aushi Bibi — 551.

Australian Newspaper Co. r. Bennett —
1004.

Autar, 47 A. 309—362, 364.

Autar Singh— 561.

Avery, 28 L. J. M. C. 185—710.

8 C. & P. 496—928.

Avudayappa Mudaliar — 882.

Aydross — 253.

Ayodya Nath Parti — 701.

Ayyab, 26 A. L. J. 1391—971.
Ayyamperumal — 564. 560.

Azibulla Sarkar v . Udoy Santhal — 340, 353.
Azimoodeen — 38, 927, 935.

Azimuddi, 54 C. 237 — 549.

Aziz Ahmed, 1034.

Azizuddin — 286.

Azizur Rahaman — 250.

B

B. Dasappa — 397.

B. N. Sasmal — 333.

Babaji. 19 B. 207—1019.

Babaji, 17 B. 127—1026.

22 B. 770—327.

Baba Naya— 526, 541, 567.

Baban Khan Valad Maskoji — 396.
Babarali Biswas — 378.

Baboo Moondu — 601, 609.

Baboolun Hijrah — 127, 131, 514, 543,
567, 574.

Baboon Sheikh — 243.

Babulal — 9.

Babulal Kanayalal — 27.

Babu Nasya— 541, 567.

Babu Ram — 269, 337.

Babu Ram Kansari — 804.

„ Rai— 33, 815, 823.

„ Raut— 142, 150.

Babu Santa Jadav — 473.

Bacha Miah — 923.

BachaT, 5 S. L. R. 270—987.

Bachu Molla v. Sitaram — 239.

Backler — 915.

Badal Aurat — 925.

Badan Singh— 293, 900, 914.

Badlu Shah— 663, 670.

Badhu Khan— 359.

Badhu v. Mst. Lachmania — 238.

Badischc Aniline v. Manekji Shapurji,

Badri — 373.

Badri Gope — 146, 325.

Badri Prasad, 35 A. 63—922, 926, 927,
934.

„ „ 44 A. 538—733.

„ 40 A. 35—342, 343.

Badri Roy — 603.

Bagh Singh — 228.

Bahadur — 667.

Bahadur— 9 L. 371—117, 120.

Bahadura, 24 A. L. J. 216—297.

Bahadur Ali — 658.

Bahadur Molla— 6.

Bahajibin Bhau — 772.

Bahab 28 A. 481—144.

„ 3 A, L. J. 327—611.

Baharali $isi»as— I 314.

Baharuddin Mandal — 661.

Bahawal — 888.

Bahirahi Bin Krishnaji — 628.

Baibaya — 847. *

Baidyanath Bose — 9. •

Baija v. Baba — 1028.

Bai Jiba— 515, 605.

Baijnath, P. L. R. No. 165 of 1915—836.

„ 26 Cr. L. J. 513—227.

Baijnath Dhanuk — 228, 231.

Bailey — 715.

Bailiff of Romney Marsh v. Trinity
House — 475.

Baines — 798.

Bai Ratan — 309.

Bai Ruksh Mani — 973.

Bai Samorath — 621.

Bai Shanta v. Umrao Amir — 4, 18. 1019,
1020, 1026

Baishtabcharan Das v. Upendranath
Mitter— 465.

Baistab Charan Saha — 623.

Baivaju— 458.

Baizand Mawaj — 653.

Baji— 593.

Bajo Singh— 240, 253, 255, 604.

Baji — 593.

Bajrangi Gope — 146, 245.

Baju Jha — 30.

Baker — 342.

Baker v. Snell — 484.

Bakshi, 40 A. 43—312,316.

Bakshi Ram — 327.

Bakshish Singh— 528, 567.

Baktwar Singh — 835.

Bakthwari (Mt.) A.I.R. (1930) A. 45—363.
Bakhtawar Lai — 1085.

Baku Tukaram — 10, 12, 164, 169, 1047.
Bala, (1881) Rat. Unr. Cr. C. 160 — 365.

„ (1892) Rat. Unr. Cr. C. 627—901,

908.

Balai De— 639.

Balaku Jolahed — 142, 158.

Balamlal— 985.

Balaram, 7 W. R. (164) — 309, 310.

Balaya — 788, 802.

Balaya Somya— 792, 794, 798.
Baibhader— 300.

Balbhai Hargobind — 736.

Baldeo Keori — 560. *

Baldeo Das Tansuq Das v. Mahama d
Inamal Haq— 360.

Baldeo Prasad— 661.

Baldeo Sahai— 162, 227, 1064.

Bai Gangadhar Tilak, 6 Bom. L. R. 324

337.

» » .. 19 Bom. L. R. 21 1 —

—22, 208, 208. «

•• ,, 33 B. 221—210.

947

•• <• ,, 10 Bom. L. R. 848

—203, 206, 207, 209.
.. „ 22 B. 112 — 6, 204.

206. 206. 207, 208,
209.1032.

Balgounda Ramgonndo Patil. 918, 926.
Balgovmda Shaha— 781.

Balkrishna — 1019.

Balkrishna Gir — 868.

Balkrishna Govind Kulkarni— 18, 417. * <

'TABLE o£ cases

xxxiii

Balkrishna Narhkar — 846.

Balkrishna Vaman Kulkarini — 32, 33, 904,
916,948.

Ball, 10 Ch. D. 667 — 389.
i, 1 Camp. 325 — 433.

„ (1807) R. and R. 132—938.

Ball v. Ray — 482.

Ballia — 656.

Bal Mukund — 370.

Bal Mukund Ram v. Ghansam Ram —
873, 875, 880, 883, 890.

Balram Sahu — 634.

Balthasar, 33 C. 1032 — 12.

„ 41 C. 844—765, 769, 771, 776,

777.

Balu, 19 A. 311—458.

„ (1881) Rat. Unr. Cr. C. 172—121.

Balwant Singh, 15 Cr. L. J. 349—394.

„ „ P. R. No. 31 of 1918—17.

Bamford v. Tunley — 459.

Banaji Framji Munshi — 834.

Bana Punja — 76, 241, 259.

Banarasi Das — 949, 961.

Bandhu, (1894) Rat. Unr. Cr. C. 689—
„ 886, 891.

„ 22 A. L. J. 340—547.

„ 8 A. 51—760, 794.

Bandu Ebrahim — 627.

Baneo Madhab Ghose — 782, 786, 787.
Banessur Biswas — 929.

Bandhu Singh— 223, 227, 870, 867.

Banga Hadua — 242.

Bangeswari Ahir — 392.

Bankatram Laclimiram — 300, 353.

Bank of England v. Vagalino — 4.

Bankcy Behari Singh — 412.

Banks and Fenwick— 417, 419, 1010.

Banku Behari — 614.

Banna — 90.

Bansi — 845, 858.

Bansidhar Marwari — 381.

Bansi Lai — 988.

Bains i Sheikh — 934, 937, 925.

Banti Pande — 313.

Bantu — 560.

Banui — 80.

Banvari Magata — 84 1 .

Banwarilal, P. R. No. 20 of 1914—35
„ 25 A. L. J. 38—300.

Banwari Karmakar v. Gostha Behari
Karmakar — 857.

Baobu v. Lesiter — 1026.

Bapa Yadar— 423, 425.

Bapu Hasanali — 238.

Bapu Jagar — 457.

Bapuji Dayaram — 36O, 374.

Barada Kanta Pramanik — 325.

Baiada Kanta Sarkar — 343.

Baramji Challwalla — 777.

Barclay v. Pearson — 494.

Bardot v. The Augusta — 15.

Barendra Kumar Ghose, 52 I. A. 40 — 4, 40,
170, 176, 177, 192, 252, 447, 542, 554, 882.
Barendra Kumar Ghose, 28 C. W. N. 170 —
42, 44, 45, 46, 47, 159, 174, 252.
Barindra Kumar Ghose, — 190, 192, 193,
194, 195, 198, 199, 200.

Barkat, 19 A. 200—337, 338, 352.

Barlett v. Parker — 494.

Barlbw v. Terret, (1891) 2 Q. B. 107—467.

Barlow v. Govindram, 24 C. 364 — 951.
Barnard — 821.

Barnado v. Hugh — 652.

Baroda Kant — 399.

Baroda Kanta Pramanick — 321, 325.
Barret, 15 Cox. 658 — 658.

Barret, v. Long, 3 H. L. C. 395 — 1076.
Barromul v. Allain — 93.

Basant, 27 C. 420 — 412.

Basanta Kumar Ghatak — 90.

Basanta Kumar Gossami — 663.

Basanta Kumar i v. Corporation of Cal-
cutta — 66.

Basanta Lall — 412.

Basapa Shivappa — 370.

Basava — 677.

Bashika Chari — 872.

Bashir Ahmed Khan — 797.

Basiruddi, 21 C. 827—233, 237, 240, 255.
Basiruddin Sheikh — 565.

Basiruddin — 83.

Baskervillo — 900.

Basso Ranuali — 89.

Basumati Adhikarini v. Budram Kolita —
1019, 1020.

Bata Singh — 12.

Bateman — 914.

Batcshar — 76.

Batiram Koet v. Bhanda Ram Koet — 988.
Batubhai Ganasham — 699.

Batwakhan — 1051.

Bava Chel la — 794, 796.

Bawaji — 603.

Bawool Manji — 716.

Bayna — 18.

Bazid — 871.

Beale— 685.

Beamish v Beamish — 976.

Beatty v. Gillbanks — 230, 258, 503.
Bechar— 986, 987.

Bechar Anop — 141, 147.

Bechoo Sant — 530, 532, 614.

Bechu Mollah Sio Ram Singh — 239.
Bcgarayi Krishna — 113.

Begu, 52, 1. A. 191—233, 244, 348, 549, 695.
Begum Mahtoon — 373, 374.

Behala Bibi — 363, 367.

Behari — 4.

Beharilal— 301.

Behari Mahton — 233, 254.

Bohari Singh— 39, 402.

Beja— 751, 752.

Bell— 430.

Belambal — 985.

Bela Singh — 658.

Belraj v. Jagat Pal— 6.

Beni— 12 A. L. J. 349—421, 457.

—23 A. 78—744.

Benito Lopez Christian Sattler — 15
Benjamin Bannen — 427.

Benjamin v. Storr — 457.

Bennett— 4 F and F. 1105 — 463.

,, 28 L. J.M. C. 28— 480.

„ Bell C. C. 1—107.

Bepin Behary Ganguly — 172.

Bepin Behari Saha v. Pranakul Mazumdar
—148. 229.

Bepin Chandra Pal — 308.

Berckefeld — 471.

Berhamdeo Rai— 703.

xxxiv

THE INDIAN PENAL CODE

Berriman — 592.

Beshor Bewa — 516, 595.

Bessozi v. Harris, 1 F. and F. 92 — 484.
Bevery — 116.

Bhabani Mudaliyar — 420.

Bhabuti — 750.

Bhadue — 548.

Bhagabati Sahai — 27.

Bhagai Dafadar — 26, 323.

Bhagat Singh — 528.

Bhagaman — 322, 324.

Bhagava Giriappa — 617.

Bhagavatty Perumall Piliay — 927.
Bhagawan Das — 273, 275, 572, 1011.
Bhagi— 470.

Bhagiram v. Abar — 864, 705, 756.
Bhagirath, 13 C. W. N. 1087—1016.

„ 3 A. 383—555.

Bhagirath Chowdhury — 602.

Bhagu — 769.

Bhagu Dhondi— 981.

Bhagwana — 892.

Bhagwan Chaggan — 614.

Bhagwan Din, 30 A. 568 — 526, 607, 724.

„ 16 A. L. J. 501— 881.

* „ ,, A. I. R. (1929) A. 935, 51.

52 A. 207—
724, 403.

Bhagwan Siugh v. Arjun Dutt — 99.
Bhagwant v. Kedari — 30.

Bhagwati Prosad — 121.

Bhagwat Saran Mistri — 702.

Bhagya — (Rat.) 503.

Bhairab Chandra Barua — 378, 379.
Bhairon Misir — 137.

Bhai Sankar v. Wadia — 1024.

Bhajan Das— 567, 665, 666.

Bhaji Bechar — 820, 724, 403.

Bhakta Khande— 777, 782.

Bhakoas Tutum — 345.

Bhaktawar Singh — 746.

Bhalchandra Trimbak XUndive— 226,
331.

Bhaktram v. Heeralal Koleta — 313.
Bharma — 351 .

Bhashyam Chetti— 338, 352.

Bhaskar Balwant Bhohatkar— 207.

Bbala Chula— 613.

Bhanwar, 18 A. L. J. 58—89.

if 42 A. 136—888.

Bharat 'Bepari — 565.

Bharma — 351.

Bharona — 352.

Bharosa — 90, 1055.

Bhoross — 796.

Bhavanishankar — 903, 910.

Bhawal— 89.

Bhawani Dutt —983.

Bhawani Sahu v. Prenia Sasln Christian

703.

Bhawani Sankar Haribhai— 348.
Bhawoojivaji v. Mulji Dayal — *>.>, 96, 144,

624.

Bheleka Aham — 118,121.

Bhicaji (1B62) Rat. Unr. Cr. C. 22—700.
Bhikaji (1884) Rat. Unr. Cr C 384—1010.
Bhikaji, Rat. unrep. Cr. C- 124 — 316.
Bhikalal — 379.

Bhika Mai— «0, 451 ,452.

Bhikambar Singh — 1026,

Bhikari Pali — 44.

Bhika Ram — 967.

Bhilai Khan — 66.

Bhikam Singh — 883, 876. •

Bhim Bahadur Singh — 697, 700.

Bhim Rao— 271, 273.

Bhoja— 740.

Bhokteram //. Heera Kolita — 312.

Bhola — 50.

„ 8 L. 331—872.

Bhola v. Punjan — 314.

Bhola Mahto — 146.

Bhola nath — 300.

Bholanath Mitter — 984.

Bholanatli Mullick — 245.

Bholar— 987.

Bhola Singh— 47, 828, 509.

Bholu— 753.

Bhola v — 938.

Bhona'— 749, 750, 752.

Bhondu Das — 42, 44, 45, 256, 273, 605.
Bhoobaneshwar Dutt — 298.

Bhooni Money Dasee v . Natobar Biswas
—997.

Bhuan Kahar — 382.

Bhuban Rotan Banerjee v. Tansuk Roy
Seraogi — 756.

BhudharmaJ Marwari v. Ramchandra
Mcrwari — 757, 769.

Bhugwan, 8 W. R. 65— 355. 356.

Bhugwan, 2 W. R. 9 — 355, 356.

Bhula— 788.

Bhungee Aheer — 650.

Bhup Singh — 240.

Bhure Mai — 331.

Bhusan — 705.

Bhusan Chandra Hazra v. Kanai Lai
Adya — 568.

Bhuta Santal v. Dama Santa! — 2, 657.
Bhutan — 573.

Bhut Nath Mandal — 792.

Bhutnath Dome — 148.

Bhut tan Raj wan — 573.

Bibhuti Bhusan i\ Bhuban Ram — 5, 9,
456.

Bibudhananda Chakravarty — 946.
Bichitranada v. Bhagbut — 2.

Bichik Aheer v. Anehuk Bhoonea — 80,
850.

Bidlia— 86.

Bidhoomookhee Dabee v. Srinath Haider
—658.

Bijoy Gopal Ghose v. Iswar Chandra
Kumar — 853.

Bikram Singh — 565, 567.

Bikram Ali Pramanick — 739.

Biku Koer v. J. Marsham — 228. «

Bilash Chandra Banerjee — 398.

Billinghurst — 189, 828, 830, 831, 1047.
Bimalacharan — 768, 783.

Bindheswari— 337, 338.

Binijha — 35.

Bipradas Giri v. Niradamoni Bcwa — 777.
Birbal Khalifa— 324, 635, 640.

Bir beck— 291.

Bird — 879.

Bird v. Jones— 622, 623.

Birendra Lai Bhaduri— 817, 824, 834.

TABLE OF CASES

XXXV

Birendra Nath Chatterjee v. Umanand
Mukhorjee — 358.

Birghu Singh — 300.

Birjaj Marwari — 812.

Birjoo Singh v. Kublal — 142, 223, 228.
Birkett — 900.

Birmingham Vinegar v. Powell —052.
Bisbakhi — 710.

Bishan Das, 27 A. 561 — 813.

„ „ 5 L. L. J. 272— 80, 81, 426.

Bishan Prasad — 320.

Bishen Singh, 3 P. 603™ 793.

Bishon Singh — 882.

Bisheshar, 9 A. 645—77, 253, 255.
Bisheswar 16 A. 124 — 376, 383.

„ Dayal, (1905) A. W. N. 93 —
914.

Bishna — 239.

Bishnu Banwar — 696.

Bishoo Manjec — 803.

Bishop— 41, 47, 94, 98.

Bishu Haider — 145.

Bisu Haidar v. Prabhat Ch. Chakra vert y —

412.

BLsser Misser — 460.

Bisseswar Dcy, — 274.

Bisses ur Roy — 760.

Biswanath Das v. Kesha b Chandra
Ghandabanik — 997.

Biswanath — 316.

Biswanath v. Kesha b — 1033.

Bisweswar Singh v. Bhola — 35.

Bithal— 329.

Blackburn v. Somcis— 471.

Blanchi C. Cripps — 590 .

Bluchman u. Simmons — 484.

Blythe v. Birmingham Water Works Co.
—472.

Boah Singh — 151.

BodduRamayaw. Chittari — 373. 936
Bodh Kissen Goala — 701
Bohra Bir Bal— 302.

Boidnath Singh — 716.

Bokaullah Mallick — 954.

Bolai De— 909.

Bolakee Jolahed — 537.

Bombay and Persian Steam Navigation
Co., Ltd. v. RubattinoCo.,Ltd. — 463.
Bombay Burma Trading Corporation, Ltd.

v. Mirih Md. Ali Sherazee — 104.
Bonigiri Pottigadu — 748, 750.

Bonomaly Shan — 383. m

Boober— 429.

Boodhan Ahir — 347.

Boodhoo Jolaha— 60.

Boodhooa — 62, 63.

Bomard Saunders — 644.

Barron — 100.

Borthwick v. Borthwick — 653.

Boss v. Lytton — 106.

Boston — 1054.

Boston Valad Fateh Khan — 112.

Boult — 913.

Bowerman — 788.

Bowers — 715.

Boy? Suukulamma — 590.

Boyce Kirk — 978.

Boye Marigadu — 530.

Bojstum Moochee — 759.

Bradlaugh and Annie Besant— 488.
Bradshaw — 124.

Brae— 267.

Brahma Dut — 980.

Brahmana v. Ram Krishna — 1001.

Braja Behari Barman — 206.

Bramwell — 290.

Branman — 915.

Brickbhan Singh — 611.

Brijaraj Marwari — 824.

Brijabhukan — 246.

Brijbafi — 851, 872, 873, 886.

Brijmohan Lai — 168, 399.

Brindaban — 315, 732.

Brindabon Ch. Das v. Ishaquaddin — 1031.
Brindaban u. G. T. P. Railway Co. — 755.
Brindaban Patna ik — 787.

Brisac — 162.

British American Tobacco Co. v> Mahboob
Buksh — 950.

Britt v. Robinson — 5.

Brock v. Copeland — 484.

Brojonarayan Pubraj — 483.

Brojo Nath Ghosh — 330.

Bromage v. Prosser — 401, 1009.

Brooke v. Evans — 1015.

Brooks v. Mason — 98.

Broombridge — 683.

Brown, 24 Q. B. D. 357— 1050
., I East P. C. 245—544.

,, 10 Q. B. D. 381—579.

,, (1870) L. R. 1 C. C. R. 244—592.

,, v. Ananda Lai Mullick— 378, 379.

, v. Dawson — 869.

Bryna — 814.

Budansa Rowther v . Fatima — 977.

Budara Janui — 2.

Budd u. Lucas — 9.

Buddhu— 984, 986.

Buddhu v. Babulal — 777.

Budduriddin — 550, 560.

Budha— 298, 887.

Budhan Khan — 795.

Budh Lai— 797.

Budh Sen— 311, 317.

Budh Singh— 80, 82, 700, 846, 874 881
Budh Reddi — 857.

Budhna, 26 A. L. J. 107 — 298.

Budhrool Hussein — 624.

Budipali Devasi Kamani — 123.

Buldeo — 653.

Bull— 169.

Bullock — 855.

Bunyon — 492.

Bur Singh — 970.

Burch — 813.

Burdett — 1000, 1032.

Burgess — 389.

Burjo Barick — 908.

Burke -796, 802.

Burke v. SLipp — 996.

Burnes v. Pennell — 813.

Burnett — 462.

Burns v. Nowell — 94.

Buron v. Denman — 104.

Burrah — 7.

Burton — 695.

Buta Singh, L. B. R (1872-1892} 334—

10 .

xxxvi

THE INDIAN PENAL CODE

Buta Singh 7 L. 306 — 13.

„ 1 P. R. 1917-892.

„ 26 Cr. L. J. 1440—659.

Butchi— 710.

Butt— 946, 948.

Butto Kristo Das — 26.

Byramji Edalji — 457.

Byramji Jamscthji Chaawalla — 757, 780,
781.

Byrne —

Bysagoo Noshyo — 516, 596.

C

C. G. D. Belts and Mahomed — 265.

C. S. Appa v . M. P. Marker — 1013.

C. T. Gurusamy v. D. K. S. Ebrahim — 925.
C. Simpson v. Mrs. E. Bachman — 758.

C. Srinibasam — 1048.

Cadd— 770, 783.

Cage Combe — 798.

Cahoon v. Mathews — 463.

Calder v. Halket—99, 100.

Callachand — 77.

Cama v. Morgan — 636.

Camolin — 684.

Campbell v. Spottiswoode — 1011.

Carlile, 1 Cox. C. C. 229—490.

„ 3 B. and Aid. 167—1015.

Carpenter — 781.

Carr— 347.

Carr and Wilson — 14.

Carr v. Francis Turner and Co.— 104.

Carter — 799.

Casement — 195.

Cassidy — 1048.

Cassun Kurrim v, Jones Hadjee Seedick —
1029.

Casy Mul— 739, 803.

Catherine Spillcr — 127.

Causley— 31, 902, 910, 937.

Cellular Clothing Co. v. Mexton — 952.
Chadwick — 914.

Chagma Saraogi — 303.

Chagan Dayatram — 274.

Chaitanlal — 315.

Chakalingam Pillai — 704, 707, 710.

Chokoo Mondal — 874.

Champadevi Pernulal — 1021, 1030.

Chand v. Ugar Sani — 830.

Chanda, 85 1. C. 151 — 161.

Chanda, 28 A. 204—845, 849.

Chandan Singh — 509.

Chandanlal — 7 69.

Chandaria — 88, 89, 767.

Chander Bhattacherjee — 552.

Chander Singh — 671.

Chander Prasad Singh — 69.

Chandi Charan Giri v. Gangadhar Pra-
dhan — 23.

Chandi Charan Nath — 341.

Chandika Prasad — 298.

Chandi Prasad v. Abdur Rahamati — 18, 50,
869, 908, 1049.

Chandiram— 189.

Chandi Prasad v . Evans — 881.
Chandkhasalabatkha — 893, 1051, 1054.
Chand Manal— 483.

Chando Bhuiya— 239.

Chandra Chandalini— 178, 274.

Chandra Coomar Sen — 611.

Chandra Kanta Bhattacharjee — 77, 78.

„ ,, Chakravorty — 323.

,, „ De — 330. •

,, ,, Kanjilal — 333.

,, ,, v . Kanylal — 329.

,, Kumar Missir — 343.

,, ,, Mitra v. Madhu Sudhan

De— 70.

„ „ De— 315.

,, Mohan Das Mondal — 598.

,, Mohan Singh — 245.

,, Nath Mukerjce v. E. I. Ry. — 333.
„ „ 7 Luck. 543—745.

„ Prasad — 789.

„ Sckhar Roy-«~299.

Chand u — 617.

Chanduka Singh — 300.

Chand ullah Sheikh— 139, 147, 148, 228, 229.
Changal Halapato v. Basarmal — 705.
Chan Hang Kill — 417.

Chahivora Kom Shidram Seth — 58, 582.
Chan Meeah — 340.

Channan Singh — 934.

Channing Arnold — 999, 1022.

Channuka Dhanuk — 238.

Charles Gogerly — 178.

,, Holmes — 461, 492.

„ Jones— 314, 381.

, , Moore — 456.

„ Nash — 33.

Charlotta — 95.

Charnock — 198.

Charoo Chunder Mooty Laut — 868.

Charu Chandra Ghose — 810, 829, 831.
Charu Nayiah— 705, 868.

Chatar Singh — 745.

Chatradhari Goala —

Chattar— 139.

Chatru Mallik— 908, 928.

Chatter Lai v. Thakur Pershad — 324.

„ Singh— 654.

,, Singh Damai — 883.

Chattock v. Bellamy — 778.

Chatur— 895.

Chaturbouj — 720.

Chatur Natha— 545, 595.

Chava Indrarani — 532.

Cheda Lai— 340, 384.

Cheddi— 382.

Cheddi Singh— 255.

Cheddu, 24 A. L. J. 178—244, 252.

Chegan Vithal— 619.

Chekutty— 651, 657.

Chellam Chetti — 834.

Che 11am Pillai— 206.

Chellum Naidu v. Ramasami — 1031. «

Chemon Garo — 979.

Chenchugadu — 480.

Chengamma Naidu — 858.

Chcnna Malli Gowdc — 382.

Chcnuiah — 465.

Cheria Koya — 2.

Cherry— 709.

Chet Singh, (1910) P. W. R. No. 21 of 1911
—1039.

„ ,, (1918) P. L. R. No. 97 of 1918

—304.

TABLE OF CASES

xxx vii

Cheta Mahto— 932, 035.

Chet tier — 756.

Chhibil Das — 151.

Chhakoo Mondal —

Chiareddi Munaya — 557.

Chidambara u. Thiramoni — 1026.

Chidam Baram Pillai v. Mahammad Khan
Shahib— 858.

*, 32 M. 3 (F. B.) —

180 .

Chidda, 24 A. L. J. 178—76, 83, 244, 252.
252.

Chiddah— 20, A. L. J. 564 -554.

Chilkani Ram — 8.

Chimanlal — 496.

Chiman Lai v. Ghulajp Mohiuddin — 375.
Chimanlal v. Jogiiban — 3.

Chinna Bhika — 548.

Chinna Gangappa — 362, 366.

Chinna Karuppa Mopan — 767.

Chinna Pa Vuchi — 548.

Chinna Ramana Gowd — 376, 382. 386.
Chinna Venkataswami v. Pedda Kisammal
—882, 869.

Chinibas Pal — 486.

Chinnakanu — 399.

Chinnappa Naidu — 853.

Chinnaswami Pillai v. Chairman of the
Arkonam Union — 642.

Chinniah — 467.

Chiranii Lai — 262.

Chisholm v. Boulton — 9.

Chittar— 392.

Chit Tha— 662.

Chockalingam Pillai — 704, 710, 777
Chodapa— 744, 760.

Chokor Haree — 744.

Chokrai — 465.

Cholay — 856.

Chotalal Lallubhai v. Nathabai — 1031.
Choota Lai Babur — 17.

Chotani Ranto — 256.

Chotialal v. Cheddilal — 315.

Chotta Hurry — 420.

Chottalal — 925.

Chottelal— 871, 873.

Chottey — 35.

Chotu Ally — 844.

Christian Olifier — 649, 650, 655.

Chulhan Ahir — 233.

Chullundee Paramanick— 614.

Chunder Narain v. Brojo Bhllab — 99.
Chunibhai Dahyabhai — 1039.

Chuni Lai — 205.

Chuni Lai Matilal — 332.

Chunni — 530.

Cfcunnoo — 711.

Chutour Chowkidar — 366.

Chyttam Brown — 79.

City of Montreal v. Standard Co. — 460.
Clarence— 131, 463, 685.

Clark— 760.

Clarke*— 686.

Cleary v . Booth— 130, 600, 636.

Clement — 1014.

Closs— 909.

Coggins — 179.

Coghlan — 1007.

OoRen v. Sashibhusan Das — 770,

Colelough — 932, 938.

Collector of Salem — 697.

Collier — 924.

Collins, 1 Cox. 57—913, 1050, 1051, 1052.
Collins, 9 C. and P. 456—203.

Colonel Bholanath— 1020, 1029, 1030. 1032,
1034.

Colmer — 592.

Colville, 26 C. 746—776.

Coney — 126.

Cooke, (1914) L. B. R. 319—495.

„ (1838) 8 C. & P. 582—904, 937.

Cooper, (1852) 3 C. Sc K. 318—756, 800.

„ (1877) 2 Q. B. D. 510—814.

Corporation of Calcutta v. Administrator
General of Bengal — 101.

Corporation of Calcutta v. Pagli — 466.
Coslet— 709.

Cotton v. Wood — 472.

Coverji — 169.

Cowasji v. G. I. T. Ry. — 270.

Cox — 838.

Cramp — 601.

Crane v. Lawrence — 476, 479.

Crawley — 466.

Cristi Manson and Woods u. Cooper — 964.
Critchley — 1001.

Crook — 128.

Cross— 455, 471, 476.

Crouch — 120.

Crowther — 903.

Cruse — 174.

Cuddy— 540.

Cuddy v. Le Cocq — 98.

D

Dabiruddin Mahammed- -330.

Dad Basaya — 852.

Dada Hammant Dani — 1037.

Dadubhai— 530, 531, 551.

Dacm Sarkar v. Batu Dhail — 973.

Daga Kumbi— 868, 869, 871, 874, 925.

Daji Mahadu — 803.

Dajiba, 61 B. 512—824.

Dal Singh— 974, 984, 986.

Dalip— 611, 325, 638, 642.

Dalip Singh, 2 L. 308—417.

„ ,, A. I. R. (1923) Lah. 155—151.

Dallibi— 548.

Dalu Sardar — 509.

Damodar Ram — 696, 712.

Damodaran — 570.

Damoder Dalji— 454.

Damoder Das — 880.

Damodhar v. Lai — 102.

Damri— 395.

Damri Ram — 303.

Damu Haree — 89.

Damukya Molla — 565.

Dandekar — 203.

Danesh Sheikh v. Tafir Mandal — 981.
Danger, 8 A. 252 — 363, 364.

Danger Khan— 86.

Daniel Lynch — 541.

Darajuddin Akanda — 653, 659.

Daras, 25 Cr. L. J. 1—558.

Darba — 68.

Parbarila! — 888,

xxxviii

THE INDIAN PENAL CODE

Darbeshali— 41 2.

Darbra Choudhury — 173.

Dargahi, 52 C. 499—345.

Darhoon — 527.

Daroga Gope— 313, 376, 379.

Daroga Lohar — 151 .

Darya Singh — 751.

Dasai — 1029.

Dasarathi Mahapatra v. Raghu Sahu— 24J.
Dasarathi Roy — 255, 637.

Dasonidhi, 9 L. 424 — 411.

Dasoudha Singh — 353.

Dasser Bhooyan — 525.

Dastarali — 40.

Dasu — 532.

Data Ram— 145.

Dattaraya Ventatesh Belvi — 4-0.

Dattu Nana Pa war— 537.

Daud Khan— 764.

Daulat Rai — 786, 789.

Daulat Shaw — 702.

Davies, 6 C. ft P. 177 — 799.

(1881) 14 Cox. C. C. 563 — 118, 122.

” (1857) 26 L. J. Ex. 393-270.

” v. Duncan — 1013.

„ v. Shepstone — 1010.

Day — 131.

Dayabhai Chakasha— 954.

Daya Karsan — 842.

Dayal Baurie — 1053.

Dayalji Endarji— 309, 330.

Daya Ram — 374.

Dayaswami Pillai — 872.

Dayal Singh — 558.

De Crespign v. Wellesley— 999.

De Cruz and John Raymond Biber -1044.
De Marney — 162. 490.

De Souza — 574.

De Sylva — 14.

Dean of St. Asaph— 261.

Debee Singh— 822.

Debendra Chandra Chaudhury Mohuu
Mohan Choudhury— 625.

Debendranath Upadhya v. Bhagirath
Mahto — 368, 945.

Debendra Narain Chakra verty— 548.
Debendra Prosad, 36 C. 573-33, 821,833, 836.
Debi 29 A. 377 — 405.

16 A. L. J. 105—317.

Das — 691.

Din — 26.

Gir Tapdhari — 298.

Lai— 918.

Prasad Bhagat v. Nagar Mull — 766, 769.
Sahai v. Ganeshi Lai — 6.

„ Singh— 412.

Deegumbar Aheer — 408, 409.
Denonath Bu jiar — 3 46 .
Deodhar Singh — 274, 399.
Dcodhari Mahto — 823.

Deoji— 97.

Deoji Goundji — 530.
Deonandan — 988.
Deonandan Pershad,

33 C. 649— 178, 724.

Deoraj — 761.

Deosaran Tiwari— 299.

Deota Misir — 572. „

Deputy Legal Remembrancer v. Hatim
Molla— 793.

Deputy Legal Remembrancer v . Ijjatalla
Kazi— 815, 816.

Deputy Legal Remembrancer v. Mir
Sarwar Jan-323, 413. t
Deputy Legal Remembrancer v. Ka-
mi na — 4.

Deputy Legal Remembrancer, Bihar and
Orissa v. Matukdhari Singh — 226,230,
858.

Deputy Legal Remembrancer v. Sarna
Katuni — 973.

Deputy Superintendent and Remem-
brancer of Legal Affairs v. Chulhan
Ahir— 233, 844.

Derry v . Peak — 810.

Desraj, 8 L. 662 — 761.

Dess v. Director of Public Prosecution-496.
Devarasathi Gangaiya — 873.

Devi Das — 139.

Devidayal — 1034.

Devi Saran Sharma — 263, 499.

Devji Govindaji — 135, 530.

Dcvji Valad Bhavan — 928.

Dewa — 412.

Dewan Singh — 561.

Dewan Singh — v. Mahadip Singh — 1026.
Dewasi Khamani Asari — 784.

Dhania Daji — 112, 607.

Dhania v, F. L. Clifford — 623.

Dhani Bux — 120.

Dhani Ram — 542, 595.

Dhantue Lodhi — 873.

Dhanum Kazee— 31, 33, 552, 901, 902,
937.

Dharajit— 58, 829.

Dharamchand Lai — 26.

Dharamdas v. Naseruddin— 850.
Dharamdas Singh — 76.

Dharam Rai — 40.

Dharanidhar Ghosh — 655.

Dharmalinga Mudali — 845.

Dhauman Tely — 156.

Dhian Singh — 254.

Dhirendra Mohan Gossain — 700.

Dholla v. Sub-Inspector of Police, Welling-
ton— 378.

Dhondu Bapusajer — 98, 1019, 1032.
Dhondya Dudhya — 114.

Dhonia v. F. L. Clifford — 623. ,

Dhori Kullan— 324.

Dhu Ram— 154, 538.

Dhum Singh— *1007, 1020, 1033.

Dhundi — 1048.

Dhunpat Ojha — 822, 836.

Dhununjoy Poli — 148.

Dhuronidhur Ghose — 652, 655.

Diat Singh — 256. t

Dibakar Bene .v. Saktidhar Kabiraj — 233,
234, 362, 549, 695.

Dickins v. Gill — 444.

Dickins v. Randerson — 469.

Dickinson — 698.

Digambar— 922.

Dilgazi — 119.

Diljur Missir — 2.

Din Mahamad — 330.

Dina, Ch. 257—783.

Pinabandhu, 9 W. R. 19—224, 231,

M W. R. 1—846, -

TABLE OF CASES

mix

Dinabandhu Moitra — 560.

,, Nundy v. Hurrymati Dascc

22

,, Oryia — 531, 534.

,, * Rajasaru v. Viswavarayi

Lachana Dova — 858.

Dinanath — 27.

,, v. Rajkumar — 228.

,, Barua — 168.

Dinshaw Edalji Karkaria v. Jehangir
Cowasji Mistri — 1027.

Dinu Shtikh — 601.

Director of Public Prosecutions v. Beard
— 118, 560.

District Magistrate of Bellary v. Obbaya
—800.

Ditta 10 L. 213 — 362 549.

Diwan Chand Jolly — 496.

Doatali — 239.

Dixon — 512, 873, 880, 891.

Dobey Sahai v. Someshi Lai — 19.

Dodd Basaya — 81.

Dodhu Kalu Mahar — 271, 598.

Doe v. Bain bridge — 119.

Doherty — 569.

Dolan — 708.

Doma Sahu — 267.

Doman Mahto — 323.

Dongaru — 179.

Donnolly’s Case — 719, 730.

Doorasami Pillai — 612.

Doorgadas- 78.

Dooraswar Sarma — 162 165 175.
Doorjodhan Shumanto alias Deejobar —

Doraiswami Aiyar — 715, 716, 1043, 1044.
Doraiswamy Muthirayan v. Muthachi —
226.

Dorasami — 91.

Dorilal— 816.

Dosa, 109 I. C. 224—671.

Doss v. Secy, of State — 104.

Dovey v. John Cory — 771.

Dowlatt Bee v. Shaikh Ally — 671, 679,
680.

Dowlat Moonshee — 347.

Dowlat Ram — 954, 950, 965.

Downes — 537, 920.

Doyal Bowri — 864, 1053.

Dube Sahai v. Someshilal — 19.
Doraswami Pillai — 872.

Drage — 799. «

Drewett — 778.

Dubarso Polio, 8 \V, R. 40 — 801.
Duckworth — 580.

Dudley v Stephens — 112, 135.
Dugdale — 1047.

Dukair Chandra Karmakar — 74.

Dukhi Molla — 6.

Dukhit Sha— 149.

Dulelooddeen Sheikh — 723.

Dulichand Dalai — 771.

Dulla Singh — 34.

Dulli— 744.

Duma Baidya— 5.6.

Dunbar v. Holland Bombay Trading
Co — 952, 956.

Dungar— 363.

Dpngar Singh— 77, 240,

Dungri — 91.

Dunn — 915, 912,

Dunypat v. Darbesh Ali — 412.

Durga — 735.

Durga Charan Bepari — 562.

Durga Charan Mali v. Nabin Chandra
Sil— 319,

Durga Das — 665, 669, 670.

.. ,, v. Umesh Chandra — 300.

,, ,, Nandi v. Dewraj A gar wa la

— 323.

Durgaiya— 884, 880.

Durga Kumar Dc v. Saniedar Raja
Chaudhury — 234.

Durga Prasad, 17 Cr. L. J. 540 — 928.
911.

Durga Prasad 30 I. C. 651—354.

.. 20 A. L. J. 981—730.

,, 7 A. L. J. 907—405.

„ 16 Cr. L. J. 667— 334.

Durga Tewari — 769.

Durgaiya, 1. Weir 524 — 912.

Durlav Nama Sudra — 363.

Durnoval — 77.

Dwarikanath Goswami — 180, 182.
Durwan Geer — 149, 537.

Dusthoo Ghulum — 801.

Dutta Manga — 317.

Dwaiswami Thevan — 564.

Dwarka Ahcer — 744.

,, Bania — 752.

,, Das Haridas v. Ambalal Gan-
patram — 786.

,, Doss v. Narasinhalu Naidu —
759.

Nath Dutt— 911.

,, Nath Ghosc — 914.

Dwarka Prasad v. Makund Sarup — 932.
,, Punia — 582.

,, Singh v. Ramkishan Singh-
895.

Dwaraknath Haridas— 188, 765, 776,
786.

Dwijendra Chandra — 92.

Dyal Singh — 566.

Dyson Pest — 969.

E.

E. J. Judah— 702, 712, 713.

Eadara Virana t\ Jiven — 912.
Eagleton-^1048, 1050.

Earl of Summerset — 161.

Eastward ». Holmes — 1003.

Ebrahim Sirkar — 301, 333.

Ebrahimji Mulla Jewanji— 810, 833.
Ebrahim Manooje Parekh — 16.
Ebrahimji Mulla Jewanji — 810, 858.
Ebrahim Sarkar — 324,333.

Echan Meeah — 310.

Ediga Narasapa-*465, 467.

Edmeads — 511.

Edmondson v. Birch and Co. — 1012.
Edmund Balls — 769.

Edward Cheeseman — 1048, 1050,
1054.

Edward v. Dennis — 950.

Edward Hutchinson Pollard — 417.
Edward Murphy — 540.

xl THE SPIAN PENAL CODE

Edward's Trade-Mark — 955.

Elahee Baksh — 274.

Eiahi Baksha Kazi — 345.

EIder9haw — 683.

Elem Molla— 513, 526.

Elizabethowen — 1 1 3.

Ella Boyan — 609.

Elahee Baksh — 274.

Elliot— 617.

Elmstono — 8, 50.

Elseworth — 898.

Elsley v . Kirby — 22.

Els worthy — 801.

Elwood v. Bullock — 177.

Emaji — 982.

Embelton v. Brown — 8.

Emdad Ally— 879.

Emerton v. Mathews — 813.

Emma Bate — 598.

Enai Bibi— 974. 978.

Enayet Hossain — 691.

Eno. v. Donn — 951.

Esdaile — 813.

Eshak Mea — 265.

Eshan Chandra Dev — 91
Eshan M&h — 165.

Essan Chander Putt v. Prannath
Ch owd hur y — 90 0 .

Esop — 7, 94.

Esufalli Abdul Hussain — 1028.
Etheridge — 924, 913.

Etim Ali Majumdar — 161, 164.

Evening News — 1015.

Ewaz Ali — 655.

Exparte Windsor — 899.

Ezekiel — 27.

F

F. A. Brown v. Ananda Lai Mullick — 378,
379.

F. Boyce v. Kirk — 978.

Faiz Hussain — 165.

Faiza Pramanik — 741.

Falika— 847.

Fakir— 11.

Fakira Khan, 4 C. L. j. 90—626.
Fakirappa — 5, 17, 631.

Fakir Chand v. Fakir — 881.

Fakir Chand De— 883, 887.

Faquir, 24, A. L. J. 893—1000.
Falkingham — 584.

Faraddin 120, l. C. 529—557.
Faranborough — 700.

Farid— 532.

Farman Khan— 141, 143, 148.

Farrukh Hussain — 818.

Farzandale — 828.

Fatesh Singh, 41 C. 43—148, 217, 244, 248.
Fateh Chand Agarwalla — 9, 20, 34, 35,
429,433,436, 437.

Fatiar Bap — 241.

Fatehyab Khan v. Mamont Yusuf — 49C.
Fateh Ali— 51.

Fateh Din— 842.

Fateh Mahammad — 1071.

Fateh Mahammad, 29 P. L, R. 90—730.
Fateh Singh, 41 C. 43—148, 244, 247,
248. t

Fateh Singh, 18 A. 432—387.

Fatima v. Captain McCormick — 644,
649.

Fatta— 738.

Fatter— 89.

Fatti— 858.

Faulkner, 13 Cox. C. C. 550 — 866.
Faulkner, 8 Q. B. D. 167—377.
Fauzdar Rai — 228.

Faujdar, 24 A. L. J. — 663.

Fazer Promanick — 851.

Fazal Ahmad — 343, 357.

Fazoo Khan v, Jatoo Khan — 41.

Fazla, Lah. 581, 570.

Faujdar 24 A. t. J. 663.

Fazruk Hsusain — 797.

Fazal Dad — 659.

Fazal Hussain — 725.

Fazoo Khan v. Jatoo Khan — 41.

Fecitt v. Welsh — 467.

Fedu Sheikh — 663.

Feda Hossein — 901.,

Fegu Tanti — 975. €

Felani Hariani — 589.

Fentiman — 100.

Fenton — 105.

Ferasat— 77, 78, 81, 239, 240.

Fergson — 127.

Ferguson — 20.

Fernandez — 1012.

Feroz — 542.

Filburn v. People's Palace and Aquarim —
484.

Finney — 415.

Fischer — 93.

Fisher— 820

Fitch and Howley — 928.

Fitzgerald and Lee — 928.

Fitzmaurice — 947.

Flattery — 131.

Fleming v. Hislop — 460.

Fletcher— 131, 424.

Foizullah — 25 C. W. N. 24—40.

Foojdar Roy — 347.

Forbes v. Girish Chandra — 843, 847, 948.
Ford v . Foster — 961.

Forter, 2 Halk P. C. 29—178.

Forster — 438.

Foster — 814. ,

Foster v. Green — 697.

Foudi Koer — 139.

Foulkes — 782?

Fouzdar — 48 228.

Fowler v . Padget — 105.

Fox (Patric) 16 Cox. C.C. 166-291,615, 596.
Framji Bomanji— 637.

Framji D. Tarapore walla — 491.

Francis — 820, 932.

Francis Cassidy — 580.

Franconia case or Kcyn — 16.

Frank Allen — 114, 53.

Franklin — 207.

Fraser, 8 Cox. 446 — 650.

Freeman— 716.

Fretwell— 587.

Frost— 195.

Fry v. Collins— 101.

Fulchand Tepriwalla— 664, 665.

Fukeera Chamar— 149. « .

xli

Futeh — 902.
Futta — 87.

G.

G. C. Sircar — 663.

G. S. Appa v. M. P. Marier — 1013.

G. S. Ramasami Aiyar — 913.

Gadicherla Harisarvothama Raod — 206.
Gahar Mahammad Sarkar v. Pitambar Das-
322.

Gahbar Pande — 612, 629.

Gahra — 984.

Gainu Panday — 861.

Gajanand — 974.

Gajcndra Sherai — 248.

JG ajo Chaudhury v. Devi Chaudhury — 699.
Gajadhar — 322, 360.

Gala Mana — 90.

Galla Hanumappa— 247.

Gaman, P. R. No. 16 of 1913—144, 145.
Gaman, A. 1. R. (1930) Lah. 348 — 148.
Gamihilla Sarkar v. Abdul Sheikh — 849,
861.

Ganapat Krishnaji— 723. f

Ganapathe — 301.

Ganapathi Sarma — 266.

Ganauri Lai Das — 228.

Gandhi, M. K.— 18.

Gandu — 666.

Ganduba Nayaka — 531.

Ganesh — 656.

Ganesh Bala want Modak — 205, 1054.
Ganesh Bhikaji — 909.

Ganesh Damoder Sarvarkar — 197.

Ganesh Dooley — 528, 644, 568.

Ganesh Dutt v. Mugneeram — 1025.
Ganeshilal — 797.

Ganeshilal, 27 A. 258—319.

Ganesh Khandaro — 311.

Ganesh Luskar — 318, 551.

Ganesh Narayan Sathe — 308, 869, 881.
Ganesh Sahu — 815.

Ganesh Sakharam — 71.

Ganesh Shanker Vidyarthi — 18.

Ganesh Varman — 183.

Ganesh Vasudeo Marlangker — 326, 328, 329.
Ganesh Singh v. Raja Ram — 40.

Ganga — 349.

Ganga Chdnder v. Gour Chandra — 1036.
Ganga Charan Singh — 408.

Ganga Dei — 658. .

Ganga Prasad, 1 Pat. 423 — 27.

Ganga Prasad, 27 A, 260—787.

Ganga Prasad, 29 A. 686—1019, 1026, 1027.
Gangaram Malji— 933.

Ganga Sahai — 1027.

Gangaram San tram — 702.

Gangaram Tukaram — 363.

Ganga Sagar — 55, 61, 306.

Ganga Patra — 1022.

Ganga Lai— 368.

Ganoji Pandjee — 350.

Ganouri Lai Das— 132, 228, 247.

Ganpat— 692.

Ganpati Seluke— 473.

Ganpat Deraji Patil — 346,

Ganpat Lai, 6 P. 217—388,

.Ganpat Krishnaji— 702,

Ganpatrao ti. Rajchandra — 172.

Ganpat Sitaram Mukdam — 951, 966, 960
965.

Ganpat Tapidas — 788.

Ganubin Krishna Gurav — 492.

Ganu Sadu — 238.

Gapalavaya — 138.

Garapati Kotaya — 641.

Gardner — 817.

Garib — 525.

Garib Seikh — 433.

Garrets Alexander — 921.

Garvey — 292.

Gasanu Sadu — 237.

Gathercole — 1003.

Gati Mondal— 312, 314.

Gaunt v. Fynney — 457.

Gauntlet — 26.

Gauri Das — 270.

Gauri Narayan Barrua v. Tibikram Chettir
—647.

Gauri Sankar — 771.

Gauri Shankar — 399, 400.

Gavauppa — 322.

Gaya Barhi — 315.

Gaya Bhar— 873, 883, 891.

Gaya Prasad — 616.

Gazi Khan Aba Dore — 102.

Gandanlal v. Abdul Aziz — 813.

Genu Manjhi — 616.

Genu Sardara — 562.

Gendo Uraon — 232, 242.

Genu Maujhi — 244.

Genya — 852.

Gedrge Banham & Co. v. F. Rcddaway &
Co.— 951.

George Brooks — 705.

George Hugh — 932.

George Kipps — 661, 657.

George Loveday — 615.

George Mason — 731.

George Russel — 879.

George Stratton — 102.

Ganasham Ramchandra Mantri — 363.
Ghanaya — 307.

Ghani Khan — 230.

Ghansham Das, 108, I. C. 663 — 767.
Ghanshyam Singh 6 P. 627 — 564, 565, 568.
Ghansham Singh 32 A. 74 — 918.
Ghantappa — 531.

Ghasi, 32 A. 214—841.

Ghasita, 22 Cr. L. J. 145 — 68.

Ghasita, 20 Cr. L. J. 491—892.
Ghaslawany — 379.

Ghatu Pramanik, P. R. No. 13 of 1919 —
117, 630, 921.

Ghazi— 531.

Ghinna Uraon — 117.

Giridhar Sarkar — 677.

G, N. Pascal— 776.

Gholam Asphia — 738.

Gholam Hossain, (1866) P. R. No. 120
Gholam Mahomed — 223, 684, 711.
Ghota Pramanick — 117.

Ghulam— 875, 879, 893.

Ghulam Hossain, (1917) P. R. No. 5—
489.

Ghulam Hussain — 47, 506.

Ghulam Jelani — 887,

xin ^HEiKftAN mmww

Ghulam Mohammed — 318, 352.

Ghulam Mustafa — 741.

Ghulam Rasul— 142, 152, 551
Ghullie, 7 A. 44—350.

Ghulet— 338, 347, 351.

Ghul Shah— 142.

Ghyasuddin Ahmed — 223.

Gian Singli — 639.

Gibbon — 339.

Gilbert Holden — 904.

Gipps v . Gipps — 982, 989.

Girdhar v. Dharmadas — 763, 769.
Girdhara Singh — 226,236, 258.
Girdharilal, 11 Cr. L. J. 428— 820.
Giribala Dassi v. Prankristo — 1028.
Giridharec P. R. no. 16 of 1876 — 815.
Giridhari, 15 A. L. J. 883 — 406.
Giridhari v. Ucliit Jha — 314.
Giridharilal 8A. 653—400, 899, 903,
904, 905, 908, 943, 949.
„ (1911) P. W. R. No. 146—

274.

Girish Chandra — 314.

Girish Chandra Mitra v. Jatadhari
Sadhukhan — 1038.

Girish Chandra Namodas — 552.

Girish Chandra Roy v. Akhay Kumar
Sardar — 851.

Girish Mytc— 368, 304.

Giriyappa — 97.

Girya Laxmappa — 743.

Gita Prasad Singh — 229.

Giyan Chand — 12.

Gnanabhai v. Srinivas Piilai — 370.
Gobadur Bhooyan — 537.

Gobardhan u. Jadamani — 977.
Gobardhaii Bhuiyan — 148, 153.
Gobardhan Pari — 155.

Gobardhan Singh v. Ram Badan
Singh— 381.

Gobindaram Jashanmal — 787.

Govinda — 795, 892.

Gobinda Prosad Panday v. Garth —
1001.

Gobind Singh, 5 P. 573 — 911,

Gobindu — 987.

Godha— 392.

Godi— Rat. Unrep. Cr. C. 876.
Godlavedu— 938, 916.

Gofur Karim bux — 829.

Gogunchander Ghose — 918.

Gokool Bowree — 148, 149, 530.

Gokul — 45 A. 142—418, 655, 657.
Gokul Chand — 640.

Gokul Khalik— 828.

Gokul Mundar v. Padmanund — 8, 28.
Golab Khan— 776.

Golapx Ahmad Kazi — 311.

Golam Hussain 22 C. W. N. 1005 —
798, 796.

Golam Hussain Choudhury — 50.

Golla China Vcnkadu — 120.

Golla Hamappa— 247.

Goluck Chand — 175.

Goluck Chandra Pal v. Kalicharan
De— 331.

Goma v. Gokul Das— 102,

Gonesba— 566.

Gonourilal Das — 139,

Gonpat Rao Ramchandra— 60.

Goode— 583,

Goodman v, Harvey — 697.

Goolzar Khan — •

Gooroodas Rujbansee — 656.

Gopal (1890) Rat. Unr. Cr. C. 502—349.

,, 23 A. W. N. 115—423.

Gopal (1896) Rat. Unr. Cr. C. 865—
1052.

Gopal v. Bank of Madras— 371.
Gopal Chandcr Sirdar — 721.

Gopal Chander v. Fooimani — 40.

Gopal Dhanuk — 376.

Gopalia — 96.

Gopal Kahar, 22 Cr. L. J. 333—380, 381.

,, „ 61 I. C. 171—315.

Gopal Krishna — 912.

Gopalia Kotaya — 641.

Gopal Lai Sanyal— 206, 209.

Gopal Naidu— 5, 140, 620. 624.

Gopal Raghu Nath — 193, 968.

Gopal Rai — 320.

Gopal Swami — 841.

Gopal Singh, 36 A. 6—640.

Gopal Singh, 20 C. 316 — 304.

Gopichand — 418,

Gopinath Panda — 351.

Gopinath Porayah — 298.

Gorachand Gope — 40, 473, 523, 546.
Gordon — 195, 197.

Goria, 7 C. P. L. R. 5—462, 463. 464.
Goribulla Akanda v. Sader Akanda—
239.

Gorie Shankar — 142.

Gossain — 151, 524, 566.

Goude, 10 Cox. C. C. 647—524.

Gour Benode Dutt — 840.

Gour Chand Chung — 149, 155.

Gour Chandra Chakraverty v. Kishen
Mohan Singh — 376.

Gour Chandra Das 24 W. R. 5 — 254,
255.

Gour Chandra Das — 32 C. W, N. 1004 —
188, 192.

Gour Chandra Polee — 532.

Gouri Das Namasudra— 603.

Gouri Narayan v. Tilbikram Chetri—
767, 774. #

Gouri Shankar — 97, 48.

Govardhan Ridkaran — 974.

Cover — 430. «

Government Advocate Bihar and Orissa
v. Ganga Prased — 27.

Government Advocate Bihar and Orissa
v. Gopa Bandhu Das — 1010, 1929.
Government of Assam v. Kaulia Chatia —
643. *

Government of Assam v . Sahebulla— 412
642.

Government of Bengal v. Gannoo Mehta
345.

Government of Bengal v. Sheo Gholam —
137.

Government of Bengal v. Umesh Chandra
Mittor— 856.

Government of Bombay Ganga — 977,

Govind 1 B, 342—523,

TABLE OF CASES

xliii

Govinda Cliandra Roy v. Abdul Rashid
— 953.

Govinda Chandra Seal — 337.

Govinda Mai — 33.

Govinda Pillai — 1027.

Govinda Pillai v. Thayamul— 6.

Govinda Prasad — 874, 871, 873.

Govinda Punja — 846.

Govinda Rajalu — 270.

Govinda Ranappa — 927.

Govinda Swami Naidu — 822, 827.

Govind Pandurang — 342.

Gowkaram Lai v. Soorju Saw — 769.
Grant — 1020.

Gray— 418, 421.

Gray v. Pullen — 481.

Great Western Raiiway Co. v. Bailie — 460.
Green — 475.

Greenacre — 1 60.

v. Delanney — 993.

Grey — 461.

Griffiths — 900.

Griffiths v. Place — 462.

Grill General Iron Screw Collier Co. — 48.
Gr oombr id ge — 683 .

Guhi Jana — 88.

Gulab— 509.

Gulab Chand — 918.

Gulab Chand Dosaji — 815.

Gulab Singh— 189, 355, 858.

Gtilabmiya Dagumiya — 782.

Gulam Ahmed Kazi — 311.

Gulam Hossein Ratonsey Nanji — 227.
Gulam Hyder Punjabi — 65, 127.

Gulam Muhammad, 9 M. 439 — 1024
Gulam Mohammad, 3 L. 40—362.

Gullie Mullick— 349, 360.

Gulli Sahu — 12.

Gul Muhammad v. Pir Akbarali— 1038.
Gul Muhammad v. Hazi Fajley Karim — 54.
Gulzar Khan — 1042.

Gulzari Lai. 2 A. W. N. 229—137.

Gulzari Lai, 24 A. 254—777, 780.

Guma, 48 A. 687—791. 795.

Gunamoney Sapui — 314, 378.

Gunananda Dhone v. Lala Santi Prakash
Nanley— 774, 770, 780, 788, 797.
Gunder Singh — 649, 667.

Gunestya — 467.

Gun jar Mahomed v. Shura j Ali — 911.
Gunpathi Venkataramiah — 301.
Gunwant— 919. •

Gunya — 480.

Gupta — 340.

Gur Narain— 474.

Gurdit Singh — P. R. No, 17 of 1889, — 86,
Gurdit Singh — 051.
fc Gurditta— 696.

Gurjoon Aheer— 349.

Gurney v. Landlands — 920.

Gurreeboollah — 6 12.

Guru Charan Chang — 142, 165.

Gururam Kahar— 626.

Gurulingappa Shidramappa — 638.

Guru Swami AUumbivian — 298.

Gutali— 620, 607.

Guturu Mongalu — 630.

Guzzala Hanuman — 800, 802, 803, 804.

Gya Bhar— 872, 881,

Gya Presad — 200.

Gyanee Ram — 910.

Gyan Singh — 684.

H.

H. B. Spiers v. Zahiruddin — 473, 474.

H. C. Bayne — 474.

H K Bhedwar v. Rao Shalnt C. S. Rao.
—819

Habib, 6 L. 628-18, 410, 418, 419,
Habibulla, 18 I. C. 653—049.

Habibulla, 10 C. 937—350.

Habib Khan v. Mazharul Haque — 1040.
Habibul Razzak — 62, 720.

Haboo v. Kariman — 707.

Hachun Khan — 562.

Hadrick v. Heslop — 371.

Hague — 821.

Haidar Ali, 17 C. W. N. 364—920.

Haider — 91.

Haider Ali v. Abru Mia — 1026.

Haider Ali Pradhania — 900.

Haines — 474.

Hajee Essa Sulleman v. Dayabhai — 873.
Haji Golam Muhammad — 621.

Haji Rahim Bux Ashan Karim v. Central
Bank of India — 55.

Haji Sher Mamud — 749.

Hakim — 498.

Hakiman — 795.

Haku, 10 L. 553—531, 508.

Halton Coal Co. v. North Eastern Asso*
ciation — 1012.

Hall, 3 C. & P. 409—96 ; 703.

Hall, 3 Cox. 246—909.

Hall v . Barrows — 962.

Hall v . Cox— 496.

Hall Nagji — 407.

Hamid v . Sudhir Mohan Ghosh — 102.
Hamid Ali Bepari — 702.

Hamid Ali v. Imtiazan — 653, 702.
Hamilton, 8 C. & P. 49—743.

Hamilton, 1 C. & K. 212—722.

Hamilton Fraser — 105.

Hamma Timmia Bhandiwadder — 79, 792.
Hammack v . W hite — 472, 483.

Hancock — 708.

Handley — 050. +

Hanmappa Rudrappa — 363.

Hansa Pathak v. Bansilal Das — 177, 256.
Hanuman, 21 Cr. L. J. 583 — 833.
Hanuman, 35 A. 506—509.

Hanuman Sarma — 544, 1052.

Hanuman Singh v . Bhagwan — 861.

Haq Dad— 145, 003.

Haradhan, 19 C. 380—28, 815. 899, 901,
907 908 911.

Haradhan Maiti, U Cal. 513—18, 901,

923.

Harakchand Marwari — 452.

Harakumar v. Savi— 838.

Haranath Roy — 266,

Hara Chandra Mukerjee — 342.

Harbans Pandey — 254.

Harakumari v. Sashi — 858.

Hara Mohan Das — 355, 931.

Har Chand— 147.

Bar Chand, 31 Cr. L. J . 129-248,

THE INDIAN PENAL CODE

xliv

Har Dail— 75.

Har Narain, 22 A. L. J. 1100—308.

Har Piari, 24 A. L. J. 598—557.

Har Swarup v. Mohammad Shiraji — 1035.
Hardaker v. Idle District Council — 474.
Hardawar Pal — 312.

Hardeo Singh — 864.

Hardit Singh — 612.

Hardu Singh — 81.

Harendra v. Kamjan —700.

Harendralal Roy — 266. 267.

Harendra Berman — 83. 240, 253.
Harendranath Das v. Jvotish Ch. Dntt —
820, 823.

Harendra Prasad Ghosh — 264.
Harendranath Sen — 920.

Hargayan — 392.

Hargobind v. Greaves Cotton & Co. — 966.
Hari Bapu — 470.

Haribhai Dada — 648.

Hari Bhuimali — 700, 703.

Hari Bijal— 235, 743, 746.

Hari Charan Singh — 338, 350.

Hari Dagdu — 775.

Hari Giri— 530, 535.

Hari Lakshman — 308.

Hari Mahcshwar Jashi — 210.

Harihar Singh — 42.

Hari N araya n — 1 94 .

Hari Pada Boilva — 1030.

Hari Modak v. Dinnonath — 705.
Harimoniram Sonar — 439.

Hari Mondle v. Jafar — 856.

Harinder Singh — 238.

Hari Piari, 49A. 57-364.

Haripada Baidya — 1030.

Hari Ram — 80 i.

Harish Chandra Chaudhury v. Girish
Chandra Sarkar ---319, 323.

Harish Chandra Das v. Bolai Adhikary—
700.

Hari Singh, 3 C. L. R. 49 — 2 55, 270.
Hari Singh, 28 All. 100—489, 490.

Hari Singh v. Jadunandan — 267.

Hari Singh v. Kanchan Mehta — 857.
Harjivan Valji- 32.

Harka — 116.

Harley, 2 M. <* Rob.— 920.

Harley, ^(1807) R. Sc R. 139—716.
Harmanin Sardar — 244.

Harnam — 89.

Harnama — 526.

Harnam Singh, 16 A. L. J. 600— -772.
Harnam Singh, 5 Lah. 56—699.

Harnarain, V. R. No. 20 of 1870 -86.
Hamarain, A. K. R. (1924) All. 239—434.
Harnarain, 41 All. 509 — 859.

Haronath Main v. Sonai Mia Chaudhury —
51.

Harrie t T urner— 593.

Harris, 40 All. i 19-28, 753.

Harris, L. R. 1 C. C. R. 282—270, 492.
Harris, 4 All. 348 — 794.

Harris, 6 Cox. 363—768.

Harris, 10 Cox. 352 — 4Q4.

Harris v. London County Council — 452.
Harrison — 433,

Harrison Southwork and Vauhall Water
Co.— 482.

Harshanath Chatterjee — 190, 192.
Harsukh Rai — 68.

Hart v. Colley — 955.

Harvey — 438.

H. K. Bhadiswar— 819. •

Hasan Mirza- — 381, 385.

Hasanuddin Mohammad — 548.

Hasrat Mohani — 194.

Has tic — 782.

Hatim Mandal — 792, 800.

Hatim Moonshee — 941.

Haughton — 856.

Hau Nagyi — 458.

Hay at — 55, 97.

Haycroft v. Creasy — 32, 902, 903.
Hayden and Chuck — 716, 781.

Hayes— 2, 13.

Haynes — 117.

Hayward, 21 Cox. 692 — 550.

Hayward, 8 C. and P. 157—533.

Hazra Singh —564, 596.

Heaton — 977.

ITccla Foundry Co. v. Walker Hunter
and Co. — 956, 959.

Heeraman, 8 W. R. 30—310.

Hcgarty v. Shine — 464.

Hemchandra Mukerjec — 388, 390, 391.
Hemendra Kumar Ghose — 784, 786.
Hemendra Prosad Ghosh — 264.
Hemoruddi Mundal — 938.

Hcnkeens — 655.

Henrick v. Schmalz — 105.

Henry Allen — 686.

Henry Dunn — 799.

Henry Hill & Co. v. Sheoraj Rai — 706.
Henry Pembliton — 545.

Hensler— 811, 1046.

Henwood v. Harrison — 1012.

Hermann — 425.

Herring v. Metropolitan Board of Works
—477.

Hewitt— 592.

Hibbins v . Lee — 1016.

Hicklin — 489.

Hicks v. Foulkner— 385.

Midayata — 7 52.

Higginson— 115.

Higley — 593.

Hikamatulla Khan — 375.

Hill, 8 C. and P. 274—904, 937. *

Hill, 22 Cox. 625—602.

Himayct Ali — 32$.

Him Chand Singh — 300.

Hindlc v. Birtwistle — 482.

Ilingan Khan— 317.

Hira, 45 A. 250—141, 147. 227, 231.

Hira, 9 A. L. J. 370—8

Hira, 40 A 119 — 783. •

Hiralal, 13 O. C. 243—749, 750.

Hiralal, 22 Cr. L. j. 381—330, 562.

Hiralal, (1883) A. W. N. 222—296.

Hiralal Ghose, 52 C. 159—345.

Hiralal Ghcse v. Makhan Lai Daw —
830.

Hiralal Mahton v. Lila Mahton — 350.
Hira Nand Ojha — 338.

Hira Pal— 89.

Hirst v . Denham— 953.

Hiru Satua Desla — 304.

TABLE OF CASES

xlv

Hisamuddin — 358.

Hit Narayan Singh — 350.

Hizra — 737.

Hoatson — 904.

Hock Clfbng & Co. v. Tliaka Do — 797, 770.
Holbrook— 200.

Holland, 2 M. and Rob. 351—516.

Holland Bombay Trading Co. v. Buktear
—956, 964.

Holmes — 270.

Holt— 998.

Hoost — 969.

Hopkins — 555.

Horatio Cracknel 1 — 723.

Horilal— 788, 833.

Hoi^fall v. Thomas — 813.

Hossein Beg — 479.

H ossein Manjee — 296.

Hotchin v. Hindmorsh — 468.

Howana — 622.

Howard — 999.

Howard v. Mull— 1010, 1011.

Howell— 511.

Howka Ramlakshmi — 655.

Hridoy Mondal — 78, 81.

HtinGyaw— 188, 191.

Hudson — 8 1 1 .

Huggins — 484.

Hughes, 14 All. 25 — 664.

Hughes, 9 Cr. and P. 752 — 686.

Hukan Singh — 594.

Hukum Chand— 845, 847.

Hukum Singh — 24 A. L. J. 536 — 301.
Hulas Chand Baid — 179, 830.

Hulodhar Poree — 470.

Hunoorman Lall — 384.

Hunt, 5 B & A 566—198.

Hunt v. Williams — 494.

Hurdat Sarma — 364, 400.

Hurdit Singh — 81.

Hureemohan Mytlie — 513, 618, 683.
Hurikishen Doss — 418.

Hurish Chandra Neogi v. Nishi Kanla
Banerjee — 376.

Hurjeo Mull v. Iman Ali Sarkar— 909.
Hurmnsji Nowroji — 473, 474.

Hurrish Chandra Bose — 927.

Hurse Mohapatra v. Dinabandhu — 2.
Hurynath Chowdhury — 301.

Hus a nah— 18.

Hushrut Sheikh — 7 1 7 .

Husainuddy — 153. •

Hussain — 319, 322.

Hussain Bakash, 25 A. 261 — 396.

Hussain Baksh, 29 A. 569—260, 262.
Hussain Beari — 383.

Hussain Buksh Mian— 697, 956.

Hussain Khan — 689.

Huzrat Gul Khan — 512, 560.

Hyams— 879.

Hyde v. Hyde Woodmansc — 976.

Hyder, 20 S. L. R. 3—793.

Hyder Ally— 793, 1026.

1 .

I. G. Singleton— 784, 785.

Ibrahim Mamoojee Parekh— 18.

Itpahim, 29 Cr. L. J,. 849—941.

Ibrahim, 42 C. L. J. 496 — 740.

Ibrahim, (1894) P. U. No. 7—670.

Idu Beg. 3 A. 776—472, 523, 570, 571,
572, 603, 615.

Idu Jolaha— 38, 934.

Ifatulla Akonda — 563, 564.

Ikramuddin — 736.
llahia— 745.
llahi Buksh— 964.

Imam— 700, 703.

Iman Ali— 498, 659.

Imamdad Khan — 782.
lmamdi Bhooyah — 162, 165.

Imam Din v. Niamatullah — 345.

Imami — 4.

Iman Ali — 659.

Imatzam — 973.

Ina Sheikh— 800, 802.

Incha Ram — 317.

Indarman — 489.

Indar Singh, 24 Cr. L. J. 587—795.

„ ,, A.I.R. (1923) L. 326—250.

Inder Sain — 253.
inder Singli, 48 All. 288 — 759.

Inder Singh, 10 L. 477—523.

Jndra Chand Bhagbaji — 347.

Indra Chandra Narang — 190.

Indranath Banerjee — 459.

Indranath Banerjee u. E. G. Rooke — 273.
Indra Talavar v. Narasingha — 858.
Inhabitants of Brampton — 976.
Inhabitants of Mahalingpore v. Anderson
—104.

Ion— 433.

Ippiii Magatha — 326.

Irjan, 46 C. L. J. 241—737.

Isap Mahomed — 985.

Ishan Chandra — 274, 802.

Tslian Much! — 800, 802, 804.

Ishar Das, 6 Lah. 50—935, 936, 937.

Is liar Das. (1912) P. L. K. No. 258—
751, 752.

Ishree Persand— 264, 711, 713.

Ishri— 873, 890.

Ishtiaq Ahmed — 777, 780.

Ishur Chancier Karmakar v. See tul Das
Mitter— 868, 869, 881.

Ishwar Chandra Jogee — 81, 670.

Ishwar Chundcr Ghosal — 303.

Islam — 66.

Ismail, 27 Cr. L. J. 1013—794, 796.

Ismail Ali Bhai — 90.

Ismail Khadixn Sahib — 549.

Ismail Khan, 8 All. 649—894, 896.

Ismail Khan, 6 Lah. 463 — 154, 875.

Ismail Khandivsab — 348, 549.

Isrec Panday — 663,

Isswar Chandra Guha — 22, 360, 361.

Isswar Chandra Mundle v. Rahim Sheikh
—851.

Istilingappa Shivapa — 570.

Isu Sheikh — 663.

Izod, 20 Cox. C. C. 690—525.

J*

I. A. Finan — 98.

j. B. Ross v. C. R. Seriven— 338.

THE INDIAN PENAL CODE

xlvi

J. R. Das — 302.

Jabanullah, — 242.

Jabed Shikdar— 737.

Jabdur Gir v. Jogmohan Gir— *234,
Jackson, 7 Cox. C.C. 357 — 47, 108.

IT. R. 653 — 100.

„ 1 C. & K. 384 — 772.

„ I Lewin C. C. 270—350
Jadu Bar- -243.

Jafar— 613.

jafar Shah — 056, 660.

Jaffar Ayab Katchi — 836.

Jaffar Hossain Khan Saheb v. Krishn Scr-
vai — 461.

Jaffir— 826.

Jagabandhu Karmakar — 378.

Jagadish Narain Tiwari— 172.

Jagan Du boy — 869.

Jagannath, A. L. J. 179 — 657.

16 Cr. L. J. 270—638, 696.

15 Cr. L. J. 351—886.

10 S. L. R. 45—960.

Bhikaji — 857.

Tripattia — 209.

Jagannatham — 845.

Jagarnath Mandhata. 24 C. 324 — 144, 225,
612. 640.

Jagat Chandra Sarnia v. Lalchand — 273.
Jagat Charaii Roy — 700.

,, Narain — 210.

,, Ram — 344.

,, Singh — 151.

Jagdco Shahu — 345.

Jagesher Roy — 248.

Jaggeswar Dass v. Kovlas Chander —
Jagnath, 110 I. C. 218—865.

Jagmohan Singh — 721.

Jagtu — 554.

Jagut Mohini Dasee — 168.

Jaha Bux — 937.

Jahan — 603.

Jahangir — 567.

Jahangira — 751.

Jahiruddin — 224, 255.

Jahur Sheikh — 551, 552.

Jai Dobi— 999.

Jai Jai Ram — 340.

jaipal Gir v. Dharmapala — 45, 48, 502.
Jaipal Kunbi — 33.

Jai Ram — 633.

„ „ Mahton— 147, 228.

,, Sahu — 645.

Jaladu — 130.

Jalal— 689.

Jaluddi — 273.

Jalil Bhaoin— 694, 696.

Jalul— 793.

Jamait Mullick — 243.

Jamaluddin —515.

Jamadar Rui — 810.

Jamdad— 85.

James, 7 C. & P. *>53 — 93a,

James Anderson — 14.

James Crawshaw — 495, 749,

James Gardner — 727.

James Jarvis — $50.

James Lapier — 731.

„ Lloyd — 1051.

„ Roberson— -723.

James Sommersett — 673.

,, Soud der — 685.

„ Tucker — 723.

,, v. Jones — 467.

Jamna — 414, 572. ?

Jamna Das — 323.

Jamni — 97.

Jamnu — 86.

Jamoona — 382.

Jamshet Sardar — 139.

Jamuna, 2 Bom. H. R. 134—314.

Jamurha — 85.

Jamutcha — 83.

Janakinath Chakraberty v. Jnanendranath
Chakraberty — 332.

Janaki I^rasad, 43 A. 233—360, 641, 642,
Janki Rai, 49 A. 482—360.

Janardhan Damodhar — 1008, 1033.

Jane Clark — 461, 592.

Jane May — 592.

,, Perry — 593.

Jang Bahadur Lai — 927.

,, Bahadur Singh — 313, 376, 850.

Jangi Singh — 870, 880.

Jangu v. Ahmadullah — 502.

Jani Hira — 814, 835, 836.

Janki, 7 B. 82—164.

„ Prosad, 8 A. 293—146, 322, 324, 641.
Ian Mahamed, 10. C. 584—39, 927, 938.

Mahomed, 4 Bom. L. R. 435, 1028.

,, Mahommad, (A. I. R.) L. 861—531.
Janmahammad v. Narain Das — 499.
Jannatham — 845.

Jarha v. Surit Ram — 158.

Jarvis — 476.

Jasha Bewa— 567, 560, 562.

Jasimuddin Sheikh — 989.

Jasoda Nand — 331.

Jassu Ram, 4. Lali. 246 — 920, 933.

Jasuram, (A. I. R. Pat. 143 — 229.

Jasuali — 686.

jasuram Marwari, 24 Cr. L. J. 745—149,
230, 237.

Jaswant Rai — 261.

Jati Mali— 662.

Jati Prasad — 327.

Jatia Mahadeo — 663.

Jatra Mohan Basak v. AkhilCh. Bysak-243.
Jatra Sheikh v. Reasat Sheikh — 986.

Jatu Singh v. Mahabir Singh — 246.

Jawahir v. Parbhoo — 48.

Jawahir Pattack v. Parbhoo Ahir — 1082.
Jawahir Thakur — 52, 908, 928.

Jawala Ram — 909.

Jaweennath — 650.

Jawla Prasad— 803.

Jay Krishna — 1084.

Jefferies — 163.

Jehan Buksh — 637.

Jehangir v. Secy, of State— 104.

Jehara Bibi — 566,

‘ ehar Mullick — 88.

Jehri— 799.

Jek Singh — 540,

Jellyman — 712.

Jellyson v. Jone's Application — 953, 958.

‘ eniier — 26, 723.
eolal— 147.

; ooli — 106, 521,539,599.

table of cases

Xlvii

, cromiah v. F. S. Vas — 990.

1 essop— 811.

] etha Nathoo — 671, 677, 690.

Jetty v . Field — 506.

] habbar Ali — 937.

Jhabu — 545

* hakri Chamar — 41, 150, 151, 546.

Jhalkar Tewari — 250.

Jhalku Tewari- -229.

Jhamuk Naniah v. Shadashib Ho}’ — 873.
Jhautala Nashya — 711.

Jharu Sheikh — 890.

Jhoomuck Chamar — 88.

Jhubo Mahton — 252.

Jhugroo — 185.

Jhulan Sain — 504.
jijibhai Govind — 379, 383.

Jita — 85.

Jithalal— 807.
jit Singh — 418.

Jivaram — 137.

Jivram Sav Chand — 757, 776.

Jiwanand — 903, 904, 905, 908, 918, 949.
Jiwan Raut — 250.

Jiwan Singh — 872, 891.

Jnancndra Nath Ghatack — 180.

Joan Bleasdale — 168.

Jobania — 735.

] odha Singh — 702.

Jogaya — 1038, 1039.

Jogondra — 413.

Jogendra Chandra Bose — 206, 208.
Jogendra Lashker v. Hiralal Chandra
Poddar— 411, 414, 640.

Jogendranath Ghosc — 344.

Jogendranath Maker joe 33 C. I. — 314,378.
Jogendranath Mukerjee 24 C. 320 — 145,
146.

Jogeshur Bad gee — 803.

Joggeswar Das — 621.

jogeswar Das v. Koyes Chandra — 849.

jogidas Babu — 928.

jogjiban Ghosh — 192.

jogun v. Nobo — 79.

. oharaddin Sirkar — 270.

’ ohiruddin — 252.

John Ardley — 838.

John Bingley — 916.
john Bir^ett — 904.

" ohn Brown — 534.

John Bruce — 14.

John Dixon — 465. •

. ohn Dowlat Moon — 120.

, ohn Harper & Co. v. Wright ButlcrCo.~95ti
] ohn Martin Sequeria v. Luja Bibi — 918.

] ohn Milnes — 346.

] ohn Noran — 771.

’ blin Pascoe — 393.

] ohn Patrick Welsh — 424.

ohn Reed — 95,

John Smith, 27 L. J. (M. C.) 5—37.

John Smith, (1820) R. R. 417—878.

, ohn Smith, 8 Cox. 32 — 900.

] ohn Taylor — 713.

' ohn Thomas — 534, 541 .

] ohn Turner — 802.

' ohn Webb, 2 Lewin C. C. 196 — 128,

; ohn Webb, (1819) R. R. 407—921.

John Williamson — 128.

John Wright — 120.

Johnston v. Orr-Ewing — 956, 901.

Johri, 29 A. L. J. 177—384.

J oh ura Bibi — 557.

Joint v. Cycle Trading Publishing Co.—
1063.

Jokhu— 486.

Jolliffe — 1016.

Jonad Koop — 79.

Jonathan Dade — 916.

Jonathan Davay — 872.

Jones v. Fay — 127.

Jones v. Merionethshire Building Society
—389.

Jonnalagadu Venkatarajudu — 311, 317.
Jorabhai Kishabhai, 50 B. 783 — 368, 921.
Jordon & Cowmeadow — 114, 686.

Josef Casoraty — 152.

Joseph, 1 Weir 223, 441
Joseph, (A. V.) 3 Bur. L. J. 265—173.
Joseph Davison v. Duncan — 1012, 1013.
Joseph Dawson — 16.

Joseph Merian--63, 690.

J oseph Owen — 1 7 9.

Jotco Ghoraee — 607.

Jotharam Davay — 870, 874.

Jotiprasad Gupta — 183.

Jotish Chandra Mukerjee — 345.

Jovabliai, 50. B. 783 — 356.

Jowahir Shah v. Giridharee Chaudhurv —
619.

Jowahir Singh — 88.

Joy Chandra Sarkar — 205, 209.

Joyennlla Bepari — 800.

Joy Gopal — 602.

Joy Krishna Samanta — 137, 1039.

Joy Krishna Singh v. Man Patuck — 822.
Joy Narain Patro — 366, 390.

Joy Nath Mondal v. Jamul Sheikh— 45.
Judah— 30.

Judagi Mullah — 123, 562.

Judagi Rant — 641.

Judhistir Gope v , Sheikh Samir — 239.
Jugal Das Dalai — 461.

Jugal Narain Singh — 860.

Jugdown Sinha — 763, 768, 769.

Juggan Lai! — 343, 923.

Juggernath Singh — 716.

Juggeswar Das v. Kaylash Chandra
Chatterjee — 844.
julua — 599.

Juma Bin Fakir — 12.

Juman — 817.

Jungle Lall— 400.

[ ura Khan— 873, 881.
justices of Kent — 453.
ustices of London-derry, — 503.
jwala Prasad 51 A. 470—968, 971.

, wala Prasad 37 C. 204 — 859.
jyotish Ch. Ghose — 902.

Jyotish Chandra Mukherjec — 789, 902,
905, 949.

K.

K. Sinha Chalam — 799.

K. T. King v. J. N. Silas— 485.

xlviii

THE INDIAN PENAL CODE

K. Venkappa — 477.

Kabatulla — 740, 800
Kabili Katoni — 551.

Kabiruddin— 147, 148, 229.

Kabul Patter — 585.

Kachria — 562.

Kadam, (1910) P. W. R. No. 45 — 687.
Kadan, 1 Weir 40 — 96.

Kaderbhai 5 — 322.

Kader Nasyr Shah--116, 120.

Kader Ravatton — 369.

Kader Sundar — 749, 750.

Kadhu Singh — 147.

Kadir Baksh — 53 1 .

Kadir Bux— 814.

Kadir Pakiri, 11 Bur. L. J. 202—344.

Kadir Pakiri, (1917) M. L. J. 242—344.
Kadue Mai — 919.

Kahanji Dharmadasi — 260 , 261.

Kailash Chandra, ICC. 657—873, 890, 880.
Kailas h Chandra Acharya— 488, 489, 490.
Kailash Chandra Das, 6 C. W. N. 382—
925, 914.

Kailash Chandra Dev Ray — 783.

Kailash Chandra Pal, 46 C. 712 — 825.
Kailash Chandra Rishi — 742.

Kairathadi Anaut Bhattar — 860.
Kakde— 1010.

Kala — 413.

Kalachand Gope — 587.

Kalachand Maitra — 26.

Kalandaivelu — 976.

Kala Singh — 557.

Kalaya — 298.

Kaleo Bepari — 147.

Kalee Charan Sheristadar — 275.

Kalce Modak— 810.

Kaleek — 825.

Italia Amra — 407.

Kalicharan, 24 A. 256 — 13.

Kalioharan Das — 551, 564. f

Kalicharan Gangooly, 6 W. R. 92 — 146.
Kalicharan Ganguli, 21 W. R. 11 — 106.
Kalicharan Lahiri— 347.

Kalicharan Mukerjec, 11 C. L. R. 232 139.

Kalicharan Mukherjee, 6 A. L. J. 184 — 920.
Kali Charan Sarma— 2*62, 263.

Kali Charan Sheristadar — 275.

Kali Din— 913.

Kali Munda — 162.

Kalinath Gupta v. Govinda Chandra
Basu — 1028.

Kalinath Nag Chaudhury— 880, 881, 873,
869.

Kalinath Roy — 210.

Kali Amra— 407.

Kalia Kerio— 73.

Kali Prasad Banerjee v . Bharat Chandra
Banerjee — 901, 910.

Kali Prasanna Ghosh — 326.

Kali Prasanna Kabyabisharad— 1032,
1034, 1004.

Kali Udayan— 666.

Kaliyani — 515, 597.

Kalka— A. I. R. (1925) A. 291-847

Kalka Prasad — 947.

Kallaswami, 29 Bom. L. R. 922— o98.
Kallu, 3 All. 00 — 403.

Kallu, 18 Cr. L. J. 450—737.

Kallu, 22 C-r. L. J. 741—537.

Kallu, 40 All. 271—1027.

Kallu. 5 All. 233—974, 984.

Kalu Choukidar — 407 -

Kalyan Singh — 1049.

Kalyani v . Ram Deen Lala — 348.
Kamachinatha Pillai — 905, 915, 929, 936,
949.

Kamakshi Achari v. Appaon Pillai — 493.
Kamal Das — 820.

Kamal Fakeer — 737.

Kamal Kristo Banik — 329.

Kamala Pat — 699.

Kamamun — 747.

Kamdar Ali Serang — 475.

Kamochinathan Chetty — 33 1 .

Kampta Prasad — 281.

Kanai Daa Bairagi v. Radhasyam Basak —
954 955.

Kanailal Gowala — 96, 620.

Kanchan MolLa— 76, 79, 82. 83, 241,
255, 712, 992.

Kanchi Doraisamy Mudaliar — 960...
Kanda Kamala Venkatta Reddi v. Kumari
Rae— 27, 859.

Kandaswami Goundan — 642.

Kandaswami Mudaliar — 462, 463.
Kandaswami Iyer — 788.

Kangalla Mudak — 450, 452.

Kangla, (1898) A. W. N. 163—514.

Kangla, 23 All. 82—872.

Kanhaya Lall — 482.

Kanji Shivaji — 833.

Kaniappa Naiker — 628, 789, 897, 971, 939,
364, 367.

Kan ova Kosarau — 543.

Kantoram Das Gobardhan Das, — 342.
Kanshi 8 L. L. J. 188—42, 535, 546.
Kapalavaya Saraya — 2 M. H. C. 247 38,
138, 927.

Kapil Mandal v. Rabbani Sheikh — 77,
603.

Kaptan v. G. M. Smith — 637.

Karachi Municipality v. Bhojraj — 813,
837.

Karali Prosad Guru— 872, 873, 880, 890,
891, 1045.

Karam Ali— 141.

Karam Singh— 240. 664, 553.

Karamat ullah — 3 1 9.

Karan Singh— 540, 645, 642, 672.

Karaturi Na gamma — 020.

Karban— 653.

Kari Gope v. Mobanto Monomohan Das —
352, 359.

Kari Gowda— 383, 384.

Karim Baksh, 17 C. 574—375, 382, 383,
384. 1

Karim Baksh, 25 Cr. L. J. 319—743,
947.

Karim Bux, 3 W. R. 12—149.

„ „ (1927) 9 L. 550— 747.

Karimdad, 6 C. 490—314, 379.

Karimdad. P. L. R. No. 273 of 1914—939,
Karimuddin — 710, 782.

Karim Din — 282.

Karke Nachier — 731.

Karma Urang — 110.

Karman Singh— 753. * „

TABLE OF CASES

xlix

Karri Mangadu — 703, 764, 840.

Kartic Chandra Das — 748.

Kartikeswar Roy v. Bans id liar Byas — 714.
Karuna Baistobi — 078.

Karuppa ('ounden v. Kothukora Thiru
Mala Gounden — 729.

Karuppa Tcvan — 88.

Karura v. Mam Rai — 653.

Kascm Ali 47 C. 154—749. 751. 752, 805,
Kasem Ali 45 C. L. J. 204—188.
Kasheenath Chango — 80.

Kasliia Antoo — 90, 179.

Kashinath Bachaji Bagul — 1U19, 1020.
Kashinath Bagaji Sali — 785.

Kashinath Bhanshe — 713.

Kashinath Dinaker— 363.

Kashinath Naik— 36, 138, 171, 927, 928,
917.

Kashi Ram, 46 A. 906—379, 549, 1000
Kasim Khan — 337.

Kasimuddin — 532.

Kasi Viswanatham — 780, 786, 947.

Kasiya Pillai — 480.

Kassiya Isub Sab — 103.

Kastuya— -8.

Kastyii Ram — 853, 849.

Kasya Bin Raji — 137.

Katari Viranna — 356.

Kathapermal — 10, 13.

Ivatwara Rai — 78, 240, 599.

Kau’ashia — 416.

Kaushi Ram— 688.

Kayakool Natavalepurayit Moidin Kutti
v. Pottar Kular Koman Nair — 870.

Kay a am bu — 53 C

Kazi Baziar Rahman— 1 15. 120, 119, 121.
Kazi Zcamuddin — 266.

Kcamuddin Karikar — 77, 83, 240. 003,
604.

Kedar, 26 Cr. L. J. 70—509.

Kedarnath Chakra verty, 29 C. \V. X. 408—
825, 828, 814, 836, 850.

Kedarnath Chatter jee — 33.

Keifa Singh— 211.

Keighey v. Bell — 98.

Keilasum Patter — 310.

Kellie, 17 A. 153—777.

Kelly, R. and R. 421 — 165.

Kemp v. Neville — 99.

Kendra Kumar — 753.

Kenny— 710.

Koramat Ali — 344. •

Keramat Mandal — 662, 664, 689.

Kerr— 759.

Kersey — 550.

Kern — 849.

Keruppana — 822.

Kesar— 653.

Kesar Din — 658.

Kcsari Mai — 399.

Kesava I^llai — 274.

Keshab— 2, 13.

Kcshab Chandra Boral v. Nityanand
Biswas — 772, 782.

Kesha vial v. Baigiria — 1019.

Kesha va Clietti — 561.

Kesha vji Madhabji — 824.

Keshavalu Naidu — 538.

Keslpvlal — 881, 869.

Keshoram— 783.

Kesho Singh— 850.

Keshwar Lai Saha v. Gris Chandra Dun
178.

Ketabdi Mondal — 253, 255, 513, 508
572.

Ketabdi Sheikh — 240.

Keyn — 14.

Khadam Ali — 929.

Khader Moidin — 477.

Khadirn Hussain — 428, 530, 532.

Khadim Shaik — 165.

Khadir Bux — 225, 245.

Khagendra Nath Chaudhuri— 188.

Khair Mahommed — 1045.

Khairati, (1917) 15 A. L. J. 807.

„ (1884) 6 A. 204—691.

Lai, 29 Cr. L. J. 291—781.

,, Ram v. Malwa Ram, 5 L. 550—
918, 925, 932, 940.

Khaja Mahomed Hamin Khan— 504, 869
Khajah Narul Hossain v. Fabre Tonnerra
—166.

Khalas— 892.

Khaliji, 24 A. 143—228.

Khamani, 24 A. L. j. 171—1000.

Khamiso — 256.

Khander — 173.

Khanderao— 771.

Khan du, Rat. Unr. Cr. C. 302—89 2.
Khandu Singh. 22 B. 768—31. 901 90 s ’
910, 935. 937, 938.

Khandu Valad Bhawan, 15 B. 194—510 581
Klianjan— 566.

Khan Mahmad — 85.

Khanoom Ram— 886.

Khanu Kori — 412.

Khan um — 613.

Khatabai— 710.

Khatija Bibi— 659.

Khawja Hussan— 747.

Khcdun Misser— 528.

Khcm, 22 A. 115—351.

Khem Chand Naratham Bhavsar— 77 •>
Khemu Singh, 1 VV. R. (Cr.) 19— 230 "

Ivhemu Singh, 1 W. R. 18 223.

Kherode Ch under Mazumdar — 355 357
Khetramoni Dasi, 35 C. L. J. 451-678,

Khetramoni Dassi ,v. Shamlal Dhone
Dutt, 14 Cr. L. J. 267—420.
Khctranath Dutt v. Indra J alia— 700 705
Khijiruddin— 660.

Khirode Chandra Roy — 489.

Khirode Kumar Mu kerjee — 757, 777, 781.
Khitish Chandra Rai Choudhury — 221, 208.
Ivhoab Lai — 348.

Khodabux v. Bakeya Mundari — 812
Khodabux Fakir— 591.

Khoda Jogta — 476.

Khogavi— 530.

Khona — 805.

Khona Ram— 315.

Khota Ram — 300.

Khudiram — 48.

Khusal Hiranian — 39.

Khusal Singh, (1886) A. VV. N. 23—260.
Khusal Singh, 25 Cr. L. J. 234—738.
Khushali— 423, 812,

t

THE INDIAN PENAL CODE

Khushi Ram, 20 A. I-. J. 162—797.
Khushi Ram, 3 L. L. J. 99—841.

Kier v. Leo man — 389.

Killakyatara Bomina— 136.

Kimber The Press Association — 1013.
King v. Lesbini — 530.

King v . Orrne — 1002.

Kinhussa v. The Queen — 61.

Kipps — 649.

Kirpa Singh — J37.

Kirpal Singh— 8, 79 i, 795.

Kisan Bapu — 302.

Kisan Das — 179, 253.

Kisan Yasu — 87.

Kishan Gopal — 227.

Kishan Singh — 253, 540, 564.

Kishenlal — 102, 149, 610, 612.

Kishorilal — 323.

Kishorilal Chatterjee — 810, 820, 823.
Kishun Singh — 1052.

Kishory Mohan v. Horshook — 102.

Kissto Soonder — 941.

Kitabdi, 35 C, W. N. 184- 83, 253, 255.
Knight v. Bowers — 465.

Kodangi. 61 M. L. J. 960—384.

Kojal Haider — 234.

Kola Lalang — 4.

Kolanda Nayakhan — 112, 560.

Kollu — 244.

Komul Dass — 658.

Konava Kisavan — 543.

Konee — 738.

Koocheri — 651.

Koordan Singh — 650.

Korath Mamaad — 673.

Kori Singh— 1019, 1028.

Kotamraju Venkatravadu— 815, 901,

908, 934, 949.

Kotayya — 28, 704.

Kotha Gounden — 944.

Kotha Subba Chetti — 310, 348.

Kotiya— 512, 527.

Kofcoora The van — 739.

Kottiagedu — 81.

Koura — 223.

Koylash v. Sonaton — 6, 19.

Koylash Chandra Das — 223.

Kra Cahull — 559.

Krishna, 2 A. 713—364.

„ 24 M. 647—605.

„ Govinda, 20 C. 358 — 31.

„ (1878) Rat. Unr. Cr. C. 134—479.

,, Aivar v. Ayyappa Naick — 858.
f • Ayyar— 244, 613, 858.

„ Behari Sen v. Corporation of Cal-
cutta — 566.

Chandra Bhowmik — 417.

„ Prasad Mandal v. Rabindra Nath
Dinda— 931, 935.

,, Rao— 773.

„ Sahaji — 697.

,, Shethi — 40, 166.

,, Aiyangerv. Nallapermal Pillai — 5.

,, Dhan Dutt — 65,90.

„ Maharana — 662.

,, Gopal Sharma — 204.

„ Pannadi — 239.

,, Swami Naidu— 177, 178.

Khshuagovinda Das— 298.

Krishnagovinda Pal— 33, 912, 919, 933 #
936, 938.

Krishnalal Dliar v. Prafulla Kumar— 773.
Krishnammal v. Krishna Iyengar— 1028.
Krishnappa - 463. *

Krishnamachari v. Shaw Wallace — 778.
Krishnasami — 1018.

Krishtappa — 300.

Krishtappa Khandappa — 908, 912.

Kris to Behari Dass — 37, 90.

Kudrat Nath — 766, 775.

Kudrutulla - 233, 238, 254.

Kulada Prosad Mazumdar — 6, 8, 50.

Kuldip Panday v. Ramnath Singh — 842.
Kullasan, 29 B. L. R. 1478 — 271.

Kumars warn i Chetti v. Kuppuswami
Chetti — 625.

Kumaraswami 625, 988.

Kumargurudasa Swamigal /;. Krishna
Swami Mudaliar— 1007, 1034.

Kumbola Guruvadu v. Yeragati Pilli
Kristna — 621.

Kumeda Charan G hose — 773.

Kuinud Nath Chakravertv v. Ajuo Pra-
manik— 329, 331.

Kunda Sing— 541.

Kunda Satyatdama — 183.

Kundan — 86, 591.

Kunhamba — 318.

Kunhi Bava — 934.

Kunja Beharec — 423, 425.

Kunja Bhuiya- 142, 149, 231, 243. 249, 248.
Kunjalal— 869.

Kunja Nayar —909, 915.

Kumnamal Mayan- 240.

Kunniappa Naicker — 34.

Kappa l^ilai — 456.

Kuppusami — 144, 1038.

Kurban Ali — 502.

Ktire, 16 A. L. H. 6J5 -254, 570.

Kure, (1886) A. W. N. 65—254, 748.
Kunnayal Mayan — 240, 599.

Kushabin Yessa — 88.

Kushal Pal Singh — 925.

Kuttiah Odayoth Veetil Kumar Nambiah
—706, 709.

Kuttichami Mootmean v. Rama Patter —
498.

Kutub Ali — 514.

Ivutuva Rowther v. Suppau ‘Asari — 730.
Kya Nun — 55.

Kva Sone — 390.

K'vaw Ilia— 687.

L.

Labh Singh — 688.

Laboucherc — 996, 1001.
Lachman, 6 A. W. N. 181 — 851.
Lachmanlal — 900, 912.

Lachman Das — 547.

Lachman Singh — 316, 526, 919.
Lachmi Ram — 656.

Lachmi Devi — 236, 329, 332.
Lachmi Singh — 234.

Lachmi Shaw — 314, 378.

Lad Khan — 745,

TABLE OF CASES

H

Lad ha Singh — {509.

Ladka — 814.

Lahanu Manaji — 619, 620.

Laidman v. Hearse y — 1009.

La j pat Rai — 2 62.

Lai Hing — 417.

Lake v. Simon — 767.

Lakhmidas Makandas — 331, 332.

Lakhu Shaha — 338.

Lakhya Govind — 790.

Lakshia — 434.

Lakshmaji — 339, 356, 357.

Lakshman Bor v. Narain Hazra— 332.
Lakshman Dagdu — 115.

Lakshman Goundan — 714, 875.

Lakshman Kalyan — 621.

Lakshman Martrand — 451.

Lakshman Raghunath — 30, 871.

Lakshmi — 166.

Lakshmi Das — 871, 876.

Lakshminarayan Aiyar — 1 61, 277.
Lakshminarayan Chcttiar — 711, 713.
Lakshmi Prasad — 824, 1051.

Lala, (1910) P. L. R. No. 32 of 1911—558,
581.

Lala, 16 A. L. J. 157 -890.

Ulai—883.

Lala Mittorjee Singh — 332.

Lala Ojha — 245, 912, 935, 936.

Lala Rcoji Maliala— 750, 7 65. 784, 780.
Lalbu — 593.

Lalchand Roy -716, 766, 769.

Lai Gumal— 903, 904, 916.

Lai Mohan Poddar — 337.

Lai Mahammad — 732.

Lalhoo Ghella — 948.

Lalit Mohan Chakra 1 verty — 198, 199, 274,
552, 553, 776, 783.

Lalit Mohan Sarkar, 22 C 313 — 32, 902,
904, 905, 948, 949.

Lalit Mohan Sarkar, 38 C. 559 — 190.

Lalji, 23 A. T..J. — 32, 224.

Lalji v. Giridhari— 37S.

Lalji Ram— 890.

Lai Khan, (1918) P. L. R. No. 135—04 5.
Lai Swhai — 54.

Lai Khan Kurum Khan — 169.

Lalla Balia Mai v. Ahad Shah — 6.

Lalli— 363.

Lallu Kerwar — 71.

Lai Mahomed — 711, 815.

Lai Mohan v. Kalikishorc — 244.*

Lai Singh, 9 M. L. J. 12 — 801.

Lai Singh, (1914) P. L. R. No. 113 -801.
Lai Singh, 25 Cr. L. J. 386—717.

Lalu Gope — 842.

Lalu Ram — 9, 461.

Lambert — 202.

Lamboton v. Mellish — 456,

Lane v. Ramdall — 450.

Laugher v. Pointer — 455.

Langmead — 793.

Larner — 817.

Larrymore v. Pernendo Deb Rai — 474.
Langrish v. Archer— 492.

Lankanaw — 701.

Lanphier v. Phipos — 128.

Utif, 39 A, 123—951, 957.

Vatif £han— 39 , 135, 166 , 609.

Latiful Hassan v. Mumtaz Ali Khan — 72.
Latimer— 544.

Latow, (A. I. R.) A. 33—387.

Lava — 642,

Lavey — 425.

Law, 2 F. & F. 666—117.

Lawrence v. Hedger — 96.

Laxman, 51 B. 101 — 776.

Laxmya Shiddhappa — 548.

Lazar — 976.

Leather Cloth Company v. American
Leather Cloth Co.— 950, 951, 954.
Ledgh- 879.

Ledu Molla — 749, 750.

Lee— 165.

Lee v. Hailey — 953, 956, 959.

Le Fann v. Malcolmson — 1004.

Legal Remembrancer v. Ahi Lai Mondal
—342.

Legal Remembrancer v. Karuna — 4.
Legal Remembrancer, Bihar and Orissa v.
Matukdliari Singh 20 C. W. N. 128 —
226.

Leigh — 4F—F 915—117.

Lekraj — 38

Le Lievre v. Gould — 473.

Lenna rd — 430.

Leppard — 703.

Lesibini — 533.

Lcsbini 3 K. A. 1116 530.

Lesley— 14

Lether Thakur — 244, 245.

Levct— 96.

Levine— 814.

Lewis s, 9 C. and P. 523 — 579.

Lewis, K. R. 38 M. 73 — 103.

Lewis Townly — 704.

Lewis v. Levy — 1014.

Lichfield’s case — 288.

Lilia Singh- 322, 325.

Limbu, 31 Bom. L. R. — 322, 325.
Limbya— 302, 363.

Lim Hoe- 1049.

Lingan Ranianna — 165.

Lingap pa — 44 5.

Lister — 456.

Litton — 106.

Lloyd— 687.

Local Government v. Gan gar am— 817, 833.
Local Government HanmatRao — 720.
Local Government v. Jharu Singh— 835,
836. ~

Local Government, C. P. — Madho I'atwari
27, 29, 31, 776.

Local Government v. Pyarelal— 690.
Lochan — 533, 534.

Lock, 12 Cox. 244 —

Lock, L. K. 2 C. C. R. 10—131.

Loganath Aiyar — 23 2.

Lokenath Kar — 231, 267.

Lokenath Sabi — 347.

Lokenath Sarker — 77, 403.

Lokumal — 951.

London and Brighton Ry. Co. v. Truman

460.

Long — 128.

Lon^Dintom — 106.

Longion oas Co. — 4/L
Lochy Bewa— 822.

lit

THE INDIAN PENAL CODE

Lopez v. Lopez — 976.

Lord Audley — 684.

Lord Mayor of London — 710.

Love — 66.

Lovell — 723.

Lovett — 203.

Low— 117.

Lowden — 443.

Lowrey v. Walker — 448.

Luchnian Singh — .161, 165, 630.

Luchmi Singh — 919.

Luchmoka — 52.

Luckumsey Rowjee v. Httrvum Nursey —
1001.

Lukhee Singh — 306, 307.

Lukhmi Singh — 225.

Lukhini Agrodnni — 112, 113.

Lumley- — 550.

Luxman Naravan — 787. 1053.

Lynch, 6 Cox/C. C. 445—763.

Lyndon's Trade Mark — 953.

Lyons Sons & Co. v, Gullier — 477.

M.

M. A. Kaleek— 811.

Ma Ain Lon v. Ma On Pu — 357.

M. Bannerjee — 1025.

M'Clarence — 797.

M’Langhlin — 854.

M’Rue — 686.

M'Subrao v. Mulvi Kadcr — 1009.

M. S. Adhikari — 332.

Maccrea— 832, 1049, 1052.

Macdongall v. Knight, 25 Q. 13. D. -—1014.
Macpherson v. Daniels — 401.

Madan Gopal. 34 A. 589 — 987.

Madan Gopal, P. R. No. 17 of 1910 -494.
Madanjit — 1009.

Madan Mandal — 870.

Madan Mohan — 27.

Madan Mohan Biswas — 682.

Madapusi Srinivasav Ayyangar — 296.
Madar Sahcb — 856, 852.

Madaree Chowkidar — 697.

Madari Sahcb — 611.

Madat Khan — 255.

Madat Khan, P. R. No. 67 of 1887 — 254.
Madat Khan, 8 L. 193—239.

Madduri Krishnanaina — 761.

Mader Sahefe — 883.

Madhab Chandra Giri Mohant — 4,

Madhab v. Navodecp — 375.

Madhava Bhanjo — 862.

Madho, 40 A. 28—611.

Madhoo Manjee — 737.

Madho Patwari, 23 Cr. L. J. 567—27 29,
31.

Madho Singh, (1878) P. R. No. 22—597.
Madho Singh, 23 A. L. J. 189—410, 414.
Madhu Singh Kaibarta— 741, 742.

Madho Sonar — 640.

Madhu— 325.

Madhu Hari— 700.

Madhu Sudhan — 71.

Madhu Sudhan v. Sasti Prasad — 846.

Madu Chinnaji Reddi— 927, 934.

Madur Jolaba — 515.

Maduri — 944.

Mafizuddi„45 C. L. J. 683.

Maganoe Beh?ra — 476.

Maganlal— - 135. 136, 277.

Maganlal Balabhai — 98.

Mahabat — 815.

Mahabir — 567, 595. ‘

Mahabir Hussain — 44.

Mahabir Prasad — 179, 830.

Mahabir Singh — 840.

Mahabir Tcwari — 745.

Mahabir Thakur — 358.

Mahadashet H884) Rat. Unr. Cr. C. 200 —
471.

Mahadashet, (1889) Rat. Unr. Cr. C. 432 —
851.

Mahadeo, 12 N. L. R. 188—143, 850.
Mahadeo, 24 Cr. L. J. 808—562.

,, Pan do y — 635.

„ Prasad, 45 All. 323—695.

„ „ 45 All. 680—704.

Rai— 614,

,, Shet— 851.

,, Singh, A. I. R. (1025) Nag, 404 —

419.

„ Singh, 27 C. 921—314, 378.
Mahadcv Govind — 762.

Misscr v. Naravan Ram Jha —
340.

„ v. Dhanraj— 820, 823, 824.

Mahajan Sheikh — 613, 641.

Mahalinga — 678,

Mahal i Ram — 309.

Mahamad Saccd Khan — 902.

,, Akbar— 151.

,, Humayoon Shah — 350.

, . Kasim — 406.

Mahammad — 896.

,, Ibrahim Sahib v. Shaik

Daooood — 598.

,, Nissa — 977.

,, Saib — 68.

Mahandu — 795.

Mahan kali Sriramalu— -239, 244.

Mahant Narain Das — 246, 561.

Maharaja Madhab Singh — 104.

Maharaj Missir — 347.

,, Prasad — 349, 352.

Mahboob— 795, 802.

Mahmed Fyaz v. Khan Mahomed — 848.
Mahendra Lai Bose v. Gopal Ch. Dev —
984. ‘ y

Mahendra Nath Missir— 344, 345.

Mahesh Chandra — 486.

Maheshdutt Singh — 245.

Mahesh wari Baksh Singh — 334.

,, Prasad Singh — 814.

Ma H!a So v. Nga Than— 141.

Ma Khawat Gyi — 50.

Mahim Chandra Roy v . A. H. Wateon—
1002.

,, Ali — 545.

,, Akhir — 778.

Mahomed Azam — 234.

„ Bhaklu— 918.

>f v. Jahabdi — 840.

Hossain, 5 W.R. 49—274, 337.

,, Hossain, 25 Cr. L. J. 228—566.

,, Hossain v. Forley — 594.

„ Hussain — 660.

„ Kabiruddin — 029. t

TABLE OF CASES

liii

Mahomed Khan — 137.

,, Sadiq — 483.

„ Shah Khan — 390, 400.

„ Wasil — 307.

,, Yaf— 432.

Mahomraed Siddiq — 340.

If Yeasin — 378, 379.

Mahpal Singh — 241.

Mahtab Rai— 423.

Maina — 322.

Maithya Gazoe — 532.

Makhewat Kyi — 47.

Makbul Hussain- -41.

Makbal Khan — 549.

Makhan — 802, 804.

Makhan Mapa v. Manindranatli Bose—
239.

Makin v. Att. General for New South
Wales— 932.

Makru Dusadh — 712, 892.

Makund Ram— 438.

Malalo Obiah — 313.

Mala Obigadu — 485.

Mala Singh — 566.

Malayan Kalan — 860.

Malhari — 429, 695, 793, 796, 799.

Malhers Martand — 274.

Maliappa Goundon — 456, 461, 485, 486.
Malik Amir Khan — 203.

Mali Mathu Servay — 945.

Mai Kaj i — 618.

Malla — 562.

Mallampati Narasinham v. Sub- Inspector
of Police— 646.

Maliappa — 332.

Mai Singh— 302.

Mai ton Board of Health v. Mai ton Marura
Co.— 456.

Maltu Gope — 244.

Malu Arjun — 79, 82, 241.

Malumir Co. v. Finley Fleming & Co. —
959, 961.

Mamun— 538.

Mamrez 26 Cr. L. J. 1350—735.

Mana, 32 Bom. L. R. 1143—513, 525, 605.
Mana Singh — 147.

Manbir — 1042.

Mancharji Kavasji Shapurji — 493, 495.
Manchu Paidugadu v. Kaddin Seth
Tammayya* — 706.

Maneek Chand — 331.

Manga (A. 1. R) L. 864—564, 578.

Mangal Rai — 374.

Mangal Singh — 239, 240.

Mangal Tekchand — 2.

Mangan Das— 241, 254.

Mangesh Jiwaji — 1037.

Manghai Ram — 420.

Mrngovind Muchi — 144, 611, 640.

Mangu — 391, 392.

Manhari Choudhurani— 793, 815.

Manhu Singh — 348.

Maniben Kera - 261, 264.

Maniben Liladhar Kara — 205.

Manicka Asari — 913.

Manikala Ramanna — 39, 42.

Manilal— 770.

Mani Lai Asansthi— 395, 398.

ManiJK^nu— 827,.

Manin — 891.

Manindra Chandra Ghosc — 578.

Manindra Chandra Nundy v. Secy, of State
for India — 5.

Mani Ram — 121.

Maniruddi, 35 C. 718- 238.

Maniruddin— 147, 229, 238, 243.

Man jay v. Shahu Shetti — 1027.

Manj Din — 980.

Manjhi Mamud — 296.

Man joo — 562.

Manjubhai 599.

Man k to low — 650, 655.

Mankura Pasi — 749, 750, 751, 752.

Man man t K. Mehta — 947.

Manmatha Nath Biswas — 41.

Manni Ghasi. — 739.

Manning — 191.

Monohar Mandan— 552.

Mansany Bhava Sang — 704.

Mansaram — 825.

Manshonial Deumal — 654.

Man Singh Dagi Pa til — J054.

Mansoor Husain — 885.

Mansur Hasan v. Muhammad Zaman —
230, 260, 333, 461. 503.

Mantri Mattapalli Narshinga Rao — 724.
Manuya, 49 M. 74 — 194.

Man Tripragalla Mor Kundeyulu— 489.

Ma Posi— 376.

Maqsud — 504.

Marcus — 904.

Maria Goundan — 840
Marigowda — 912, 924.

Marimathu, (192) M. W. N. 796—567.
Marimathu, 5 M. -L. T. 296 — 113.

Mari Mathu Naidu — 232.

Mari Valayan — 741, 969.

Mariinattu — 868, 876.

Markuss— 128.

Marely— 162.

Marogowda v. Srinivas Rangachariar — 854,
856.

Marsh v. Loaders — 112.

Martin L. R. 1 C. C. R. 56—817, 841.
Martin, 2 Mood C. C. 123 — 1046, 1082.
Martin, 5 Q. B. D. 34—912, 915
Martin v m Benjamin — 495.

Martindale — 833.

Martin Kelly — 179.

Martin Vithoba — 601.

Martu Vithobu Prabhu — 580, 581, 745.
Maru — 54.

Mary Blandy— 500.

Mary Conder — 599.

Mary Jones and Henry Palmer — 900.

Mary Mazafora — 904.

Ma Saw Yin — 313. ,

Masshar Hussain — 399.

Masti — 564.

Matabher Sheikh — 702.

Matadin — 362.

Mata Prasad, 20 Cr. L. J. 769—702,
829

Mata Prasad, 18 A. L. J. 371—829.

Matan — 318.

Mata Prasad v. Jokhu — 702.

Maten — 310.

Mathirulappan— 742.

liv

THE INDIAN PENAL CODE

Mathura v . Jawahir— 332.

Mathuradas — 162, 164, 175. #

Mathuradas v. Secy, of State — 636
Mathura Kan to v. Keshin Singh— 408.

Mathuramalingam— 63.

Mathura Prasad, 18 Cr. L. J. 6oo <83.
Mathura Prasad, 21 A. 127.

Mathura Prasad, 39 A. 715—38*., 38.1,

384.

Mathura R?i —880.

Mathura Thakur — 730,
Matilal Lahiri— 947.
Matilal Premsuck

965.

738, 742.
Kanhailal

Das -

Mato Ho— 563.

Mat ti Ven lean n a —22 1 , 232.
Mattius Kelly — 530.

Matuki Misser — 304, 3C4.

Matu Rain— 322.

Maul a Baksh— 119 1. C— 405.

27 All. 28—138, 769.
5 L. L. J. 375 — 609.

Maulu — 88.

Maulavi Abdul Latif — 31 i.

Maung Ba Maung— 130.

Maung Aung Jun— 527.

Maung Aung Tan — 524.

3 Maung Ba Thani -600.

Maung Gye— 40.

Maung Mya Gyi v. Mg Po Shwe-770.
Maung Po Hunin — 832, 1053.

Maung Po Lu — 836.

Maung Po Nyan — 616.

Maung Pu Kvi— 179.

Maung Sein— 997,

Maung Tin Saw — 419, 423.

Maungvi — 118.

May— 719.

May v Burdett — 484
Maya Da? -1026.

Maya Gyok — 84 1 .

Mayadeb Gossami- -344, 34a.

Mayaram v. Nichal i — 726.

Mayarem Sarnia v. Nichala Katam — 705,
846, 868.

Mayandi Thevan— 792.

Mayne— 163.

Mayor of East Free Mantle v. Aunois—

460 .

Mayor of Manchester v. Williams — 1002.
Mazher Hussain- - 903, 916, 948.

McAthey — 798.

McCarthy — 1005.

McDongall v. Knight -1014.

McDonnell — 16, 18, 727, 1025.

McDowell v. Standard Oil Co.— 1014.
McGill v. Byrne — 1029.

McGregor v. T1k vaites — 1023.

McGro wthe r — 135.

McKenzie — 190.

McLeod— 1000, 1012.

McNaughtan — 115, 117, 119.

McPherson — 1 047, J 050.

McQueen — 101.

McQuire v. Western Morning News Co.
1017.

Me Rea — 1052, 1055.
Md. Ashan — 733, 756.
Md. Hauq — 851.

Md. Hayat— 383.

Md. Hussain— 121.

Md. Oziullah v. Beni Madhab Choudliury
—191.

Md. Wasil — 307.

Mead v. Young — 915.

Meajan r. Sharufutulla Khan — 880.

Meajan and Obhoy Charan Das— 720.
Meakin — 122.

Medley — 455, 471.

Mcelan Khalifa — 78.

Meera— 835.

iMcer Abbas Ali v. Ahmed Ali — 719.

Mcer Burks v. Maung Hla — 1028.

Meer Y'ar— 798, 802.

Meerthumalai Gounden — 253.

Megha, 1 All. 637—88.

Megha Meah, 2 W. R. 39 — 515.

Meghraj — 834.

Meharban Singh, 6 A. 626 — 338.

Meharban Singh, 12 Cr. L. J. 112 —
639.

Meharban Ali Khan v. Si taro m — 399.
Mehdi Hassan— 847.

Meher Dowala — 705, 885, 887.

Meh r Sheikh— 270, 739.

Meher Wanji Belanji — 870.

Mehr Elahi— 274, 570.

Mclir Hossain Shah — 652.

Mehr Shaikh, 35 C. \V. N r . 945—245, 739.
Mehrban Singh — 338.

Mehru — 795.

Menazoodin — 58.

Menuit — 12.

Meredith v Sanjibani Dasi — 593, 594.
Merivale v Carson — 1011, 1017.

Merriman v The Hundred of Chipenham
—730

Mcria Gounden — 840

Methuram Dass v. Juggamath Dass —
1027.

Metropolitan Asylum v. Hill, 11 A. C. 45
—460.

Metropolitan Asylum District v. Hill, 6
A. C. 193—460, 462.

Metropolitan Ry. Co. v. Jackson — 472.
Merropolitan Salom Omnibus Co. v*
Hawkins — 1002.

Mewalal, 3 Pat. L. J. 147—882.

Mewalal, 18 A. L. J. 420—378, 380,

599.

Mg Shwc dKiji — 881.

Michael John — 947, 780.

Michell v. Jenkins — 377.

Middleton — 130.

Middleton v. Croft — 93.

Middle Ven kappa— 528.

Miggoti v. Colvill — 53.

Mihan Singh— 162, 183.

Mill too Singh — 83.

Mikunya — 491.

Milissich v. Lyods — 1014.

Milkhi Ram— 891.

Millard, (1813) R. ft R. 245—938.

Millard, 10 M. 218—976.

Miller— 655.

Mills— 810.

Milner v. Mclean — 227.

Milton v. Sherman— 823. • ^

Minem Nuggerbhatin — 79.

Minty v . Sylvester— 494.

Miran, 23 A. L. J. 1027-611.

Miran Baksh — 610.

Miran Shah- 4 - 1026.

Miras Chowkidar — 848.

Mirbux — 346.

Mir Anwaruddin v. Fatima Bibi— 1021.
1025.

Mir Dad — 157.

Mir Ekraj Ali — 342.

Mirichia — 590, 591.

Mirza Hassan-~377.

Mi Shove Y. —562.

Mithoo Singh — 78.

Mithulal — 164.

Mittla So v. Nga Than — 645.

Mitto Singh — 155, 228.

M' Laughlin — 854.

Moah— 913.

Mobarak Ali- -923, 931, 934, 939.

Mobarruk — 723, 726.

Mofizad Pceda — 649, 571.

Mo Govaran — 644.

Mogul Steamship Co. v. McGregor Gow
& Co. — 163, 401.

Mohabir Singh — 7.

Mohammad Ausain — 502.

Mohammad Mohsin -491.

Mohammad Sarniiillah v. Biswan a th — 1020.
Mohammad Gul v. Hazi Fazley Karim —
— 1020 .

Mohammad Nasimuddin' - 87 1 .

Mohammad Yusuf uddin — 7.

Mohan, 8 All. 622 — 533, 534.

Mohan, 5 A. W. N. 213—851.

Mohan Lai — 137, 1005.

Mohan an da Bhundary- — 804.

Mohan Chand Gandhi — 18, 421.

Mohan Kali Sriramaln — 238, 244.

Mohan Singh— 779, 782.

Mohan ta Narain Das — 574.

Mohan Lai Aditram — 602, 662, 687.
Mohendra Misser v. Narayan Ram — 339.
Mohcndra Prasad — 27.

Moher Sheikh— 226, 229.

Mohesh Soner — 424.

Mohcswari Prosad Singh — 10.

Mohideen Abdul Quadif — 1034.

Mahideen Pafliri — 306.

Mahim Chandra Nath Bhowmik— 329.
Mohim Chunder Sil — 822. •

Mohini Mohan Banerjee — 319, 325.

Mohini Mohan Chowdhury v. Harendra
Chandra Choudhury — 625.

Mohit Kumar Mukherjec — 902, 913, 921,
936, 938.

Mohit Pandcy— 164.

Mohiuddin, 51 C. L. J. 662.

Mohon — 836.

Mohon Lai v. Ram Charan— 1003.

Mohor Mir— 240, 604.

Mohunt Pursoram — 997.

Moideen Bros v. Eng. Thaung & Co.— 960.
Moinuddin — 146.

Moizuddin — 149, 151, 153.

Mojey — 820, 823.

Mokand Lai — 926.

Mokee^-155, 149.

Molai — 71 1, 732.

Molla Fuzla Karim — 374.

Moluk Chand Khalifa « 88, 89.

Mom j an Bibi — 416.

Mongal Singh — 240.

Mongu, 50 A. 186 — 395.

Mongyat Shah— 737
Monhar, 45 C. 727—317, 318.

Monia, 6 P. 512—241.

Monkhousc — 122, 123.

Monmohan Ghose — 202, 205, 206.
Monmohan Roy, 24 W. R. 33 -794.
Monmohan Roy, 20 C. W. N. 189, — 192.
Monson and Co. v. Boehm — 955.

Mon ta zuddin — 929.

Mon ton — 927.

Moodhoo Paul — 649.

Mookakandi Maniagram — 740.

Mooktaram Sirdar— 748..

Mooktee Kora — 62, 77.

Moon. 1 K. B.— 686.

Moo pah — 413.

Moore, 1 F. Sc F. 73—932, 938.

Moore, J Leach 335—731.

Moore v. Pearce’s Dining and Refresh-
ment Rooms — 467.

Moorga Chetty — 549, 357.

Mooshubroo — 304, 306.

Moreswar J onardan— 325.

Morgan, 13 C, W. N. 562.

Morgan, 9 Cr. L. J. 393—48.

Moriatty v. Brooks — 855.

Moro Bal want Mar the — J 37, 637, 1040.
Morrba Bhaskarji — 1037.

Mono— 430.

Morton — 927.

Mosamat Aimona — 113.

Moss, 16 A. 88—338.

Motee Chand v. Mohendra Nath — 7.

Motec jolaha— 739, 804.

Moth a, 27 A. L. J. 690.

Mothu Veera Valao — 814.

Motilal, 24 A. 155—50, 848. 850. 1038,
Motilal v. Kanhaivalal, 47 A. 855 — 808,
869.

Motilal Chandra — 9.

Motilal Ghose, 41 C. 173-417, 419.
Motilal Ghose, 45 C. 169 — 419.

Motilal Pramsuk v. Kanbaialal Das — 32
C. 969—965.

Moti Ram— 398, 749.

Motizuddin — 663.

Moul Buksha— 504.

Mouli Durzi v. Nauraugi Lai — 378, 379.
Mousi Lai — 402.

Movila Kurmiah — 537.

Moyna Bibi v. Banka Behari — 653.
Mozuffar Khalifa — 483.

Mrigendra Lai Chatterjee — 757.

Mritunjoy — 329, 332.

Mt. Ada Di— 977.

Mt. Bhagwa Tia — 974.

Mt. Champa Pasem — 643.

Mt. Chubba and others — 670.

Mt. Darkan— 322.

Mt. Daulat Bai — 554.

Mt. Khwet Khye — 170.

Mt. Nandi — 976.

Mt. Shevanti -106.

lvi

THE INDIAN PENAt AODfi

Mt. Snkhia — 553.

Muchi Mian —396.

Muddo Suddan Shaw — 356.

Mugappa— 351.

Muhammad— 378, 353.

Muhammada— 755, 796.

Muhammad Ali — 392.

Muhammad Asham — 737.

Muhammad Ata— 699, 707.

Muhammad Din — 291. 623.

Muhammad Hussain, 14 Ci . L. J. 81—121,
425, 660.

Muhammad Hussain — 122.

Muhammad Ibrahim — 228
Muhammad Ishaq — 340, 344.

Muhammad Jewa v. Wilson — 960.
Muhammad Lcrvai — 177.

Muhammad Mohidin Sail r. Municipal
Commissioners, of the Citv of Madras
—452.

M u hamma d Na zier — 1 03 4 .

Muhammad Shah, P. R. No. 34 of 1918 —
819, 823.

Muhammad Shah, 20 A. 307 — 368.
Mudrapayalagadu — 39.

Muhammad Sher Ali Klian v. Ghasi Ram
—1027.

Muhammad Yar — 556.

Muhammad Yasin — 398, 721.

Muhammad Yunus — 552.

Mukandi Lai — 495.

Mukati Xarasa Reddi — 417.

Mukh Ram — S6.

Mukimuddin — 113.

Mukka Muthirian — 231.

Muktar Ahnnd — 325, 611.

Mukun — 646.

Mukund Babu — 620. 624.

Mukundlal Sircar — 192, 193.

Mukund Ram- 468.

Mula, 2 A. 105-1049.

Mula, 17 A. L. J. 32-312, 315.

Mula— 873.

Mulai Singh — 936.

Mulai Rai — 335.

Mulan Chand — 875.

Mulchand — 27, P. L. R. 74 — 611.

Mulraj 36 P. R. — 330.

Mulchay — 162.

Muli— 411.

Mulla, 37 All. 395—889, 872.

Mulla, 23 A. L. J. 924—793.

Mullampati Narasingham — 641 .

Mullany— 339
Mulliyeera The van — 395.

Mullna — 877.

Mulraj Dhir — 481 .

Mutsankar Harinand Bhat— 837.

Mulua — 2.

Mumfru Choudhnrv— 246.

Mumtaz Ali — 491 .

Munawar — 86.

Munda, (A. 1. R.) J- 23 — 555.

Mundra Gadaha — 123.

Mungal Das — 346.

Mung Po Nyan — 48.

Mannaswaini Xaihar — 774.

Muniandi — 557,

Municipal Commissioners of the Suburbs
of Calcutta v. Mahomed Ali — 455.
Munier — 989.

Muninda Pillai — 871.

Munissami — 636.

Munna Tiwari v. Chandrabali — 461.

Munni Buksh — 353.

Minis hi, 26 A. L. J. 855—875, 886.

Mu ns hi Isser — 314. #

Munster v. Lamb — 1023.

Munton — 346.

Muppan 18 M. 401 — 407.

Murad, 2 L. L. J. 539—300.

Muradi, P. W. R. No. 6 of 1917—830.
Muragappa Naicker — 325.

Muralidhar, P. R. No. 22 of 1887—258.
Muralidhar, (1880) Rat. Unr. Cr. C. 145—
258, 447.

Muralidhar, 38 A. 284—419, 420.
Muralidhar Jevan Das v. Naravan Das,
8 S. L. R. 143—1012.

Murali Pathak — 1020.

Murarji Raghunath — 81 1 .

Murat Singh — 599, 851.

Murphy, 4 Cox. 101 — 781.

Murphy. 2 East. P. C. 949—928.

Murray— 391.

Muruga Gounden — 507.

Murugan — 761.

Musa 22 A. L. J. 522—598.

Musahcr Daudh — 76, 79.

Musai Kamat — 797.

Musai Lai v. Kashi Prasad — 839.

Musa Sekhram — 270.

Musammat Anandi — 119.

,, Begum — 457.

,, Bharam — 590.

,, Bhukan— 97.

,, Bhundea — 669.

Budho— 517.

„ Jeoni — 591.

„ Kesari — 4, 5, 649, 664.

„ Kishen Koer — 17.

„ Mulia — 583.

Niruni — 177.

,, Sardara — 331.

,, Soma — 556.

Musammat Zameran — 350.

Mushtari — 15, 16.

Musst. Bhaktawar — 169, 363/

Must. Zingo — 499.

Mu tall i (A. If R.) L. 253—580.

Muthia Chetty, (1910) M. W. N. 1—385.
Muthia Chetty. 36 M. 392—935.

Muthian — 470.

Muthinalappau — 742.

Muthra v. Rassa — 313.

Muthu Goundan — 313.

Muthu Goundan— (1931) M. W. N. HS-
US, 122.

Muthu Ibrahi — 659.

Mathu Kumarswami Nandar v. Mahommad
—333.

Muthu Kumereswami Pillai — 274.

Muthu Madar Nandan— 542.

Muthuka Nakher — 637.

Muthumalu Goundan — 604.

Muthusami Naidu — 1020, 1028,

TABLE OF CASES

Ivrii

Muthowami— 1 20.

Muttaraman Chetty — 374.

Mutters — 461 .

Mutty Khan Mundloo— 988.

Mutumerih — 459.

Muvala Kondaiya — 513.

Muzhcr Hussain — 342.

Mya Gyok — 844.

Myat Thin— 01#.

Mycock — 649, 655;

Myers — 684.

Mylaporc Hindu Permanment Fund Ltd.

v. The Corporation of Madras — 5.
Mylapore Krishnaswami — 207.

N.

Naba — 665.

Nabi Buksh, 25 C. 416—29, 44, 253, 69*,
708, 746.

Nabibux 52 P. 168 — 44, 177.

Nabin Chandra Banerjee — 121.

Nabin Chunder, 6 \V\ R. 79—95.

Nabin Dome — 138.

Nabodwip Chandra Sarkar — 382.
Nabokishore Chackcrbutty — 331.
Nabokristo Ghosh — 380, 382.

Nabokumar Parnaik — 748, 749, 752.
Nachimuttu — 26.

Nachiappe Udayan — 238.

Naddi Chengadu — 305.

Nadho Mai v. Abdul Haq — 399.

Nafar Chandra Bhattacharjce v. Helal-
uddin Mondal — 859.

Nafar Sheikh — 54.

Nagendra Bhakta — 364.

Nagappa — 95, 698, 702, 7<.*8.

Ngappa The van — 332.

Nagarji u. Trikainji — 993, 1024, 1026.
Nagawa — 96.

Nagendra Bhakta — 364.

Nagendra Lai Chatterjee v. Okhoy
Coomar Shaw — 766, 769.

Nagendra Nath v. Gopal Sardar — 552.
Nagendra Nath Bose — 785.

Nagendra nat h Chakra varty — 7 50 .
Nagendranath Saha — 960.

Nageswar — 745.

Nagli, 27 Cr. L. J. 807—801.

Nag Tun Bhw— 726, 1047.

Naibulla Sheikh — 565.

Naida — 620, 804. •

Najeebut ollah — 914 .

Nalla— 853, 705, 762.

Nallapa Udayan — 858.

Nallaya Pillai v, Rangasami Pillai — 957,
Nalli Narasigadu — 363.

Naloo Patra — 338.

Nana— 812.

Nanalal v. Maung Turn Yan — 763.

Nana Rahim — 89.

Nanakchand — 461, 486.

Nanak Cliand— 461, 486.

Nanhak Sao — 651.

Nandalal, 19 N. L. R. 183—641.

„ P. R. No. 36 of 1888—823.

„ Singh— 171.

Nandamuri Ananadayya — 384.

N an y appago wda Shiddongowda — 863.

Nandi— 977.

Nandipati Ramareddi — 880.

Nandkishore, 6 A. 248 — 573.

Nandkishorc, ID A. 305—399, 400.

Nan E— 66.

Nanhak Sao — 651.

Nanhi Bahu — 756.

Nanhu Singh — 348

Nanhua Dhimar — 657, 658, 670.

Nanjunda — 383, 385.

Nanku — 526.

Nanni — 457.

Nanshe Ali Khan — 698, 707, 710.
Nantamram Uttamram — 27.

Nanu Singh — 368.

Narain — 225, 612.

41 A. 352 — 11.

Acharji — 369.

Adhikari — 478.

Bhai Bula Bhai— 397.

Das— 152, 153, 154, 155, 157.

Das Tewari v. Rudra Dat Bhat —
985.

Narayana Aiyar — 921, 933.

Naramban — 736, 739.

Naran Chand — 429.

Naran Takath Avullah v. Parakhal Manum
101 , 102 .

Narasamma 492.

Narasinha Chinalman Kelker — 421.
Narasinha Das Maruari — 755.

Narasinha Narain Chandur — 184.

Narayan — 283, 904.

Narainsami v. Rangasami — 6.

Narayan Ayayer v. Vellachai Ambalam —
496.

Narayan as wami Aiyar — 353.

Narayan Babaji — 401, 402.

Narayan Dhonde v. Risbud — 917.

Narayan Krishna — 852.

Narayan Nandan v. Pallaniappa Nandan —
350.

Narayan Pusi — 602.

Narayan Reddi — 300.

Narbada Prasad — 284.

Narbadcswar — 642.

Narendra v. Kamalbashiui — 4.

Nareshi Singh— 142, 143, 145, 148, 256.
Naro Gopal — 912.

Narriet — 537.

Narsang Pathabai— 142, 146, 148, 157, 228,
Narshi — 875.

Nar Singh— 615, 616.

Narsu — 847.

Narul Hussain — 77 2.

Narumal Khemchand v. The Bombay
Company, Ltd. — 952.

Nash, 2 Dearslcys C. C. R. 650 — 901.

Nash, 2 Den. C. C. 493—904.

Nasimuddin — 38.

Nasir Khan Mistri v. Fvaz Hossain — 249,
759.

Nassib Choudhury v. Naunoo Ch iudhury —
700.

Nasui — 325.

Natabar Haidar— 551, 563.

Nataraja Pillai — 26.

Nataraja Mudaliar— 706.

Nataram— 120.

tviii

THE INDIAN PENAL CODE

Natcsa Mudalira — 0.

Natesa Padavachi — 654.

Nathurain Uttamram — 27.

Natha — 686.

Natha Laha — 52.

Natha Reva — 484.

Nathe Lalla— 478, 479.

Nathu, 15 A. 19—235, 250.

Nathulal Bapaji — 947.

Nathu Mula — 70.

Nathu Sheik — 348.

National Bank of Australia v. Morris — 34.
Nattava Paran Kissan — 350.

Nattekalappe — 531 .

Natwari — 4.

Naurang — 988, 989.

Naushe Ali Khan — 101, 102, 698.
Navalmal — 376.

Nawab — 249 558.

Nawab (A. I. R) L. 277—248.

Nawab Zainul Abdin Khan v. Muhammad
Asgar Ali Khan — 371.

Nayamuddin — 543.

Nay an Sukh Mether — 85 86.

Nazimuddin — 26, 139.

Nazir Ahmed — 161, 609, 1025.

Nazir Khan— 974, 984, 986.

Nazu Fakir — 255.

Negus, 42 L. J. M. C. 62—715.

Negus, L. R. 2 C. C. R. 34—781.

Neil— 458, 471.

Nemdhari Singh — 240, 255.

Nemi Chand v C W Wallace — 957
Naurjan — 677, 678.

Nga Ahmed — 161.

Nga Aung Dwe — 643.

Nga Ba Gyaw — 124.

Nga Ba Shein — 89.

Nga Ba Thin, 1 Bur L. J. 10—562.

Nga Ba Thin, 4 U. B. R. 174—30.

Nga Bo Gvi — 348.

Nga E— 41, 42.

Nga Cho— 479.

Nga Huin — 277.

Nga 1—745.

Nga Kan Hla — 562.

Nga Kaung Nyum — 733.

Nga Khan — 558.

Nga Khan Tha— 273, 275, 723.

Nga Kyaw Dun — 150.

Nga Kyaw Zan — 151.

Nga Min Po — 512.

Nga Mu — 738.

Nga Mya, 4 Bur. L. T. 14 — 815.

Nga Mya, 8 I3ur. L. T. 220— 122.

Nga Myat Tha — 99.

Nga Nan Da — 145, 148.

Nga Nen — 665.

Nga Nga— 665, 667.

Nga Nita — 667.

Nga On Thin— 998, 1007.

Nga Pye — 66.

Nga Po Chet— 559.

Nga Po Gala — 479.

Nga Po Kyaw — 806.

Nga Po Lu — 559.

Nga Po Lwin — 479, 366.

Nga Po Ngwe — 416.

Nga Po Saw, 2 Bur. L. J. 99—564-

Nga Po Saw, (1897-1901) U. B. R. 328—
665.

Nga Po Seik— 767.

Nga Po Tha— 515, 631.

Nga Po. That — 730
Nga Po Tok — 869.

Nga Po Yan v. Mohr. Bros. & Co. Ltd.—
830.

Nga Po Ywet — 767.

Nga Pu— 746.

Nga Pyan — 121.

Nga San Myin — 122.

Nga San Nyne — 429.

Nga San Dun — 75.

Nga Sein Po— 690.

Nga Shan — 392.

Nga Shan Gale — 718.

Nga Shwe Hla — 561.

Nga Shwe Myo — 392.

Nga Shwe Po — 673.

Nga Sun Dun — 75.

Nga San Myin — 121.

Nga Tha Sin — 31.

Nga Tha Kin — 562.

Nga Thaku — 615.

Nga Thaung — 714.

Nga Thwe — 541.

Nga Tin Gyi — 665.

Nga To Hilla — 655.

Nga Tun Baw — 122. 726, 1047.

Nga Tun Nyein — 538.

Nga Waik— 580.

Nga Ya Po — 479.

Ngwka — 479.

Niader — 987.

Niader Mai — 463.

Niaz Ali, 5 A. 177—310, 347, 348, 447.
Niaz Ali, (1904) A. W. N. 2—119.

Nibaran Chandra Bhattacharjce — 721.
Nibaran Chandra Roy — 547.

Nidamarti Nagabhusanam — 472, 481, 500,
571, 574, 616, 617.

Niddha— 580.

Nihal— 760, 794.

Nijamali — 906.

Nikka Jogi — 225.

Nikunja Behari Sen v. Harendra Chandra
Sinha — 1025.

Nilkanta — 198.

Nilmadhab Sircar — 526.

Nilmony Nag v. Durgapada — 36, 951.
Nilmoney Pokdar — 77, 83, 240, 603,

604.

Nimai Chattoraj — 172, 651, 657.

Nimchand Mukherjee — 171, 340, 354, 608.
Ningappa Rayappa Ghotadki — 314.
Nirichan— 70, 75, 76, 80.

Nirmal Chandra De — 188, 189.

Nirmal Das — 797.

Nirmal Kanto Roy — 170.

Nirmal Singh — 011.

Nirsu Narain Singh — 1021, 1024, 1026.
Nisar Mohammad Khan — 460.

Nishi Kanta Banikya — 560.

Nishl Kanto Pal— 325,

Nithal — 794.

Nittar Mundle — 944.

Nizam Din — 720,

Nizam uddin — ?5. ,

TABLE OF CASES

lix

Nabin Chandra — 838, 839.

Nobin Chandra Bancrji — 121.

Nobin Chandra Haider — 698.

Nobin Chandra Madduk — 839.

Nobin Chandra Sircar — 763.

Nobin Chunder — 95.

Nobo Kristo Ghose — 376, 380, 382.

Nobo Pullee — 79, 80.

Nokole Behara — 705, 706.

Nokul Nushyo— 530.

Noor Mahammad Cassum v. Kaikhosru
Manekjee — 918.

Noor Mahomed Suleman — 407, 477.
Noor Mahomed — 5.

Noorul Husain v. Fabre Tau very — 168.
Noujan — 80.

Nowrangi Singh — 611, 640.

Now Tara Singh — 705.

Nrisingha Kumar Mukherjee v. Kumu-
dendu Mukerjee — 817, 841.

Nujum Ali — 936.

Nulliyeera Thevan — 392.

Nuna — 644, 1052.

Nunha Panakulu v. Ravalu Subba Rao —
27.

Nund Mohan Sirkar — 887.

Nurdad — 743.

Nura — 559.

Nurkhan — 737.

Nur Mohammad Khan (1910) A. W. N.

187, 373.

Nurodin — 451.

Nussurooddeen Shazwal — 309.

Nya Myal Kaing — 561.

Nya Pan H. Vaing— 883.

O.

Oates — 346.

Obammal — 856.

Obbaya — 800. 841.

Obhoy Ch. Chakra vorty — 278.

O’Brien — 571, 595, 603.

O'Connel— 188, 191, 203.

Odda Kolau Thau — 299.

Oddy — 799.

Offord — 115.

Ohibhusan Adhikari — 696.

Ojha— 245. *

Olifier— 97, 650, 655.

Oliphant — 948 984.

Oliver v. North Eastern Railway — 460.
Olpadavala v. Wright — 966.

Ollis— 33.

Om Prokash — 205.

Oneby — 533.

Onkar — 1038.

Onooram — 485, 486.

Oodun Lai — 357.

Orr Erving v. Johnson — 966.

Ooram Sangara — 60.

Orton — 125.

Osman Sardar — 188.

Osmer — 225.

Otaruddin v. Kafiluddi Manjhi — 730.

Oudh Bar Association, Lucknow — 183,
Owen Owens — 854.

P.

P. J. Money— 300.

P. K. Chakra vorty — 262, 2G3, 264.

P. Kanda Swami Mudaliar — 462.

Pacha Sahib — 705.

Pachai Goundan — 145, 148.

Pack ianat han — 8 1 7 .

Packiriya v. Muthu Krislinan — 844.

Padala Vcnkataswami — 917, 1048.

Padan Singh — 179, 338, 353:

Padamanbha Panjikanna — 173, 179.

Pad ana th Singh v. Ratan Singh — 346, 351.
Padati Charan Rcddi — 723.

Padmavati- -677.

Page — 465.

Pahlwan — 987.

Paimbar Baksh — 417.

Paimulla 796, 892.

Pakir Mahomed — 957, 959.

Pakiri Marakayar — 306.

Pakkirswami, 57, M. L. J. 548—892.

Palani — 351 .

Palani Asari — 1030.

Palani Gounden, 41 M. 547 — 510, 524, 608.
Palani Gounden, 1 Weir 523 — 875.

Palany Chetty — 351.

Palin — 946.

Pallikudathan v. Samndi Goundan — 315.
Palmer 2 K. B. 29— 528, 534.

Pal Singh— 123, 124.

Pampappa — 312, 3/9.

Panaullah — 306, 307.

Panchananda Tam biram — 116.

Panchanan Bose — 246.

Panchi Mandar — 842.

Panchkauri— 142, 148, 228, 229, 244, 248.
Panchkauri Dutt — 532, 554.

Pandaya Nayak — 304.

Pandita v. Rahimulla — 698, 700.

Pa nd ity a Mahar — 4 7 0 .

Pandlick Krishna Rai — 324.

Pandu — 484.

Pandyaram Sastrulu — 654.

Panjikanna Roghya v. Negya — 179.
Pannalal — 317.

Panthan Venkaya — 291.

Papa Naiken — 420.

Parabu — 383.

Parakkal Mamu Narantakath Avallah v.

Parakhal Manu — 975.

Parakushiyil Ahainmad — 226, 236.

Parama Shiva Mopan — 330.

Paramoshwar Din — 229.

Parameshwar Dutt — 11, 714, 833.
Parameshwar Lai — 385.

Parameshwar Lall Mitter — 880.
Paramoshwar Rai — 330, 331.

Parameshwar Singh, 38 C. 180 — 851.
Parameshwar i Subbi — 677.

Paranga — 301.

Paran Kussam Narasaya Pontulu v.

Stuart— 100, 623.

Paran Suka — 152.

tx

THE INDIAN PESAl CODE

Parashr&m Yueshvant — 489.

Paras Ram Dube — 114, 683.

Parbati, 41 A. 311—993, 994.

Parbati Charan Chattorjec — 182.

Parbati Charan Aich, 16 C. 9 — 331.
Parbhudas — 34, 942.

Parbliu Dosadh— 139, 147.

Parbutty Charan Chakrabartv — 758, 761.
Parccll v. Sowler, 2 C. P. D. 215—1012.
Parcell v. Sowler, 1 C. P. D. 781— 1009.

Paresh Nath — 148.

Pareshnath Sarkar— 142, 229, 233, 238.
Parimal Chatterjee — 183.

Parlement Beige — 8.

Parma Singh — 132, 233.

Parmesh war Ahir — 1 0 .

Parmeshar Dat — 27.

Paramcshar Lai — 37 6, 385.

Parmeswar Singh — 245 .

Parnell— 187.

Parshadi, 27 A. L. J. 244—560.

Parshadi Pasi v. Baljit Singh — 146.
Parsiddhan Singh — 489.

Parsi Hazra v . Bandhi Dhanuk — 381.
Parsons v. Gillespie — 952.

Partapa — 85.

Partridge — 800.

Parushulla Mundal v. Kharoo Mundal —
433.

Parvatanene Kamayya — 35 i .

Parvati Mannar — 997.

Parwari — 1027.

Pasavathia Pillai — 639.

Pashubin Urlavan — 322, 323, 324.
Pashupat v. Rambhajan — 139.

Pashupulcti Ramdoss — 283.

Patel Mulji Bhai Hirabhai — 925, 932.
Pateswari Prasad — 535.

Patha — 470.

Patilbuva — 178.

Patrick Kelly — 178.

Pattam — 618.

Pattikadam — 605.

Paul De FIcnder — 799.

Paul Cruz — 1038.

Paulin — 945.

Paun Pandc— 168.

Pavallimankhan Narayan Nambudripad —
307.

Paynton — 709.

Peary Mohan Sircar — 227.

Pease — 460.

Pedala Ven katas wami — 917, 1048.

Pedda Anjini — 989.

Pedda Hempayya — 250.

Pedda Molla Reddi — 496.

Pedda Tirumalingadu — 560.

Pedba Reddi v. Veratareddi — 1027.

Pfcdley — 456.

Peera — 750.

Peera Raju — 916, 921.

Peers v. Coldwill — 495.

Pelkoo Nushyo — 153, 264.

Pellemuthu Thevan— 223, 224.

Pemantle — 652.

Pembliton— 401.

Penny v. Henson — 811.

Penny v. Wimbledon — 474.

Penson — 975.

Pcnumessa Thirumal Raju — 231.

Pera Subba Naidu — 25, 273.

Peria Ponuswami Goundan — 020.

Periana Malawaran — 301. •

Periaswami Kotaswami Taver — 999.
Permanand Brahmachari — 313.

Perry v. Truefitt — 951, 952.

Persad — 77.

Perumal Naickcn — 545.

Perumal Naik — 378.

Pestonji Dinshaw — 168.

Peter Rinaldi — 904.

Petei Rosinski — 644.

Peterson — 1048.

Petta Gazi — 556.

Phanindra Nath Mitter — 206.
Parmaceutical Society v. London and
Provincial Supply Association — 20, 468.
Pharmaceutical Society v. White— 468.
Phcmji Kanji v. Mt. Jeabhai — 416.

Phiez Ma ham mad — 1045.

Phikku— 984.

Philip Spratt No. 1 — 210.

„ „ No. 2—209.

,, No. 3— 209.

Phillips, 3 Camp. 77 — 655.

8C.& P. 736—114, 683.

„ 3 Cox. 88—932.

,, v. Janeson — 988.

Phomonce Ahum — 513, 645.

Phoolchand Brojabashee — 303, 304.
Phuelel— 351.

Phul Singh— 707.

Phulchand Dube — 755, 791.

Piare — 529.

Piarelal — 401 .

Pichitlal Misser — 323.

Pickard v. Smith — 474.

Pidde Enu Mandu Garu — 754.

Pidripolu Venkata Subba Rao — 768.
Pierce— 760.

Piflard and Captain Francis — 417.

Pika Bewa— 97, 572, 617.

Pillagan — 474.

Pillala— 377.

Pira —

Pirbhu Dial— 926, 927, 944.

Pir Buksh, 24 Cr. L. J. 703—751.

Pir Buksh, 13 Cr. L. J. 28—798.

Pir Mahammed — 580.

Pirtai— 17.

Piru Ram— 241, 250, 253, 604.

Piru Rama Havildar — 76, 83.

Pitamber Singh— 974, 984, 986.

Pitamlal— 537.

Pitam Rai— 383, 385.

Pitam Singh — 847.

Pittard v . Oliver — 1030.

Pluckwell v. Wilson — 107.

Plummer — 163.

Plymouth — 288.

Pochun Chung — 81.

Po Hau — 50.

Pokot Kotu— 324, 325, 612.

Po Lan— 81, 725.

Po Myaing— 745.

Pomplam v. Picklenru— 1013.

TABLE OF CASES

lxi

Ponit Singh— 316.

Ponnamal — 50.

Ponnia Rowther — 734.

Ponurangam — 707.

Ponnuswanti, 8 R. 268 — 371.

Poomalal Udayan — 612, 640.

Poonai Pattern a, 131, 515, 544.

Poppam v. Pickburn --1013.

Poras Ram Du bo— 114.

Portugal — 15.

Poshoo — 525.

Poshubin Dhamhaji Patil -322, 413.

Po So — 89.

Po Thaung — 16.

P. O. Thaung (1927) 6 R. 48—335.

Potu— 122.

Pourangam — 67 4.

Power — 903.

Po Win — 745.

Prabhat Chandra Adhikari — 421.

Prabhat Pheri — 236.

Phabhat Ranjan Barat v. Urn a Sunkcr
Chatterjee — 918, 925.

Prabhu, 6 Cr. L. J 141—553.

Prabhudas — 942.

Prabhusankar— -

^Prafulla Kumra Bose — 663, 667.

Prafulla Kumar Gho.se v. Harcndra Nath
Chatterjee — 1 03 1 .

Prafulla Chandra Kharglioria — 947.
Prafulla Kumar Sarkar — 548.

Prafulla Kumar Roy Choudhury — 191, 192.
Prag Das Bhargava — 832.

Prag Das v. Daulat Ram — 828.

Prag Dat— 227, 228, 247, 314.

Prag Dat Tiwari — 379.

Prahlad Berman — 974, 986.

Prakash Chandra Sirkar — 301.

Praksh Chandra Kundu — 240.

Pramatha Nath Barat v. P. C. Laliiri— 98,
620, 624.

Pramathanath Mukliopadhaya — 105, 1029.
Pramatha Nath Roy Choudhury — 267.
Prankhang — 141, 145, 146.

Pran Kissen Bid— 377, 381, 385.

Pran Krishna Sarma — 172, 633.

Pran Kris to Chandtr — 869.

Prannath Saha — 861.

Prasanno Kumar Patra v. Udov Sant —
698, 70%.

Pratapa — 530.

Pratap Chandra Guha Rov — 1002, 1003,
1029, 1033. 1

Prayag Gope — 83, 240, 712.

Prayag Singh — 265.

Prayag Singh v. Morgan — 869, 871.

Prem, 27 A. L J 397—892.

Proma Bhika — 822.

Premlal Mullick — 5

Premanando v. Brindaban- 873, 880, 890,
1045.

Preman, 26 P. L. R. 363—541.

Premchand Dowlat Ram — 303.

Prem Narain — 666, 777.

Premsook Das — 425.

Preolal Mukherji— 145, 639.

Preonath Banerjce — 30.

Preonath Choudhury— 137, 760, 782-
Preonath Day v. Gobordhone Mai — 455.

Price — 459.

Prince— 97, 649, 655, 667.

Pritai — 10.

Pritchand, 30 Cr. L. J. 18—785. 786.
Priyanath Gupta v. Lai Jhi Choudhury —
1037.

Probodh Chandra Bose v. Corporation of
Calcutta — 50, 172.

Prodyot Kumar Bhatterjcc — 112.
Prodhom Ahir — 346.

Projapat Jha — 329, 331.

Prokash Chunder Dass — 417.

Promotha Nath Roy — 267, 777.

Prosunno Bose — 923.

Protap Chowkidar— *96, 539.

Proud, 9 Cox. 22—717.

Proud, 31 L. j. M. C. 71—781.

Provath Ranajn Barat v. Umasunkcr
Bhattocharjce — 349.

Public Prosecutor v. Anon Naidu — 27, 638.
Public Prosecutor v. Budipati — 119.

Public Prose cutor v. Imanda Ramaswami
—704.

Public Prosccutoi y. Kannamal — 681.
Public Prosecutor t«. Kata Prakas — 313,
317.

Public Prosecutor v. Kolargaret — 581.
Public Prosecutor b. Kaudaswatni The van
919.

Public Prosecutor v. Madhava Bhunjo
Santo — 325.

Public Prosecutor v. Padimony Beary —
774, 778.

Public Prosecutor v. Paramaddi— 557, 561.
Public Prosecutor v. Rajammai — 54, 679.
Public Prosecutor u. Ramrajie Vankat-
appayya — 939.

Public Prosecutor v. Sanku Scthiah — 508.
Public Prosecutor v. Satya Narayana- — 225.
Public Prosecutor v . Sennimalai Goundcn
—413.

Public Prosecutor v. Sheikh Ahmad — 621.
Public Prosecutor v. Suravanaravana —
527, 545.

Public Prosecutor v. Venkatamma — 366.
Pubon— 88, 89.

Puddomonee — 822.

Pugh v. Ashutosh Sen — 6.

Pukotkotee Ram Iiorakh — 144, 324, 640.
Pulimatho — 148.

Pulin Behari Da.s — 191, 193, 194, 199.
Pulin Bchary Nandi— 617, 618.

Pullman v. Hill — 998.

Punamali Nandan — 298.

Punamchand Maniklal — 26.

Punja Gani — 17.

Punja— 814.

Pnnja Godad — 853.

Punni Behogi- 470.

Punni Basora — 229.

Pnnji Kanna Roghyay. Nagy a — 179.
Puran — 151, 772.

Purendar Jha v. Nanulla Jha — 338.
Purmanand Dhulia — 609.

Purna Chandra Dutta v. Sheikh Bhullu —
349.

Purna Chandra v. Hachcmali — 171, 407.
Puma Chandra Ghose — 1009, 1029.
Puroshattam Ishwar Amin — 351, 354.

lxii

THE INDIAN PENAL CODE

Puroshattam v. Navnitlal— 18.
Puroshottama v. Municipal Council of
Bcllary — 642.

Puroshottam Das Ranchodas — 1025.
Puroshotum Vanumali— 325.

Pnrsoram Das — 1026,

Pursuram Dass, 7 W, R. 42 — 120, 997.
Purusoola Sikdar — 555.

Puscal v. Raj Kishore — 776
Pusu — 143.

Pyoyi — 782.

Q.

Quadir Baksh— 36, 424.

R.

R. v. Allen — 7.

R v. Chill— 810.

R. v . Bramwell — 290.

R. v. Byrne — 424.

R. v. Levey — 425.

R. v. Hall— 703.

R. v. Huggins— 7.

R. v. Kerr — 759.

R. v. Kevn — 12.

R. v. Lobbett — 28.

R. v. Ollis — 32.

R. v. Pembliton — 401.

R. v. Stephens — 7.

R. v. Wade— 703.

R. v. White— 70 5.

R. v. Wilson — 424.

R. Dovicc v. O. R. Shannslaw— 1022.

R. M. P. A. Annamali Chctti v. Basch —
784, 789.

R. W. Valiant v. Eleazar — 659.

Rabilochan v. Puma Chandra Dey — 874.
Rabindra Nath Dhar — 549.

Rachappa, 26 Bom. L. R. 968 -496.
Rachappa, 12 Bom. L. R 229—319.

Radha Kishan, 5 A. 36—379.

Radha Krishna Joshi — 955.

Radha Krishna v. Kissotilal — 954
Radha Madhab Paikra — 703.

Radha Nath Choudhury— 265, 268.

Radha Raman Saha — 268.

Radha Ranga — 592.

Radkia Badra — 594.

Raffi Raut— 314.

Raggha — 554, 555.

Raghavendra v. Kashinath Bhat — 372.
Ragho Singh — 224, 231.

Raghoobuns Sahav v. Kokil Singh — 23.
Raghubar Doyal, 53 A. 417 — 1037.
Raghubir Saran v. Kurukhetra Motor
Service Co. — 825, 829.

Raghunath, 47 A. 205 — 330.

Raghunath Venaik Dhulkar — 258.
Raghuputhia Iyer v. Nrayan Goundan —
848.

Raghuvalu Naidu v. Sundarmurti Mudalli
954, 955, 958.

Raghunandan Prasad— 852, 853.
Raghunandan Puttranuvecs — 942.

Raghu Nath Das, 5 Pat. L. J. 129 — 102,

161, 162.

Raghunath Das, 20 C. 413 — 933.

Raghu Singh — 890.

Raghu To war i — 312, 314, 382.

Raharn Ali — 414.

Rahamatali— 13.

Rahimatalli Mahomed Ali Mollu — 51, 261.
Rahim Baksh — 1039.

Rahimiatulla — 77.

Rahim Khan — 531.

Rahim Mian — 471.

Rahimuddi v. Asgarali — 232.

Rahman Khan — 729.

Rahman, A. I. R. (1930) L. 344—530, 533,
610.

Rahman Shah — 530.

Rahmat— 526.

Raily — 924.

Raja Khan — 166.

Rajani Kanta Kocr — 547.

Rajani Kanta Pal — 411, 412, 612.

Rajani Kan to Saha — 412, 642.

Raja of Coorg v. East India Co. — 104.
Rajappa Ramappa Kalal — 359.

Raja Ram Bhavanisankar— 343.

Raja Ram Singh — 997.

Raja Sahaib — 450.

Raja Saligram v. Sccy. of State for India
—104.

Raj Bahadur — 17.

Raj Begum v. Nabab Roja Hossain — 653.
Raj Coomar Singh— 225, 228, 846.
Rajondra Nath Roy — 758.

Raj i— 457.

Raj Kishore v. Joy Kishoro — 771.

Raj Kristo — 158.

Raj Krisdito Biswas — 285.

Raj Kumar Banerjec — 816.

Raj Kumar Dutt v. Tothel Sijo — 12.
Rajmal v. Harnam Singh — 2.

Rajoo Chase — 525, 540.

Raj Pal, (1922) 3 L. 405—208.

Raj Paul— 262, 263, 499.

Rakhal Chandra Biswas — 244, 598.

Rakhal Das Roy v. Kailash Banu — 155.
Rakhal Chandra Das — 189.

Rakhal Chandra Saha v. Damodar — 350.
Rakhal Ch. Saha— 348, 353.

Rakhal Nikari — 651.

Rakhia — 559
Rakhmakom Sadhu — 463.

Rakku— 676.

Rakma — 820, 823.

Rallia — 531.

Rama (1889) Sat. Unr. Cr. C. 484—874.
Rama, A. 136— ~329.

Ramabin Rabhaji — 58.

Ramadhin, 2 A. 139—76, 80, 240.
Ramadhin, 25 A. 129 — 704, 897.

Rama Goundan — 319.

Ramajiroy Jivbaji Roy — 343.

Ramakka — 582, 1048.

Rama Nana— 356, 1006.

Ramanaya Choriar v. Protivati Boyan-
karam — 1006.

Ramanand — 1006.

Ramanandan v. Public Prosecutor — 373.
Ramanath — 291.

Ramanath Kalpahar — 8il, 817, 823.
Raman Behari Das — 786, 942.

Raman Behari Roy— 810, 812, 816.

TABLE OF CASES

lxiii

Ramanandan Prosad Singh — 228, 234.
Ramanna — 678.

Ramannayar v. Subramania — 1024.

Ram Augutha Singh — 77, 240.

Raman Ch£ttiar — 832.

Raman Korvan — 741, 743.

Raman Singh — 225, 611, 630.

Ramanuja Chariar v. Pralhivathi Bay an
Karam— 137, 1006.

Ramappal Hcbara — 935.

Rama Rcddi— 076.

Ramasami, 7 M. 292 — 48, 52.

Ramasami, 12 M. 148 -38, 138, 027.
Ramasami, 30 M. L. J. 18—242.

Rama&ami v. Lakananda — 1000.

Ramasami Goiindan — 418.

Ramasammi, 13 M 131 — 27

Ramasamv — 415

Rama Singh— 514, 574, 605, 745.

Ram Asrc — 558, 005.

Ramaswami (1925) M. \V. N. 606 — 244.
Ramaswami Aiyar, 41 M. 589 — 37, 39, 945.
R a mas wan i Aiyar, 1 Weir 8 — 817.
Ramaswami Aiyar, 44 M 913 — 625
Ramaswami Aiyar, 15 Cr. L j. 290 — 845.
Ramaswami Iyengar — 599.

Ramaswami Konan — 407.

Ramaswami Naidu — 243.

Ramaswami Reddi — 765.

Rama tripat i — 470.

Ram Au tar — 797.

Ramava Channappa — 611, 512.

Ramaya — 773.

Ramaya Naika — 326.

Ram Bais Rai — 755.

Ram Baran — 732.

Rambharathi Hirabharathi — 14, 317, 383.
Ram Bose — 576.

Rambilas, 38 M. 639—766, 774, 775, 778.
Rambroso — 312, o 13.

Ram Chand — 300.

Ram Chand v. Jai Dial — 812, 835.

Ram Chand v. Joylal — 823.

Ram Chandra, 31 B. 204 — 312.

Ram Chandra (1884) Rat. Unr. Cr. C.
201—400.

Ramchandra, A. 1. R. (1930) L. 371—206,
207.

Ram Chandra, 12 A. L. J. 285—656.

Ram Chandra Roy — 184, 233.

Ramchandra De v. Gajondranath Das —
854. #

Ram Chandra Bhikaji Mahavir — 719.
Ramchandra De — 834.

Ram Chandra Ganesh — 775.

Ram Chandra Narayan Sastri — 330, 332.
Ram Chandra Modak — 22.

Ram Chandra Narayan — 208, 236.

Ram Chandrappa — 1 8.

Ram ChandraSahai — 72 1 .

Ram Chandriah— 273.

Ram Charan v. Mst. Gopi — 657.

Ram Charan Kairee — 890, 891.

Ramcharan Saha v . Haji Mia Haji
Abdulla— 801.

Ram Charitter Singh — 34, 969.

Ramdai — 677.

Ram Das v. Gangaram — 312.
RamdasSingh — 331 .

Ramdayal, 46 All. 94 — 466.

Raradayal, 38 A. 40 — 698, 893.

Ram Doyal Mehta — 835.

Ram Dei — 1 8 A11 350—657, 650..

Ramdhan Dey — 787.

Ramdhari Singh — 347.

Ramdhial — 78, 241.

Ram Dial— 164.

Ramdoyal — 89.

Ramdoyal v. Mahatab Singh — 309, 322.
Ram Dyai Mundlc— 868, 873, 880.

Ram Ghulam Singh — 323, 929.

Ramjag Ahir— 548.

Ramos liar — 862.

Rameshar Rai, 1 A 37. 9 — 349, 807.
Ramesh Chandra Bancrjee — 578, 746,

747.

Ramesh Chandra Das — 344.

Ramesh Chandra Sanya 1 v. Hira Mundle —
498, 705, 760, 856.

Ram Ghulam Singh — 323, 929.
Ramcshwar Singh — 181, 277.

Rameswami Miulaliar — 495.

Ram Gocnka v. Narayan Das Chandra —
333.

Ramgopal Dhar — 917, 921.

Ram gopal Daw — 330 .

Ram Harakh — 144.

Ram Harakh Pathak — 945.

Ramimat — 390.

Raminihi — 397.

Ramjag Ahir — 542.

Rainji Rai — 706.

Ramjirav Jivajirav — 26.

Raniji Sajavarav — 351.

Ram Khclawan Singh — 139, 149, 229.

Ram Khilawan — 338, 363.

Ramkirshna — 7 61 .

Ram Krishna Biswas v. Mahendra Nath
Maz u md ar — 65.

Ram Krishna Das — 27, 275.

Ram Krishna Yeshovant — 312.
Ramkrishna v. Palaniyadi — 857.

Ram Krishna Singh — 844.

Ram Kumar — 672, 673.

Ram Kumavi — 976.

Ramlal — 23.

Ramlala— 619, 621.

Ramlal Singh, 22 \V. R. 51 — 149, 153, 155.
Ramlal Singh, 37 C. 194—243.

Ramlal Singh v. Hari Charan Ahir— 700.
Ramlo — 102.

Ramloclian Sircar — 257, 265.

Ram Manik Saha v. Brindaban — 768.

Ram Nandun Prosad Singh — 228.

Ram Narayan Sarma v. Parswanath Sen —
27, 721.'

Ramnath Rai — 241.

Ram Nath— 164, 166, 291, 293.

Ram Naresh Rai — 391.

Ramnath Sarma Biswas — 181.

Ram Nowaz — 47, 509.

Rain Nhanu — 697.

Ram Panda — 168.

Ram Parshad — 361.

Ram Parshad — 801.

Ram Pcrshad, 35 A. 58—361.

Ram Pershad Singh, 30 C. 231 — 775.

Ram Partab, 6A. 121—78, 80, 83. 340.

lxiv

THE INDIAN PENAL CODE

Ramprasad. 1 Pat. 753 — 253.

Ram Prasad Maity — 1)3(5.

Ram Prosad, 33 A. 773—504. 869.

Ram Prosad. 17 C. W. N. 370—376. 377.
385.

Ramprosad Mahton — 148, 151.

Ram Raju, (1930) M. W. N. 909 — 849.

Ram Raju v. Tirapatraju — 841.

Ram Raju Tevan — 255.

Ramrang — 870

Ramranjan Roy — 178, 552, 002, 737.

Ram Roa Burde — 191.

Ram Rao Guraro — 382.

Ramratan — 29.

Raxh Ratan Chinilal — 787.

Ramratan Sukul— 090.

Ram Rcwaz — 360.

Ram Ruchca Singh -305, 547, 555.

Ram Sagar — 737.

Ram Sahav Bhur — 121, 123.

Ram Sahav Ram— 225, 020.

Ram Sakai Singh — 099.

RamSaran, A. I. K. (1923) Lah. 620—
068, 835.

Ram Saran, 4 N. W. P. H. C. R. 46—1048,
1049, 1052. 1054.

Ram Saran (1906) P. R. No. 12 — 872.

Ram Saran, 5 A. 7 — 300.

Ram Saran, 24 W R. 45—413.

Ram Saran (1930) A L. J. 1113—668.

Ram Saran, P. W. R. No. 27 of 1907—302.
Ram Saran Das v. Raghwat Prosad— 290.
Ram Saran Tewary — 407.

Rainsary Ahir — 242, 244, 253, 354.

Ram Sarnp, 7 A. 757 — 77, 604, 739.

Ram Sarup, 36 A. 474 — 870.

Ram Sarup, 19 Cr. L. J. 236 — 910.

Ram Sarup, 9 P. 606 — 274.

Ram Sarup Rai — 604, GO 5.

Ramshebak Lai v. Muneswar Singh —

1033.

Ram Soondar Poddar — 787.

Ram Subhag Singh — 5.

Ram Sukh— 271,598.

Ram Sundar Das — 1 16.

Ram Sunder — 651, 657.

Ram Sundar Isser — 253.

Ram Tahal Kahar — 532.

Ramudu Iyer — 795, 801.

Ramzan, 7 A. 461 — 502.

Ramzan, (1918) P. R. No. 20—120.
Ramzan, (1907) P. W. R. No. 27—302.
Ramjani — 140. 151.

Ranchod Sursang — 45, 578, 882.
Ranchoddas Xagardas — 938.

Randhir Singh — 516, 595.

Rangasami Naidu— 282.

Rangel— 1040.

Rangeswamy, 6 R. 54 — 700.

Rangaswami Ayyangcr, (1888) 1 Weir

466—787, 788.

Rangaswami Chettyer v Maung Po Ku —
911, 920.

Rangaswami Goundan — 394, 700.
Rangaswami Konan— 407.

Rangolal Singh — 463.

Rango Timaji— 34, 364, 367, 628, 806, 807,
939. 971.

Rannum, 7 L. 84—862.

Raoji Taju — 346.

Rapier v. London Tramway Co. —456
Rappel — 66.

Rasai Mia— 115, 116.

Rasammal — 563. •

Rashbehari Das — 31, 32, 789, 904, 905,
908, 948, 949.

Rashidazzaman — 733, 736, 743.

Rasool Khan — 956.

Rasul Khan, 44 C. L. J. 205 — 794.
Ratanmcm Dey —277.

Rata nraobi n Ma hade vra o — 330 .

Ratha Kishen — 6.

Rati Jha— 931. 934, 935.

Rati Ram— 668, 987.

Ratna Mudali, 10 M. 126—498, 504, 612.
Ravaji — 802.

Ravishankcr Jagjivan — 699, 700.

Rawlings v. Till — 634.

Rayan Kutti— 375. 383. 384.
Rayapadavaclii — 30, 872, 873, 881, 883, 891.
Reajuddin, 18 C. W. N. 1245—229, 234.
Reasuddin — 254.

Reave — 731.

Reazoodeen — 320.

Reddawav v. Bentham, (1892) 2 Q. B. 639 —
952 953

Rcddaway v. Bentham, (1896) A. C. 199 —
952

Redford— 433.

Redman — 723.

Reed — 461 .

Regina Guha — 20, 21.

Re go Monto Poulo — 12.

Regas Kay — 974.

Regula— 156, 227.

Rehana and Tanji — 870, 882.

Rekha Rai— 651.

Rov Singh — 844.

Rewa Goa l lah — 349.

Rhodes— 33. 821.

Riasat Ali— 908, 1049, 1050, 1051, 1052.
Rice — 461.

Rich v. Picrpont — 127.

Richard Bailey — 95.

Richard Hampton — 915.

Richard Jeans — 854.

Richards, 1 F. and F. 87 — 120.

Richards, 11 Cox. 43 — 723.

Ridgolley’s Case— 428, 430. ■

Ring — 193.

Ring, (1857) D. Sc B. 202—1050.

Rino Subedar — 6, 364, 367.

Ritbar Singh — 243, 245, 247.

Robert Harris — 924.

Robert Kirkwood — 916.

Roberts — 425.

Robinson, 4 p. B. D. 284 — 424.

Robinson (1915) 2 K. B. 342—1048.
Robinson, 22 Cr. L. J. 681 — 936.

Roda— 10, 17.

Roebuck — 820.

Rohimuddin — 541, 543.

Roma Sona — 978.

Romesh Chandra v. Hiru Mondal — 846.
Roop Lai Singh — 52,

Roop Narain Dutt — 401.

Rose— 338.

Rose, 15 Cox. C. C. 540— 14L

TABLE OF CASES

Ixv

Rosing— 953.

Ross. J. B. v. Seriven, C. R. — 338.
Rothwdl— 629.

Rouse, 4 Qox. C. C. 7—817.

Roxburgh — 325, 610, 042.

Royal Aquarium and Summer and Winter
Garden Society v. Parkinson — 23, 10C.
Rubbeeoollah — 79. 81.

Ruddock v. Lowe — 127.

Rughoo — 923.

Rumala Nagaya— 844.

Runno Singh v. Kali Churan Misser — 700.
Rupa— 883.

Rupchand Bilaram — 385.

Rup Dev — 18.

Rup Narayan Kurmi — 362, 363.

Ruplal Singh v. Durga Prasad Dubey— 710,
Ruppel t». Poonnusami Tewan — 949, 951,
960.

Rupsir Parhu — 1052.

Ruri — 976.

Rusai Mia — 115.

Russel— 477, 555.

Russon v. Dutton — 461.

Rustomjee — 104.

S.

S. A. Hamid v. Sudhir Mohan Ghosh — 102.
S. C. Nandi v . Corporatin of Calcutta — 27.
S. Kuppuswami Aiyar — 1039.

S. Tirinulla Reddi— 308.

Sabal Singh— 700.

Saban Sahib — 88.

Sabapaii— 904, 905, 948, 949.

Sabid Ali — 252, 256.

Sabir, 22 C. 276—235, 238, 251.

Sabir Hussain— 271.

Sachee — 155.

Sachee Boler— 142, 228.

Sada— 304.

Sadanand Das — 285.

Sadaram — 813 821.

Sadasiv Atmaram — 998.

Sadashib — 632.

Sadashib Singh — 701.

Sadholal— 39, 812, 831.

Sadhu, P. R. No. 19 of 1919—521.

Sadhu Charan Das, 49 C. 600—553.

Sadhu Singh — 689.

Sadler v. Htnlock — 715.

Sadu— 171. •

Sadullah— 249.

Safar Ali — 863.

Safatulla— 571.

Safdar Reza, 49 C. 905-656.

Saganlal — 939.

Sagarmal Agarwalla — 926, 929, 933, 934,
Sagar Singh — 284.

Sahabut Shaikh— 79, 737, 823.

Sahadcb Ahir — 78, 81.

Sahae Rae — 595.

Sahadco Rai— 298.

Saharali Muhumad r. Kazimuddin Ahmad
—654.

Sahdad Khan— 334.

Sahec Singh — 85.

Sahib Das — 700.

Sah^T'&ta — 168.

Sahit Khan— 552.

Sahobava Birappa — 677.

Sahrae— 79, 712, 882.

Sai, 8 L. 896—349.

Saidino — 559.

Said Nur — 42.

Saif Ali — 52.

Saifin Rasul— 26, 275.

Saigal— 205.

Sain Das — 691.

Saiyad Mohomedden — 788
Sajani Kanto Das — 208, 210.

Sakharam — 306 , 307.

Sakharam— 1 4 B. 564—117, 806, 807.
Sakharam Govind — 419, 476.

Sakharam Bhau, 10 B 493 — 82.

Sakharam Ganu — 865.

Sakharam Ramji — 548.

Sakta Singh — 845.

Salam — 738.

Salamat Russusa — 604.

Salgram, 3 0. L J. 493 — 875.

Saligram, 28 A. 312—467.

Sal i gram, (1890) A. W. N. 171—303.

Salik Roy — 52.

Salimaddin, 43 C.L. J 234—410.
Salimullah — 15.

Salt — 93: .

Samachari — 806.

Samand Singh — 514.

Samaruddin, 40 C. 367 — 232, 236.

Samban — 873, 880.

Samba Pillai — 250.

Sambhu Nath v. Ramkamal — 871, 873.
Sambhu Raghu — 977.

Sami — 739.

Sarnia Kaundan — 172
Saminadha Pillai — 459.

Saminanda Pillai — 619.

Saminatha — 364, 390.

Saminatha Thevan, (1912) M. W. N 1125
—313.

Samiruddin, 18 W. R. 25 — 803.
Samiruddin, 24 W. R. 48 — 530, 541.
Samiruddin Sarkar v. Nibaran Chandra
Ghosc — 780.

Samiulla Saheb — 696.

Sampat — 638.

Samsher Khan — 543.

Samsuddi — 709.

Samuel — 268, 623.

Samuel Aron — 268.

Samuel Haines — 879.

Samuel Hall — 879.

Samuel Millard — 932.

Sanalal Lallubhai — 390.

Sanders Clerk v. Grosvenor Mansions Co. —
458.

Sandholal— 834.

Sandford v. Beal — 95.

Sangam Lai — 797.

Sanjiv Rathappa — 908.

Sankara, 6 M. 381 — 1005, 1019, 1037,
1044.

Sankaralinga, 23 M. 544—306, 308, 337.
Sankaralinga Kone — 308, 327.

Sankara Narayan Chetti — 799.

SaQkar Tulsiram v. Kuadlik Anyaba — 982
Santak, (1898) A. W. N. 186—986.

Ixvi

THE INDIAN PENAL CODE

Santa Cruz Morais — 413.

Santi Lai — 345.

Santok Chand— 772, 773, 775.

Sanoo — 135.

Sant Ram v. Diwan Chand — 318.

Sant Singh — 801.

Santhanand v. Basudcvnanda— -417.
Santubin Lakhappa Kore — 495.

San wa Id as — 83 1 .

Sarabdawar Singh — 229.

Sarah Goldthorpo — 593.

Sara j ul Haquc — 702.

Saraswati Devi r. Maharaja Darga — 301.
Sarat Chandra Ghose, 37 C. L. J. 171 — 77.
Sarat Chandra Ghosc, 32 C. 247 — 439.
Sarat Chandra Saha Choudlinry — 265.
Sarat Chandra Son v. Yakub Talukdar —
847, 849.

Sarveswarnath Nath — 145, 321.

Sarch v. Blackburn —484.

Sardar Ahmad -691, 692.

Sardarkhan Jaridkhan — 524, 540.

Sardar Pattu — 299.

Sardar Singh — 845.

Sardhari Lai— 421.

Sarju, 17 Cr. L. J. 75 -699.

Sarju, 7 A L. J. 1150— 366.

Sarmtikh Singh — 13.

Saroda Pros ad Chatterjee — 312.

Sarwan Singh — 394.

Sashibhusan — 15 A. 210 — 28, 815, 817,
901, 909, 934.

Sashibhusau Clin krn vert v — 304.

Sa shibhusan Mukherjee — 138.

Sashibhusan Sarbadhicary — 416, 418.

Sashi Kumar liose — 457.

Satainji Kar — 394.

Satawa — 773.

Satish Chandra Chakrabertv v. Ram
Doyal De— 2, 6, IS, 998, 1019, 1020,
1023, 1026, 1028.

Satish Chandra Rai v. Jadunandan Singh —
612.

Sat Narain, 53 A. 437 — 732.

Sat Narain Tewarv, 710, 712, 785.
Satram Chiha — 68.

Satto Gopal v. Jo go Chamar — 845.

Satya bodha Ram Chandra Adabudhi— 16,
18, 417, 421.

Satya Charan Manna — 792, 800.

Satya Davaswami — 609, 625.

Satya Charan Do — 333.

Satya Pal — 203.

Satyanarain Mahata, 45 C. L. J. 63S — S26.
Satyanarayan Mahata — 193.

Satva Ranjan Bakshi— 22, 202, 205, 207,
208, 209.

Satya Ranjan Bakshi, 56 C. 1090 - -204.
Satvendranath Mazundar — 204, 206, 209.
Sa under ’s Estate-— 37 1 .

Saunders — 461.

Savaldas — 751, 805.

Sayyapu Rcddi Chinnaya Dhora — 61.
Schimdt — 791.

Scofield — 1047.

Scott v. Director of Public Prosecutions —
494, 495.

Scott v. Stan afield — 1023.

Searle— 12ty,

Secretary of State v . Kamachee Boye
Sahaba, 7 M. I. A. 476—104.

Secietary of State for India v. Sri Raju — 9.
Secretary of State v. Vasudeo — 2.

Sed Rasule — 605, 896.

Seeb Churan Huree, 11 W. R. 12 (Cr.)— 79.
791.

Seena M. Haniff & Co v Liptons Ltd. — •
959, 961, 996.

See tul Chandra Bagchi — 274, 278.

Siexo v. Provezende — 951.

Sekundar Mia — 314.

Sejumnl Punam Chand — 349, 353.
Sellaniutlm v. Pallamuthu — 28, 870, 871.
Sena She tty — 644.

Sen go da Gounden — 513.

Senadai Vangnan — 15, 120.

Sengoda Goundan v. Vyapuri Goundan —
918, 926.

Sejimalai — 676.

Senta — 745.

Sesha Ayer v . Venkatasubba Chctty — 291.
Sessions Judge of Gudapat v. Kondate
Obalesu— 918.

Setti Rangavya v. Samappa Scwa Bhogta
54.

Shabaz Khan v. Uinrao Puri — 457.

Shado Lai — 39, 859.

Shali Ahmed — 41,

Shafi Khan — 76.

Sahu— 573.

Shaikh Abdul Kadir— 27.

Shaikh Abdul Kahaman — 13, 15, 16.

Shaikh Chamman — 1055.

Shaikh Dulloo v. Zianah Bebec, 16 VV. R.

17 (Cr.)— 58, 712.

Shaikh Ibrahim— 611.

Shaikh Monceah, 11 VV. R. 38 (Cr.) — 79.
Shaikh Muddim Ally — 79.

Shaikh Nawab Ali — 552.

Shaikh Raju, 9 Bom. 173 -843, 847.

Shakur Mahomed w. Chunder Mohan Saha
—848, 851.

Shailesh Chandra Lahiri v. Nehal Chand
Singli — 324.

Shama—844.

Shania Charan, 8 VV. R. 27 (Cr.) — 397.
Shamcharan Das v. Ashutosh Das — 884.
Shama Charan Das v. Kasi Naik, 23 C.
971-374.

Shamacharan Roy — 399.

Shama Sheikfy — 672.

Shambhu, 3 I'. 410 — 568.

Shambhu Khetri — 513, 568, 673.

Shamjce Nashyo — 88.

Shamlal JaLsam, 4 Bom. L. R. 79 — 620. 626.
Sham Lai! — 314, 378, 382.

Shamlal Loliar — 845.

Shamshcr 13cg — 550.

Shamsoondar v. Manuram — 478.

Shamsul Huq—173, 177.

Shamsunder Bai — 668.

Shamsunder v. Prusti -680.

Shankar, 4 B. 657—216, 903, 948.

Shankar. 5 B. 403-640, 687, 1052.

Shankar Singh — 333.

Shankcr Bai Krishna — 573.

Shanker Bhagawat — 721.

Shankerlal — 1038.

TABLE OF CASES

lxvii

Shanta Ve ran a— 856.

Shantaram Mirjakar—210.

Shantha Nand v. Basudevananda 5, 18.
Sharafat — 795.

Sharfa — 892.

Sharif Ahmad v. puabul Singh, 43 A. 497
p. — 137.

Sharma — 913.

Sharoop Chandra Das — 443.

Shashi Bhusan Mukcrjec v. Walmsley —
138.

Shcefait Ally — 37.

Sheijiatali — 930.

Sheik Beari — 379.

Sheikh Abdul— 303, 331.

Sheikh Abdullah— 314, 378, 385.

Sheikh Abdul Rahman —13, 15, 10.

Sheikh Adam — 705.

Sheikh Alimuddin — 975, 978.

Sheikh Ariff —703, 859.

Sheikh Bahadur — 602.

Sheikh Bahatar 7 ;. Nobadali — 239.

Sheikh Bazu — 546.

Sheikh Bcchoo — 982.

Sheikh Boodhoo — 532.

Sheikh Choollye, 4 W. R. 35 (Cr.) — 525,
5 46.

Sheikh Dulla v. Zainab— 712.

Sheikh Honea 75, 691, 712 _

Sheikh Mahammad Yeasin — 379.

Sheikh Oozecr — 670.

Sheikh Saheb— 713.

Sheikh Samad v. Sajidar Rahman. 53 C.

824—378, 379.

Shcobans Singh — 224.

Sheobhajan Ahir— 173.

Sheo Bux— 432, 433.

Shoo Charan — 803, 804.

Sheo Dayal — 901, 937.

Sheo Dili, 10 All. 115—331.

Sheo Din, (1901) A.W. N. 132 - 12J.

Sheo Golam Lalla — 61 1.

Sheo Jangal Prasad — 296.

Sheo Lai— 467.

Sheo Narain Singh — 578.

Sheo Nath— 621, 622.

Sheo Progash Tewari v. Bhoop Narain
(Prosad) Fathak— 26.

Sheoraj Singh — 255, 256.

Sheo Sarai! Lai -780, 919.

Sheo Saian Sahai 0 . Mohammad Fazil
Khan-55, 97. 624. #

Sheo Singh, 10 L. 513 — 822.

Shepherd — 511.

Sher, 5 L. L. J. 377—664.

Shera, (1879) P. R. No. 35—713.

Shera, (1868) P. R. No. 18—746.

Sher Ali, (1879) P. R. No. 18—162.

Sher Singh, (1883) P. R. No. 14—890.

Sher Singh (1888) P. R. No. 5 of 1889—
3048.

Sher Singh, 25 Cr. L. J. 395—116, 121.
Shcrras v. De Ruzcn, (1895) 1 Q, B. 978 —
97.

Sheru, 7 L. 50—122, 560.

Sheruffooddeen, 13 W. R. (Cr.) 26—702.
Sheshaiyangar v. RagUunath Row — 100.
Shetappa Satappa Mudenavar — 352,

Shctya Timma — 512.

She van ti — 164.

Shove alias Kalaw, l Rang. 436 — 559.

She wd bur Sukul — 796.

Shiamji — 831.

Shiam Lai — 299.

Shib Charan — 832.

Shib Chandra Mondul — 178.

Sliibharam Ayodhyaprasad, 18 Bom. L.

R. 682-483.

Shibnath— 871.

Shi bo Keori — 1 19.

Shiboo Mondal — 90.

Shibo Prasad Pandah, 4 Cal. 124 — 92, 529,
1010, 1033.

Shib Pershad Chakra verty — 299.

Shib Prosad Giri — 337.

Shickle — 705.

Sliiddungowda — 912.

Shidheswar Teor v. Gyamada Dasi — 66.
Shidlingappa — 165.

Shi fai tali— 900, 921.

Shimbu Narain —128.

Shisthidhar, 9 B. L. R. App. 19— 873, 881.
Shiv Da t— 485.

Shivaram, 15 Botn. 702—28, 704.

Shiva Putraya — 892.

Shiva Sundari Choudhurani — 266.

Shivadas Onkar Marwari- -321.

Shoma Chcturo (1897) Rat. Unrcp. Cr. C.
908- 698.

Shivanand Mudali — 33, 902.

Shiva Shan karma PiJlai — 27.

Shonaulla and Addo -62.

Shorab, 5 L. 67 — 530.

Shots Iron Co. v. Inglis — 545.

Shrira ni Von katasa mi- — 75 1 .

Shujauddin Ahmad -946, 947.

Shauibhu Nath v. Ramkamal

Slnunbhoouath Panday, l Weir 26 — 031 .
Shumeruddin -165, 169.

Shunkar — 78.

Shunker Singh v. Burmah Mahto— -118,
228, 229.

Shurofuddin v. Kasmath, 13 W. R. 65
Cr.— 141. 155.

Shwc Kin — 131.

SJiyamacharan, 15 1. C. 1004 -925.
Shyamacharan, 8 W. R. 27 (Cr.) 310.
Shyamacharan Mazumdar, 10 C. W. N 49
— .144, 248, 409, 413, 639.

Sidden Bain at h — 793.

Siddhoo — 346.

Sidhu — 20.

Sikandcr — 147.

Sikandor Bukhut — 673.

Silajit Mahto— 148, 155, 243, 247.

Si lias Moses — 770.

Silverlock — 812.

Silvester Vaz. v. Louis — 1038.

Simkin v. London and North Western Ry.
Co. — ‘160.

Simon Marrito — 379.

Simons — 731.

Sinclair— 463.

Singaraj u Nagabhusanam — 101 5.

Singer Manufacturing Co. v. Loog — 950,
954, 901.

txviii

THE INDIAN PENAL CODE

Singer Manufacturing Co. v. Wilson — 960,
951,953,956.

Singer Sewing Machine Co. v. Yen Kun
— 780.

Singhachalam — 77 6.

Singleton — 191.

Sinnaswami Mudali — 242.

Sipahi Singh — 554.

Sirajuddin Kazc v. Sear gent II. Jonner —
v 615.

Sirdar Bhagwan Singh v. Secy, of State —

104.

Sirdar Morn v. Jithabai Amirbhai — 13.
Sirsappa — 51, 309.

Sis Ram — 60S.

Sita, 18 B. 212—759.

Sita Ahir— 238, 242.

Sitabai Purshottam — 699.

Sita Devi v. Gopalsaran Narain Singh —
979.

Sital Prasad, 43 C. 591—263.

Sital Prasad, 18 A. L. J. 64—674.

Sitanath Mitra — 7 1 .

Sitara — 788.

Sithara Naick — 936.

Sit Pein — 701.

Sivdas Onkar Marwari — 321, 322.

Sivakoti Swami — 497, 498, 499.

Si van Chetty — 382.

Si vanupandia — 842 .

Sivarana Krishna Iyyer v. Shcshappa
Naidu— 922, 941."

Slanev — 921.

Sleep— 573.

Smallman — 781.

Smith, 53 C. 333—472.

Smith, 6 Cox. 31 — 838.

Smith, 34 L. J. M. C. 153—511, 571, 615
Smith, 2 Stan 74—461.

Smith, 20 Cox. 804 — 33.

Smith, 2 C. and P. 633—921.

Smith. 31 L. J. M. C. (N. S.) 154—928.
Smith, 4 W. R. 31 (Cr.) — 981.

Smith v. Anderson — 788.

Smith v. London and South Western Ry.
Co— 472.

Smith v. Moody — 190.

Snell — 592.

Sobrati v. Jungli — 925, 984, 986,

Sobratin Sain — 314, 379.

Sobul Mahee, 5 W. R. 32 Cr. F. B — 525.
Sogaimuthu Padachaghi — 557.

Sohon Lai — 758.

Sohan Singh — 785, 829.

Sohoy Dome — 672.

Sohrai Sao — 549, 560.

Sohun — 602.

Soita Biswal v. Dochhi Stri, 12 C. W. N.
269—875.

Solaimuthu Pillai v , Mtirugiah Moopan —
384.

Soloi Sheikh — 552, 568.

Soloman — 524.

Solomon (1887) Rat. Unr. Cr. C. 354 — 972.
Solomons (1909) 2 K. B. 980 — 946.
Somadurai Mudaliar — 870.

Somasu ndar am — 914.

Somiruddin — 541 .

Sommanna — 322, 323.

Sona Mathur — 10, 13.

Sonaram Mahton — 652.

Sonai Sardar v. Buktwar Sardar — 848.
Sonoo— 135.

Sookee — 650. ,

Sookomoy Ghosh — 909.

Soondcr Mohooreo — 347.

Sooraparzu — 322.

Soorat — 434.

Soripati Challamia — 246.

Soshibhusan — 821 .

Soslehner v. Appollineris Co. — 953, 961.
Soumber Gowala — 546. ,

Souriraja Naidu v. Raja Gopalar — 858.
South Helton Coal Co. v. North Eastern
News Association — 1002.

South Indian Ry. Co. v. Ramkrishna —
137.

Spence — 9.

Spencer — 716.

Spier — 50.

Spiers, H. B. v. Zahiruddin — 473, 474.
Spilling — 128.

Spinning, Weaving and Manufacturing
Co. Ltd. 957.

Spooner v. Juddow — 100.

Sreemunt Ad up — 791, 79 2.

Srienath Bancrjee — 629.

Sreenath Ghosh — 300, 302.

Shreeramalu — 271, 598.

Srccsh Chandra Banerji — 775.

Sribal — 270.

Sricharan Bauri — 89.

Sricharan Chungo— 098, 702.

Srihari v. Lai Khan — 235, 250.

Srikant — 920.

Srilal Chamaria — 181, 272, 276.

Srimanta Kotal — 69.

Srimati Sarojini Dassi v. Haridas Ghosh —
933.

Srimotee Poddee — 665, 667, 987.

Srinarain Singh — 297.

Sri Nawas — 217.

Srinivasa v . Annasami — 676, 678.

Srinivasa Ayyangar — 297, 301.

Srinivasan — 901, 908.

Srinivasa Naik — 470.

Srinivashalu Govinda — 700, 701,

Sriramalu Naidu — 75, 83, 931.

Sripad G. Chandravarkar — 394. ,

Sri Prosad — 241.

Srish Chandra Ghosh v. Abani Kanto
Hazra — 853?

Srish Chandra Sircar — 847

Srividya Sankara Narasinha Bharati v.

Guruswamulu, 6 M. 381—1038.

St. George— 579, 580.

St. Helens Smelting Co. v. Tipping — 458.
St. John Long— 574.

Stainer — 715.

Stanbury — 715.

Starey v. Chilworth Gunpowder Co. — 957.
Stelan v. Brannel — 1015.

Stephens — 9.

Stephens v. Myers — 635.

Stevens v. Biller— 789.

Stevenson — 465, 466.

Stoddart v. Sagar — 495.

Stokes— 119, 120.

TABLE OF CASES

lxix

Stone’s case — 389.

Strauss v. Francis — 1017.

Stuart — 782.

Sturges v. Bridgman— 460.

Suban Singh— 313.

Subappa Chunnappa — 47.

Subaraya — 485.

Subaraya Chetti — 413.

Suba Singh — 234.

Subbana— 301, 375.

Subba Manon — 561.

Subba Naik— 99, 528, 539.

Subbarayan — 974, 975, 984.

Subbayya, 12 M. 451—337, 338.

Subbian Servai — 706.

Subbigadu, 50 M. L. J. 559—249.

Subdar Meah, 3 VV. R. 44 — 787.

Subcd AH — 641.

Subha Chand — 805.

Subhag Ahir — 313, 379.

Sublian — 504.

Subhas Chandra Bose (Cr. Appeal of
1930) — 202.

Subhas Chandra Bose, 58 C. 1302 — 184,
225, 226, 233.

Subjan v. Saritulla — 10.

Subodh Chandra Roy Choudhury — 10, 12.
Subramania Aiyar, 28 I. A. 257 : 25 M.
61—275, 82*8.

Subramania Aiyar v. Thirumudi Mudaliar
—1029.

Subramania Ghanpati — 367.

Subramanya Pillai — 362.

Subrao Sukul — 854.

Subudhi Rantho v, Balarama Pudi — 707.
842.

Suchit Rout — 379, 831.

Suffor Ali Khan v. Gholam Hydor Khan
—9.

Sujal Biswas v. Samirnddin— 332.
Sujatali Nyamatali — 246.

Sujauddin Ahmed — 780. 947.

Sukaroo Kabiraj, 14 C. 566—97, 127,

514, 572, 574.

Sukee Raui — 676, 678.

Sulcha Singh— 849.

Sukhai Ahir — 239.

Sukhdeo Pathak — 286.

Sukheswar Phukan — 412.

Sukratendra •Thirtha Swami v. Prabhu —
1018.

Sukumar Chatterjce v. Mofizuddin Ahmed
—191. *

Suleman— 738, 872.

Sullivan, 11 Cox. 54 — 205, 1015.

Sullivan v . Norton — 1019, 1024.

Sullivan v. Pigott— 202.

Sultan v. Welbourne— 316,

Sultan, 12 L. 442—41.

Sultan, A. I. R. (1930) L. 19 (2)— 662.
Sultan, A. I. R. (1925) L. 613—688.
Sultan Ahmed — 383.

Sultan Singh— 566.

Sumanto Dhupi — 363, 364.

Summer villa v . Schembri — 953.

Sundaram Chetti— 333, 503.

Sundara Gounden — 557.

Sundar Majhi — 26.

Sunder — 875.

Sunder Baksh Singh — 229.

Sundar Dasadh v. Sital Mahto— 370.

Sunder Singh — 229, 658.

Sunder am Aiycr — 832.

Sundereswara Sruthigal — 623.

Sunker Gope — 790.

Supadi— 528, 574.

Superintendent and Legal Remembrancer
v. Biswambar Brahmin — 932.

Superintendent and Legal Remembrancer
Bengal v. Daulatram Mudi — 38, 985.

Supdt. and Legal Remembrancer Bong, v .
Barada Kanta Mazumdar — 412, 414.

Superintendent and Legal Remembrancer,
Bengal v . Laiit Mohan Singh Roy — 532.

Superintendent and Legal Remembrancer,
Bengal v. Sadar Saik — 664.

Superintendent and Remembrancer, Legal
Affairs Beng. v. Shyam Sundar Bhumji
742,

Superintendent and Remembrancer of
Legal Affairs, Bengal v. Manmatha
Bhusan Chatter jec, 817, 818, 819, 822,
823, 827.

Superintendent and Remembrancer of
Legal Affairs, Bengal v. KojaJ Haidar —
234.

Superintendent and Remembrancer of
Legal Affairs, Bengal v. Darbeshali —
245.

Superintendent and Remembrancer of
Legal Affairs v. Wilson — 565.

Suppa Kon — 369.

Suppia Sarvia — 253.

Suprasanna Ghosal — 623.

Suraj Ali v. Arfan Ali — 701.

Surain Singh — 149.

Surat Singh — 738.

Suranath Bhaduri — 354, 355, 546.

Surendra Lai Das — 3C3.

Surondranarain Audhicary — 207.

Surendranath Banerjee, 10 1. A. 171 — 18
416,417,418.

Surendranath Banerjee, 4 C.L.J. 415 — 119.

Surendranath Ghosh — 32, 902, 913, 937,
938.

Surendranath Singh v. Janakinath Ghosh
243.

Surendra Prosad Lahiri — 206.

Suresh Chandra Banerjee — 750, 920.

Surcsh Chandra Gupta v. Abdul labbar —
381.

Suri Venkatappaya Sastri v. Madula
Vcnkanna, 27 M. 531 — 28, 704.

Surja, 8 B. 312—651.

Surja, 2 A. W. N. 224—713,

Surja Narain Das — 330.

Surja Prasad v. Mahabir — 887. 954, 956,
965, 1031.

Surja Prasad — 770.

Sur Narain Prasad — 1031.

Suroop Chunder Paul — 224, 265, 266.

Suroop Napit — 883.

Surwan Singh — 868, 880.

SuryanaTayan Murathy — 509, 545.

Susiien Bohari Roy — 371, 766, 944.

Sutherland, 14 W. R. 20 (Cr.)— 3 02.

Sutherland v. Stopes— 497, 1013.

Sven Sebrg— 14, 53.

THE INDIAN PENAL CODE

txx

Swaling v. Cooper — 572.

Swaminath Thevan — 384.

Swami Nav.idu v. Suharmania — 51.
Syed Ahmed Khan — 894.

Syed Batch a Sahib — 524.

Syed Husain — 903, 937.

Syed Mahomed- —1039.

Syed Mohiuddin— 947.

Syon Shueman v. Soloman— 30, 957.
Sypu Chinna Meugaiya— -858.

T.

T. Burke — 802.

T. C. S. Martindalc-813, 911.

T. K. Pet re — 1035.

T. K. P. Mammali v. T. Kutoe— 330.
Tabarak Zamman Khan — 379.

Tabart t*. Tipper — 1017.

Tafaullah — 405.

Tafazzul Ahmed Chowdhurv, 26 C. 030-
638.

Taher Khan — 663,

Taj Mohammad — 339.

T aj voinuddy Lahore© — 2 99.

Takaram — 641.

Taki Hussain, 7 A. 205- 995, 997, 1001
1006.

Takir Hussain, 21 A. 159 — 543.

Talari Narain Swami — 271.

Talbutt v . Clark— 998.

Talebar — 846.

Talipathy v. Sonant Kankhya — 226, 845.
Tamij alias Tamijuddin Pramanik — 380.
Tamma Ghautava — 28, 704.

Tanak Choudhury --246.

Tankard — 770.

Tanoo Sikdar — 152.

Sapeshri Prasad — 727.

Tapti Prasad — 573.

Tarakanta Das — 266, 267
Tarak Das Gupta — 1045.

Tarakeswar Mukhopadhva — 380.

Tara Singh— 320, 396.

Tarinee — 85.

Tasadak H ossein — 897.

Tasadduq Ahmed Khan, 44 A. 351 — 263.
Tavab Sheikh — 525, 546.

Tayobulla — 378, 379.

Tayec — 3S2.

Tavlor, L. R. 2 C. C. R. 147-161.

Taylor (1012) A. C 3 47— 864, 924.

Taylor v. Bleach — 6.

Taylor v. Smetton— 494.

Teckai Bhcer — 730.

Teja — 743.

Tekchand — 654.

Tenaram Mondal— 552.

Teni Shah— 917, 918, 925.

Teprinessa — 362, 364, 367.

To van v. Ram Lai — 101.

Thagaraya Krishnaswami — 1006, 1030.

Thaking v . Osborne — 1002.

Thakri, P. \V. R. No. 17 of 1911 -364.
Thakur Das, 28 Or. L. J. 834—825.
Thakurdas v . Sankar Ray- —101.

Thakurdas Snr v. Adhar Chandra Missri—
1031.

Thakur Dutt — 490.

Thakur Tewari — 382.

Thala Aing — 161.

Thallman. (1864) 33 1,. J. N. S. M. C. 58—
270, 489.

Thallman, (J863) 9 Cox. 388 — 461.
Thamhu, 96 T. C. 211—1000.

Thanda Vsravtidu, 14 M. 364 — 171, 458.
Than gap pa l llara va tan - 3 1 4 .

Tharki— 305.

Tharu— 882.

Tha Sin — 561.

The Charlotta- 95.

Thckkumathal Kelukutti — 538.

Theophil us Ramappa — 784 .

Thewaram— 759, 760.

Thippana 615.

Thomas, 7 C. & P. 817 — 122.

Thomas. 29 M. 558—780.

Thomas Cas tri — 7 5 .

Thomas Closs — 37.

Thomas Dolan — 791.

Thomas Gnosil — 730.

Thomas Goss— 811.

Thomas Henson — 463.

Thomas Smith— 723.

Thompson- -101.

Thompson v. Dashwood — 99K.

Thoppulan v. Sankaranaravana. Aiver —

706, 707.

Thornotti Madathil Poker —39, 847.
Thornton— 9.

Tibbits and Wind us t— 1016.

Tika — 631, 657.

Tikam Lakhi — 350.

Tikaram, 26 A. L J. 1201 -300.

Tika Singh — 987.

Tilukdharec Mahton — 696.

Timappa — 107.

Timmal — 139

Timmins, 7 C . tS: P. 499—106.

Timmins, 30 L. J. M. C. 45—655.

Tippa — 678.

Tipping v . v. St. Helen’s Smelting Co.—
455.

Tirakadu— 221, 223, 227, 235.

Tiri— 562.

Ti r u ch i t ta m bal a Pa tbam — 3 1 9.

Tirumal Reddi — 750.

Tirura Tevan — 256, 649.

Tiru Narasinha Chari — 23.

Tiruvengada Mudali v. Tripurasundari Ani-
mal— 8, Is, 1020, 1024, 1028.
Tiruvengada Chari — 627, 698.

Tiruvengada Mudali — 4, 18, 27.

Todbul Hossain — 670, 676.

Tok Gyi— 869.

Tolson — 96 105, 106, 977.

Tonakoch — 79.

Toppan— 1001.

Toposhri Prasad— 274.

Torap Ali, 22 C. 638—362, 367.

Torap Ali, 17 Cr. L. J. 386—560, 664.
Torpcy, 49 A. 484—625.

Toshack, 1 Den. C. C. R. 492—31, 902,
913

Tota Ram, 8 L. 884—116, 117.

Tota Ram, 21 A. L. J. 605—824.

Townley— 117.

TABLE OF CASES

ixxi

Tozcr v. Child — 99,

Trailokyanath Banerjec v. Radharanjan—
360.

Train — 459, 479.

Trebilock — 708.

Tredagar Iron Co., Ltd. v. S. S. Calliope —
778.

Trenfield — 904.

Triccam Panachand v. B. B. C. I. Ry. — 2.
Trichuittambala Pattar, 21 M. 78 — 325.
Tripura Sankar Sarkar — 350.

Troyluchko — 162.

Troyluckhonath Okoudhury — 168, 708.
Tucker, 1 Cox. 73—878.

Tucker, 7 B. 42—258.

Tuckwcll— 165.

Tufail, 28 Cr. L. J. 413—666.

Tukaram, (1888) Rat. Unr. Cr. C, 405—

286

Tukaram Malhari— 749, 752.

Tukva— 82.

Tula— 379.

Tulja — 23.

Tularam— 816.

Tulli, 47 A. 276—542.

Tulsha— 526, 561.

Tulslii Bcwa v. Sweeney — 63.

Tulsidas Chaganall— 701, 78L
Tulsiram, 13 B. 168 — 322.

Tulsi Singh —142, 228.

Turimalla lvurmenna— 713, 893.

Turner, 29 C. W. N. 868—38, 935.

Turner, 11 Cox. C. C. 551 — 715.

Turner, 8 C. & P. 755—592.

Turton v. Tui ton — 954.

Twyning — 977.

Tyler and Price — 136.

U.

IJ. Ka Deo— 843.

U. Mo. Gaung v, U. Po. Sin — 837, 841.

U. Thudamawasa — 298*

Uda— 733.

Udai Narain Gain v. Ramnath Midda— *701.
Udliab Santra— 920, 929, 933.

Umacharan Singh — 146, 225, 228, 245.
Umadasi Dasi — 135.

Umar Din — 504.

Umar Khan. *39 All. 399—51, 309.

U may yathen Tagath Uthon Venkil Kunchi
Kadir— 195. #

Umed — 47.

Umed Buksh — 653.

Umed Sheikh — 302, 549.

Umesh Chandra Kar — 467, 478.

Umi— 164.

U mined — 554.

Umra— 552.

Umrao — 561, 504.

Umiao Lai— 75, 922, 926, 934.

Umrao Singh, 10 A. 437 — 742.

Umrao Singh, (1883) A. W. N. 209—840.
Ungun Lall — 302.

United Kingdom Electric Telegraph Co*—
477.

Upcndra Kumar Chose — 26.

Upendranath Bagchi — 54, 1025.
ujx*n(iranaj;h Chowdhury — 273, 276.

Upendranath Das, 19 C VV N 653 139
521, 551, 556

Upendranath Das, I C 356—488.

Usill v. Hales 1013.

Uttom Kundu -792, 815.

V.

V. M. Abdul Rahaman —922.

V. S. M. Moideen Bros. v. Eng. Thaung
and Co. — 960.

Vaithianathaswami Che tty- 767.

Vaithi Mathamm Varayanaswami Iyer
— 706.

Vaithinatha Pillai— 119.

Vajiram— 33, 370.

Valia — 749.

Vallabhram Ganpatrani— 42, 51, 702, 715.
Valliant v . Mrs. Eleazar — 654, 659.

Van Butcliell — 574.

Vanarn Subramonyam - 301 .

Vansittart- 137.

Vantauclillo —462.

Varadaraj ul u Nay ml u — 1 93 .

V a raj lal v. Ra mdat ~ -1001.

Varathappa Chattiar— 301 .

Varley — 424.

Varnakota Illatli— 998, 1031.

Vasta Ciiella — 603.

Vasudev, 50 B. 434—593.

Vasudeva Gogate — 580.

Vasudova Mud Mi — 252, 253.

Vasudev Na inbudri — 495.

Vat 1 i ia nat 1 ics \va mi Ay ycr — 824.
Vayalappra Kelappan Nair — 70 1 .

Vazirally — 493, 494, 495.

Vcdamutta — 360.

Voorabadra Pillai — 223, 225, 228.

Voora Korawan — 548.

Vecrasami Naikan — 705.

Veerana Nandan — 139.

Vocrapa Naik — 230, 233,

Velagupudi — 654.

Velavutha Chotty — 767.

Vellarah Kono. 45 M. 706 — 554.

V elupoo Kot adu — 457.

Vengat A. Yenkayya v. Thallam Venka-
taramiah — 1006.

Venkanna, 46 M. 257—232.

Venkarajce Venkatasa mi — 9 1 0.

Vcnk at ac ha 1 a M uda 1 i — 623.

Venkata — 23.

Venkata Amnia — 362.

Vcnkappa — 47 7 .

Venkata Chetty — 451, 452.

Venkata Krishna — 377,

Venkatarama Naidu — 180, 273, 276.^
Venkata Gurunatha Sastri — 770, 835.
Venkata Kao— 419.

Venkatarina Rao — 868.

Venkata Row — 720.

Venkatas agad — 68.

Venkataswami — 709._

Venkatasubbair — 237, 403.

Venkata Subba Reddy— 620.

Venkatta Chandrappa v. Venkatarama
Reddi — 369.

Venkatta Krishna — 377.

lxxii

THE INDIAN PENAL CODE

\enkutta Reddi, 1 Weir. 120 — 313. VVasawa Singh — 750 751 752

Venkatta Reddi. 1 Weir. 575—1006. 1028. Wason v. Walter— 1000 *
Venkatta Reddi. 36 M. 216—1010. 1020. Watkins v. Fox— 369.

1029. Watts— 461, 478

Venkiah— 276. 202. Wazira— 974.

Venku Mahalinga— 678. Wazir Jan. 10 A. 58—82, 286.

Vennu Ramchandriah— 185. Webb, 1 Den. Cr. C. 338—492

Vidyasagar Pande— 164. 543. 576. Webb (John) 2 Lewin 196—128

Vijayaranga Naidu— 177. 543. 576, 602. Weeks— 429.

605.

V.jiaraghava Charia. 26 M. 554 — 333,
502.

Villensky — 791 .

Vinayak Bhaktakhade — 7 82.

Vinayak Damodar Savarkai — 6, 14.
Vincent — 25S.

Virappa Chetti. 20 M. 433 — 477.
Viraperumal — 55.

Viraswami — 8 1 6.

Virasvvami Mudali — 51, 306.

Virasami Naick, 1 Weir 72 — 282.
Virumande Theram. 47 — 735.

Vir Singh— 998.

Vishnu — 489

Vishnu Vasudea Juyekao Rantfinga
Bhikling — 697.

Viswanath Row — 333.

Vithabai Sukka — 678. 679.

Vithal Narayan — 39, 902.

Vithu Rangaji — 749. 750.

Von Butchell — 128.

Vulappa v. Bheoma Row — 871, 873, 884.
Vuppellapu Viraswamy — 554.

Vyapari, 5 M. 401 — 840.

Vyaporry Modeliar. 6 C. 655 — 281.

Vyapuri Chetty — 223.

Vvasa Rao — 274.

W.

W. H. Da Cost a v. Deef holts — 811.
Wade— 703.

Wadhewa Singh — 744.

Wahiduddin No. 1—736.

Waite, (1892), 2 O. B. COO -683.
Waite, 2 East 570 — 714.

Wajid A?i — 233.

Wajid Iiossain — 92.

Wajirjan — 82.

Walker — 571.

Walli Muhammad — 555.

Wallingford v. Mutual Society — 495.
Walsh — 709.

Walters — 540.

Waman Lakshman — 499.

Ward, 2 East P. C. 861—904.

Ward, 4 Ad. and E. 384—450.

Ward v. Hobbs— 812, 813.

War is — 661.

Waiis Ali, 13 Cr. L. J. 167—118.
Waris Ali, 17 Cr. L. J. 471-301,
Warrender v. Warrander- 976.
Waryam Singh, 7 I.. Ml — 122, 123.
Waryan Singh, 3 L. L. J. 589 — 603.
Waryan Singh, 0 L. L. j. 62 -558.

Welch, (1875), 1 Q. B. D. 23-856.
Weld v. Hornby — 455.

Wellard — 270, 492.

Welsh, 2 Den. C. C. 78—433.
Welsh, 11 Cox. 338—533.

Wcnnhak v. Morgan — 998.

West— 762.

Wheeler — 14.

Wheat v. Brown— 461, 469.
Whitchurch— 163, 188, 547.

White, 1 Leach 430 — 54.

White, L. R. I. C. C. R. 311-

UfL'i 1 ^

-590.

White, 1 F. and F, 665 — 798.

White v. By water — 469.

White v. Crisp— 475.

Whitefiold v. Brand— 789.

Wild s Case — ] 49.

Wilby— 796.

Wilkinson— 137, 760, 788.

William Allison— 974, 976.

William Brice — 879.

William Cecil Key mar — 767.

William Gay lor— 587.

William Haines — 879.

William Keegan— 594.

William Kirkham— 541.

William Melllsh — ' 710, 781.

William Mills — 811.

William Mogg— 855.

William Murray — 473.

William Nicholls and John Clark— 7$
William Ritson — 908.

William Rogers— 436.

William Sheppard — 904.

William Snow — 534.

William Spencer— 781.

William Stewart— 178.

William Thomson — 534.

William Thu burn— 1 760, 761
Williams, 8 C. and J\ 286—644, 683.
Williams, (1893) I Q. B. D. 320—683
Williams, 5 Burn. & Aid. 595 — 1002
Williams, 1 M. H. C. R. 31—80, 828.
Williams, 7 C. and P. 354—783, 816
Williamson (John) 3 C. and P. 635—.
W illiamson v. Freer — 998. *

Willis v. Young — 494.

Wilson — 424.

Windsor — 289.

Winnall — 715, 782.

Wood— 719.

Woodgato v. Ridout — 1016.

Woodoy Chand Mookoopadhya— 365.
Woolley — 717.

Wooraesh Chandra Ghosh— 296.
Wotherspoon !/. Currie— 953, 961.
Wright— 477.

TABLE OF CASES

Ixxiii

Y.

Yacoob Ahmad — 779.

Yakub Ali v. Lotliu Thakur — 34, 244, 598,
600, 820.

Yad Ali v. Gaya Singh — 1029, 1032.

Yakub Shahib, 22 M. 238—68.

Yalla Gangulu v. Mamididali — 52.

Yar Mahammad — 334.

Yamin, 26 Cr. L. J. 145—739.

Yasin — 90.

Yasin Khan, 19 N. L. R. 170—795.

Yasin Sheikh, 12 W. R. 68 (Cr.)— 537.
Yasin Sheikh, 9 C. W. N. 69—361.

Yasoof Ali— 52.

Yellamand u — 485.

Yella Parshia, 3 B 0 m. H. C. R. Cr. C. 37—
892.

Yen u Gopala Mudaly — 815.

Yerlagadda Venkanna — 333.

Yippika — 91.

Ylok Kuk— 783.

Young, 10 Cox. 371 — 125.

Young, 14 Gox. 114—686.

Yusuf Hossain — 139, 141.

Yusuf Mahomed Abaruth v. Bansidhar
Siraogi, 25 C. 639 — 965.

Z.

Zafar Ali — 752.

Zakuddin — 457.

Zalim — 540.

Zappantis — 298.

Zar Singh — 889.

Zcigert — 921.

Zcrikhan — 307.

Zinda — 806.

Zipru Tanaji Tatel— 845.

Zoolfar Khan— 121, 123.

Zorawar Singh — 382, 384.

Zur Muhammad Khan— 373.

THE INDIAN PENAL CODE

(ACT NO. XLV OF 1860.)

Received the assent of the Governor General in Council
on, the 6th October , I860-

CHAPTER I.

Introduction.

WHEREAS it is expedient to provide a general Penal Code
Preamble. for British India ; It is enacted as follows: —

1. This Act shall be called the Indian Penal Code and
shall take effect * * * throughout the whole
opSltion'of the e code f of the territories which are or may become
vested in Her Majesty by the Statute 21
and 22 Victoria, Chapter 106, entitled, “ An Act for the better
government of India” * * * *

Amendment : — The words and figures “on and from the first day of May,
1861“ which occurred after the word “effect” and before the word “throughout”
and the words “except the Settlement of Prince of Wales’ Island, Singapore and
Malacca” which occurred after the word “India” were repealed by the Repealing
and Amending Act (XII of 1891), Sch. I.

The Indian Penal Code was drafted by Lord Macaulay as the President of
the first Indian Law Commission in 1837 with Macleod, Anderson and Miller — Law
Commissioners and submitted to the Governor-General-in-Council on the 14th
October 1839, and the draft Code was prepared in India in 1847-48, which after
submission in England in 1853 was moulded into a draft Code and was further
revised by Sir Barnes Peacock and others, and in 1860 it was enacted and came
into force on first January 1862. Prior to this Act, the criminal law in force in
the three Presidency towns of Calcutta, Bombay and Madras was the English law,
while in the moffussil, the Courts followed the Muhammedan criminal law
supplemented by the Anglo-Indian regulations of the three Legislative Councils.

The Penal Code is the Substantive Law and the Criminal Procedure Code is
the Adjective Law, vide s. 5, cl. (I), Cr. P. Code. The arrangement of the Indian
PenaH Cod* is natural as well as logical ; its basis is the law of England stripped of
technicality and local peculiarities, whilst certain modifications are introduced to

2 THE INDIAN PENAL CODE [CHAP. I

meet the exigencies of a country such as British India (a). See the judgment of
Devadoss, J., in Gopal Naidtis case (b).

The preamble shows that the object of the legislature was to* provide a
general Penal Code for British India (c). The preamble can of course be referred
to for the purpose of clearing up any ambiguity (d).

Offences committed prior to the operation of the code are still punish-
able under the Old Acts and Regulations (e). But the Indian Penal Code has been
applied to offences committed before the 1st January 1862.

* Statute 21 and 22 Victoria ,* c. 106 (since repealed by the Consolidating Act
as 5 and 6 Geo., 5 c. 61) may now be cited as the Government of India Act, 1858,
see the Short Titles Act, 1896 (59 and 60 vict., c. 14). The whole of the Act with
the exception of s. 4 was repealed by 5 and 6, Geo. 5 c. 61 , now called the Govern-
ment of India Act, 1915.

British India* under the definition in the General Clauses Act (X of 1897),
s. 3 (7) “shall mean all territories and places within His Majesty’s dominions which
are for the time being governed by His Majesty through the Governor-General
of India or through any Governor or other subordinate to the Governor-General
of India.”

The Indian Penal Code is superseded by Regulation V of 1872 in the Sindh
Frontier District — see s. 1 1, Bom. Code, in so far as that Regulation is inconsistent
with it.

This Code does not extend to : —

Tributary mohals of Mourbhunj (f).

Kathiawar. — The Civil station at Rajkote is not a part of British India (g),

but the cantonment of Wardhwan is within British India (h) ; the Code extends
to Islands of Perim (i), and Laccadives (j).

Civil and Military station of Bangalore — though not British territory — the Indian
criminal law is in force therein by reason of declarations according to Foreign Juris-
diction and Extradition Act, 1879 (k).

The Agency Tract of Vizagapatam — is a Scheduled District under Act XIV of 1874
and the Governor in Council extended the operation of the criminal law to it by a
notification in 1862 (1).

This Code has been declared in force : —

in the Santhal Pergannahs by s. 3 of the Santhal Pergannahs Settlement
Regulation, 1872 (III of 1872) as amended by the Santhal Pergannahs Justice and Laws
Regulation, 1899 (III of 1899) B. and O. Code ;

In the Arakan Hill District by s. 2 of the Arakan Hill District Laws Regulation,
1016 (I of 1916) ;

•

(a) Encyclopaedia Britannica, 11th Ed., Vol. 7, p. 463.

(b) (1922) 46 M. 605 (F. B.) at pp. 621, 622.

(c) Satish Chandra Chakrabarty V. Ramdoyal De, (1920) 48 C. 388 (S. B) : 24
C. W. N. 982 (988) : 32. C. L. J. 94 : 22 Cr. L. J. 31 : 59 I. C. 143.

(d) Secretary of State V. Vasudeo, (1928) 30 Bom. L. R. 1494 (1498) ; Rajrnal
V. Harnam Singh, (1927) 9 L. 260 : A. I. R. (1928) L. 35. See London County Council
V. Bermondsey Bioscope Co ., 80 L. J. K. B. 144.

(e) Mulua, (1878) I. A. 599 ; Contra Diljour Missir, (1877) 2 C. 225 (F.B.).

(f) Hurse Mohapalr a V. Dinabundoo, (1881) 7 C. 523; Bichitrananda V. Bhag -
but (1889) 16 C. 667 ; Keshab , (1882) 8 C. 985 (F. B.) followed in Bhuta Santal V. Dama
Santal, (1915) 20 C. W. N. 62.

(g) Abdul Latif Abdul Rahiman , (1885) 10 B. 186, dissenting from Triccam
Panachand V. The B. B. C. /. Ry., (1886) 9 B. 244.

(h) Triccam Panachand V . The B. B. C. /. Ry., (1885) 9 B. 244.

(i) Mangal Tekchand, (1886) 10 B, 258.

(j) Cheria Koya, (1890) 10 M. 353.

(k) Hayes, (1888) 12 M. 39. s* .

(i) Bwdara Janni, (1890) 14 M. 121.

SEC. 1 ] INTRODUCTION 3

in Upper Burma generally except the Shan States by s. 4 (1) and Sch. I o i
the Burma Laws Act, 1898 (XIII of 1898), Burma Code ;

in British Beluchistan by the British Beluchistan Laws Regulation, 1913 (II of
1913), s. 3, .Bel. Code ; k

in the Angul District by the AngulLaws Regulation, 1913 (III of 1913) s. 3 B. and

O. Code ;

in the Chittagong Hill-tracts by the Chittagong Hill-tracts Regulation, 1900 (I
of 1900), Ben. Code ; 6 v

(with modifications) in the Kachin Hill-tracts as regards hill-tribes, by the Kachin
Hill-tribes Regulation, 1895 (I of 1895) s. 3 Bur. Code; and

similarly, in the Chin Hills , as regards hill-tribes by the Chin Hills Regulation
1896 (V of 1896) Code.

This Code has been declared under s. 3 of the Scheduled Districts Act, 1874,
(XIV of 1874), to be in force in the following Scheduled Districts, namely, the United
Provinces, Tarai Districts. — See Gazette of India, 1876, Pt. I., p. 605; the Districts
of Hazaribagh, Lohardaga (now called the Ranchi District).

See Calcutta Gazette, 1899, Pt. I., p. 44 and Manbhum and Parganna Dhalbhum
and the Kolhan in the District of Singbhum — See Gazette of India, 1881, Pt, I., p. 504.

By notification under Ss. 3 and 5-A of the same Act it. has been declared in force
in the Pargannah of Manpur in Central India— see Gazette of India, 1899, Pt. II, p.
419. The powers of a Local Government were at the same time conferred on the
Agent, Governor-General, Central India, and also those of a High Court for the pur-
poses of the Code — see Gazette of India, ibid .

This Code has been extended under s. 5 of the same Act to the Lushai Hills —
see Gnzette of India, 1898, Pt. IT., p. 345.

This Code has been extended to Native States or parts thereof, by notification
in the Gazette of India or by Local laws made with the sanction of the Governor-
General in Council. It has been extended to —

1. The Civil and Military station of Bangalore, by Act V of 1867.

2. Rajputana, the Pargannas of Jodhgorh Dewair Saroth, Chang Kotkarana
and the station of Abu — by G. I., 30th October 1869, Notification No. 4918 of 27th
October, 1 869.

3. The Hyderabad Residency Bazars — by Reg. Ill of 1872, as amended by
Reg. Ill of 1899. (m).

4. The Kathiawar Agency.

5. The Surat Agency and Kolhapur Civil Station by Act XIV of 1874, G. I.,
1876, Pt. I., p. 505.

6. Kasumpti Kconthal.

7. Frontier tracts. Dera Ghazi Khan and Dera Ismail Khan.

8. The Beluchistan Agency Territories — 1914, G. I., Part I, p. 946.

9. The Satara Jagirs (partially) — Reg. II. of 1913.

10. Part of the Nanvean assigned tract, near Bhamo in Upper Burmah — Reg.
Ill of 1913.

11 . The territories of H. H. the Maharajah of Jammu and Kashmir, for purposes
of jurisdiction in certain cases — Reg. I of 1895, s. 3.

But does not extend to Civil Stations at Rajkot and Wardhwan(n).

Interpretation of the Code Construction : “ Their Lordships of the
Judicial Committee do not think it useful to go at length into the history of
the preparation and enactment of the provisions of the Indian Penal Code.
That the criminal law * of India is prescribed by, and so far as it
goes, is contained in the Indian Penal Code ; that accordingly (as the Code
itself shows) the criminal law of India and that of England differ in sundry
respects ; and that the Code has first of all to be construed in accordance with its
natural meaning and irrespective of any assumed intention on the part of its
framers to leave unaltered the law as it existed before, are, though commonplaces,
considerations which it is important never to forget. It is, however, equally true
that the Code must not be assumed to have sought to introduce differences from
the prior law. It continues to employ some of the older technical terms without
even defining them, as in the case of abetment. It abandons others, such as
principal in the first or the second degree, but it must not be supposed that,

(m) Repealed by the Government of India Act, 1915.

(u) AMul Latif Abdul Rahiman, (1886) 10 B. 186, followed in Chiman Lai
Jagivan , (1912) 14 Bom. L. R. 876.

'4 THE INDIAN PENAL CODE [ CHAP. I

because it peases to use the terms, it does not intend to provide for the ideas which
those terms, however imperfectly expressed " (o).

The burden of proof is upon the prosecutor — the accused is entitled to the
benefit of doubt (p). Presumption must always be in favour of innocence of the
accused (q).

No one cap be convicted of doubtful offence (r). Law does not weigh in the
golden scales the conflicting testimony offered by each side, but taking its stand
on the side of the accused, it examines ail facts and circumstances with care and
circumspection so that it may not abuse the liberties of those who cpme under its
protection (s). Nothing is to be regarded as within the meaning of the statute
which is not within the letter — which is not clearly and intelligibly described in
the words of the statute itself (t).

Howto construe a Penal Section As their Lordships of the Judicial
Committee have observed : “The essence of a Code is to be exhaustive on the
matters in respect of which it declares the law, and it is not the province of a
judge to disregard or go outside the letter of the enactment according to its
true construction” (u). Where a statute is expressly said to codify the law,
you are not at liberty to go outside the Code so created, because before the
existence of the Code the purpose of the codified Statute is that on any point
specifically dealt with by it, the law shall be ascertained by interpreting the
language used (v).

The proper course is, in the first instance, to examine the language of the
Statute, to interpret it, to ask what is its natural meaning, uninfluenced by any
considerations derived from the previous state of the law ; to begin with an examin-
ation of the previous state of the law on the point is to attack the problem on
the wrong end ; and it is a grave error to force upon the plain language of the
section an interpretation which the words do not bear, on the assumption of a
supposed policy on the part of the legislature not to depart from the rules of the
English law on the subject ( w ). The Madras High Court in the Full Bench
decision of Tiruvengada Mudali V. Tripurasundari Ammal (x) in considering
whether an accused person might claim absolute privilege in defamation contained
in a petition of complaint, observed : “Our task is to consider the words of the
Statute and to say whether it leaves it open to the accused to contend that it is
not exhaustive of all the cases of privilege which can be put forward.”

Willes, J., observed : “ I quite agree that criminal enactments are not to be
extended by construction when an offence against the law is alleged, and when
the Court has to consider whether that alleged offence falls within the language

(0) Barendra Kumar Ghose , (1924) 52 1. A. 40 : 52 C. 197 (P. C): 29 C. W. N.

181 (192) : 41 C. L. J. 240 : (J925) M. \V. N. 26 : 3 Pat. *L. K. 1 : 27 Bom. L. R. 148 :

A. I. R. (1925) (P. C.) 1. : 20 P. L. R. 50 : 0 Pat. L. T. 169.

(p) Ahmed , 11 W. R. (Cr.) 25 (27) ; Madhob Chander, 21 W. R. (Cr.) 13 (20) ;

Deputy Legal Remembrancer V. Karuna, (1895) 22 C. 174.

(q) Deputy Legal Remembrancer V. Karuna , (1895) 22 C. 174.

(1) Jmami , 10 A. L. J. 426.

(s) Beharee, 3 W. R. 23 (20) Cr.

(t) Kola Lalang , (1881) 8 C. 214 (215); Kaderbhai, (1927) ;>J B. 896 (901);
Musamat Kesar, (1918) 4 P. L. J. 74.

(u) Gokul Mundar V. Padmanund, (1902) 29 C. 707, (715) (P. C.) : 4 Bom. L. R.
793, (796).

(v) Bank oj England V. Vagalino , (1891) A. C. 107; Narendra V. Kamalbashini,
23 t. 563 (P. C.).

(w) Satish Chandra Ckakravarty V. Ram Dayal De, (1920) 48 C. 388 : 24 C. W. N
982*: 32 C. L. J. 94 : 22 Ci. L. J. 31 : 59 I. C. 143. (S. 3.) ; Bat Shanta V. Umraa
Amir , 50 B. 162.

(x) 49 M. 728 (F. B.) : 51 M. L. J. 112 : (1926) M. W. N. 606 : A. J. R. (1926)

M. 906. ^

SEC. 1 ]

INTRODUCTION

5

of a criminal statute, the Court must be satisfied not only that the spirit of the
legislative enactment has been violated, but also that the language used by the
legislature # includes the offence in question, and makes it criminal** (y).

The proper course in construing an Act is to ascertain the natural meaning
of its language, and not to assume that it was intended to leave the existing law
unaltered, except when such intention is stated (z). In the case of penal statutes
and fiscal enactments strict construction most favourable to the subject ought to
be accepted (a), but a Full Bench of the Judicial Commissiondrs’ Court has held
that although penal statutes should be construed strictly, but there is no absolute
bar to the omissions being supplied in fit cases and it may be inferred in a proper
case that the legislature has impliedly conferred criminal jurisdiction on inferior
criminal courts, though there are not express words in that behalf (b).

Value of English decisions : — The framers of the Indian Penal Code
regarding the English system as “artificial”, “framed without the slightest reference
to India*’ and very “ defective **, declined to make it more than any
local system the ground work of the Code. Cases decided in England,
therefore, must be received in India with a careful allowance for the great
difference of the law in the two countries (c). The Calcutta High Court has
held that in India the question is merely how the Statute should be
construed, and the English cases are no authority on the construction of the
Penal Code (d). Richardson, J., held that the cognate topics (on law of abetment)
are dealt with in English law on lines so different that the English cases are of little
or no assistance (e). Reliance on cases decided under criminal law of England is
liable to mislead, though such cases may sometimes be useful as illustrating prin-
ciples (f). The Madras High Court by a Full Bench has held that in this country
the criminal law has been codified in the Indian Penal Code and in the Code of
Criminal Procedure and the purpose of the codified Statute is that on any point
specifically dealt with by it the law shall be ascertained by interpreting the language
used (g). The judges have to construe the Indian Penal Code as they find it.
It is not within the province or the duty as judges to make laws. The judges have
only to interpret the law as given to them by the legislature of this country ; and
by its enactments they must be guided and controlled (h).

Proceedings of the Legislative Council— should not be referred to (i).

Reports of the Select Committee— should not be referred to (j).

Statement of Objects and Reasons Courts should not refer to them (k).
It has been pointed out however in the Full Bench decision of Shanthas Nani

(y) Britt V. Robinson , (1870) L. R. 5 C. P. 503 (513. 514).

(z) K*ri Singh, (1912) 40C. 433 : 17 C. YV. N. 297. sw also Maxwell on the

Construction of Statutes, 7th Edition, Chapter X, p. 425 ; Blackstone's Commentaries
on the Laws of England (4th edition) Vol. I, p. 2.

(a) Kadevbhai, (1927) 51 B. 890 (907), following Mylaporc Hindu Permanent
Fund Ltd. V. 2'he Corporation of Madras, 31 M. 408, and Manindra Chandra Nandy V.
Secretary of State for India, (1907) 34 C. 257 (268).

(b) Noormahomed , (1926) 105 I. C. 433 : A. I. R. 1926 Sind (F. B.).

(c) Moorga Chetty, (1881) 5 B. 338 (362) (F. B.).

(d) Bibhuti Bhusan Biswas V. Bhuban Ram, (1918) 46 C. 516 (519).

(e) Srilal Chamaria, (1918) 46 C. 607 (619).

(f) Ram SUbhag Singh, (1914) 19 C. W. N. 972 (980) : 16 Cr. L. j. 641 (648) : 30
I. C. 465.

(g) Copal Naidu, (1922) 46 M. 605 (614) (F. B.).

(h) Musamat Kesary , (1918) 4 Pat. L. J. 72 (86).

(i) Balgangadhar Tilak, (1898) 22 Bom. 112, following The Administrator-General
of Bengal V. Prem Lai Mullick, (1895) 22 C. 788 (P.C.).

(j) Krishno Aiyanger V . Nallapermal Pillui, (1919) 22 Bom. L. R. 568; The
Administrator General of Bengal V. Prem Lai Mullick, (1895) 22 C. 788 (P. C.).

(k) Balgangadhar Tilak , (1898) 22 Bom. 112 (127) ; The Administrator-General of
Bengal VjPremlal Mullick, (1895) 22 C. 788 (P. C.) ; Rajmel V. Harnam Singh , (1927)
9 L. 260.

6

THE INDIAN PENAL CODE

[CHAP. I

V. Basudevanand (1) that their Lordships of the Judicial Committee in the case
of Prem Lai Mullick. 22 1. A. 107 (1 18) : 22 C. 788 (799), condemned reference to

the proceedings of the legislature which resulted in the passing of an Act, and not
reference to the ‘Statement of Objects and Reasons’ but the majority of the Judges
held a contrary view, viz., unlike the preamble, the headings and the marginal notes,
the statement of objects and reasons for the bill is no part of the Act as passed by
the legislature.

Illustrations : — The general words of the section should not be limited to
the illustrations given in the Act (m). Illustrations do not form part of the Code
and are not binding on the Courts (n). An illustration to a section is useful so far
as it helps to furnish some indication of the presumable intention of the legislature
and does not bind the Courts to place a meaning on the section which is incon-
sistent with its language (o).

The Privy Council has held that illustrations although are not part of the
sections have been expressly furnished by the legislature as helpful in the working
and application of the statute (p). In a later decision the Privy Council has held
that illustrations are to be taken as a part of the statute (q).

Specific offences : — It is ordinarily desirable that when an act or omission
is made penal by two Acts, one general and other special, the sentence should be
passed under the special Act (r).

Marginal notes cannot be referred to for the purpose of construing an Act (s)a
Marginal notes are not parts of the sections, but there is no reason why they
should not be consistent with the sections themselves (t). Though the headings
and marginal notes should not be held to govern the clear text of a section, yet
they can be taken as an indication of what the legislature meant (u). A Full
Bench of the Allahabad High Court has held that marginal notes can be referred
to, for an exposition of the meaning of a section depends upon whether the note
has been inserted by or under the authority of the legislature (v). But the Madras
High Court has held that the construing of a section by reference to marginal
notes is not legitimate (w).

Punctuation : — The Privy Council has held that in reading an Act of the
Legislature the Court takes no notice of the commas (x), although in an earlier
case (y), it has been held that the generally accepted rule is that punctuation
cannot be regarded in interpreting Acts of Parliament as no punctuation appeared
before 1849, punctuation could be considered in interpreting an Indian statute.

(1) 52 A. 619 A. I. R. (1939) A. 22 (F. B.), see aJso Ratansi Harji, (1927) 31 Bom.

581 (586).

(m) Govinda Pillui V. Thayamul , (1904) 28 M. 57 ; Fakitappa, (1890) 15 Bom.
491 (496) ; Koylash V. Sonaton , (1880) 7 C. 132 (135) ; Rino Subedar, (1912) 16 I. C.
753 : 13 Cr. L. J. 721. f

(n) Dcbi Sahai V. Ganeshi Lai , (1875) 1 A. 34.

(o) Satish Chandra Chakvavarty V. Ram Dayal Dey, (1920) 48 C. 388 : 24 C. W. N.
982 : 32 C. L. J. 94 : 22 Cr. L. J. 31 : 69 I. C. 143 (S. B.).

(p) Makammad Syodol Arifan V. Yeshooi Gork, (1916) 2 A. C. 575: 43 I. A.
256 : 19 Bom. L. R. 157.

(q ) Lalla Balia Mai V. Ahad Shah, (1918) 21 Bom. L. R. 558 (P. C.).

(r) Kuloda Prosad Majumdar, (1906) 11 C. W. N. 100 (104) : 5 C. L. J. 47.

(s) Belraj V. Jagat Pal, (1900) 26 A. 393 (406) ; followed in Natesa Mudaliar ,
(1926) 50 M. 733 (734), Dukhi Molla, (1895) 23 C. 55.

(t) Bahadur Molla (1924) 29 C. W. N. 151 (152).

(u) Narayansami V. Rangaswami , (1926) 49 M. 716 : 50 M. L. J. 547 : A. I. R.
(1926) M. 749.

(v) Ramsaran Das V. Bhagwat Prasad, (Civil Case) (1928) 27 A. L, J. 290 (F. B.)
following Cloydon V. Green , (1868) L. R. 3 C., P. 511.

(w) Natesa Mudaliar , (1926) 50 M. 733.

(x) Pugh V. Ashutosh Sen , (1928) 31 Bom. L. R. 702 (P. C.) : 8 P. 4J6.

(y) Taytir V. Bleach , (1914) 17 Bom. L. R. 56.

SEC. 2 ]

INTRODUCTION

7

Provisos : — Full and natural meaning should be given to them in construing
a section (z).

Jurisdiction : — The exercise of jurisdiction in any part of His Majesty’s
Indian territories by the High Courts is subject to and not exclusive of the general
legislative power of the Governor-General in Council (a).

As to the jurisdiction of British Indian Courts on railways in Native States
if there is no general criminal jurisdiction irrespective of the place where the
offence is committed, then a person who has committed an offence in British
territory cannot be arrested at a station on a railway line passing through a Native
State (b).

In cases of doubtful jurisdiction evidence of the witnesses is to be taken (c).

2. Every person shall be liable to punishment under this
Code and not otherwise for every act or
omission contrary to the provisions thereof,
of which he shall be guilty within the said
territories * * * *

Punishment of often
ces committed within
the said territories.

Amendment : — After the word ' ‘territories,” the clause, * on or after the
first day of January, 1862,’* which occurred, was repealed by the Repealing and
Amending Act XII of 1891, Schedule I.

Scope : — This section makes the law exhaustive as to the punishment of
any offence under any of its sections (d).

Object : — The object of this section is to declare the liability of every person
irrespective of rank, nationality, caste or creed to be punished under its provisions (e).

Every person — is made punishable irrespective of nationality, rank, caste,
colour or creed. It makes no distinction between a British Subject and a Foreigner
who enters the British territories and by accepting the protection of British laws
gives an assurance of his fidelity and obedience tc them. It is no defence to a
Foreigner that he did not know that he was doing wrong, the act being no offence
in his own country. But it is a matter to be taken into consideration in mitigation
of punishment (0*

Exceptions: — There is no Court in this country which can try the Governor-
General and the Members of his Executive Council, the Governor of Local
Provinces and the members of their Executive Council and the Chief Justices and
Judges of the Indian High Courts for any act done by them in their public capacity.
Offences committed by them shall be enquired into or tried in the Court of King’s
Bench in London, II Wifi., IV c. 12 ; 18 Geo. Ill, c. 63 ; s. 39 ; 21 Geo. III.,
c. 7, ss. 4, 5. They cannot be arrested or imprisoned in any suit or proceeding
in any High Court acting in the exercise of its original jurisdiction by reason of
anything done in their public capacity nor shall be subject to the original criminal
jurisdiction in respect of any offence not being treason or felony (g). But it may
be pointed out that Judges may be proceeded against for acts done in their private
capacity.

(z) Alcmgamanjuri Debi V. Sonamoncy Debt , (1882) 8 C. 637.

(a) Hurrah, (1878) 4 C. 172 (P. C).

(b) Mohammad Yusujuddin , (1898) 24 I. A. 137; Hatha Kishen , (1920) 1 l.ah.
406; Vinayak Damodar Sarvarakar , (1910) 13 Bom. L. R. 296 (304).

(c) Motce Chand V. Mokendra Nath , (1868), 9 W R. (Cr.) 29.

(d) Kori Singh, (1912) 40 C. 433 ; 17 C, VV. N. 297.

(e) Mphabir Singh, (1902) 25 A. 3JL.

if) mop, (1836) 7 C. and P. 456.

(g) Government of India Act, 1915 (5 and 6, Geo V. c. 61) s. 110.

8

THE INDIAN PENAL CODE

[ CHAP. I

Foreign Sovereigns and Ambassadors : — Their families, secretaries,
messengers and servants are also excepted — aide Diplomatic Privilege Act
(1798) 7 Anne., c. 12. Sovereign is exempted from the jurisdictipn of the
criminal courts. The legal maxim, “The King can do no wrong” does not mean
that he can do anything he likes.

The real principle on which the exemption of every sovereign from the juris-
diction of every Court has been deduced is that the exercise of such jurisdiction
would be incompatible with his real dignity — that is to say, with his absolute

independence of every superior authority The immunity of an ambassador

from the jurisdiction of the Courts of the country to which he is accredited is
based upon his being the representative of the independent sovereign or State (h).

Alien enemies in respect of acts of war cannot be tried by ordinary criminal
courts but by martial law(i).

Indian Princes are not British subjects (j) and are exempted from the opera-
tion of this Code. .

A subject of a Native State, who is guilty of retaining stolen property within
the Native State, is not liable to be punished under the Indian Penal Code (k).

‘shall be liable to punishment under this Code and not otherwise 9 : —

These words repeal all former laws for the punishment of every offence which
is made punishable by the Indian Penal Code (1). The effect of section 5 is to
qualify the general repeal prescribed by section 2. The two sections taken together
declare that offences defined by special and local laws continue to be punishable
as before (m).

* ‘and not otherwise 9 — The Code being exhaustive, a person shall only
be punishable according to this Code (n). No person can claim to be tried
according to English Law (o).

‘contrary to the provisions thereof 9 ■ “We are unaware of any instance
other than the present where it has been argued that matter outside of the statute
can be invoked not by way of construning its provisions but of adding something
to it which is admittedly not to be found within it*’ (p).

‘within the said territories 9 :— Besides the British territories according to
international law. Courts will have jurisdiction in respect of acts done within
Marine league or 3 Geographical miles from low-water mark of the shore (q), but
now Territorial limits extend to one Marine league of the coast measured from
the low-water mark in the open Sea by the passing of the Territorial Waters
Jurisdiction Act, 1878 (41 and 42 Viet., c. 73, ss. 2, 3 and 7) in consequence of
the decision in /?. V. Keyn , L. R. 2 Ex : D. 63 (r). •

Hence offences committed on the High Seas arc not punishable by this
Code but by English law.

(h) The Parle mart Beige, (1880) 5 P. D. 107 (207).

(i) Hawk , P. C. c. 17, s. 6.

(j) Mohammad Yusuppuddin, (1890) 25 C. 20 (P. C.).

. (k) Guma, (1920) 48 0K7, following Kirpul Singh, (1887) 9 A. 523.

(l) Satish Chandra Chahravarti V. Ramdoyal De, (1920) 48 C. 388 (S. 13.) at 400 :
24 C. W. N. 982 (988).

(m) Ibid.

(n) Gokitl Mandat V. Padmanund, (1902) 29 C. 707 (715) (P. C.).

(o) Kastuya, (1871) 8 Bom. H. C. R. 63 (Cr.) ; Koti Singh, 40 C. 433 : 17C.W.N.

277 .

(p) Tiruvengada Mudali V. Tripur asundari Ammal , (1926) 49 M. 728 (F. B.)
at p. 736 : 51 M. L. J. 112.

(q) Elmstone, (1870) 7 Bom. H. C. R. 86 (Cr.) ; Kastuya , (1871) 8 Bom. H. C. R.
63 (Cr.) ; Embelton V. Brown, 30 L. J. M. C. I.

(r) (1876) L. R. 2 Ex; D. 63 ; See also Secretary of State for India^l. Sri Raja,
Chilkani Ram Rao, (1916) 18 Bom. L. R. 1007 (P. C.).

SEC. 3 ]

INTRODUCTION

9

Act or Omission : — See s. 33.

Master if responsible for the acts of his servants The recognised
principle of English criminal law is that a master is not responsible for the
unauthorised act of his servant or agents (s). A master is not criminally liable
merely because his servant or agent commits a negligent (t), or malicious (u) t or
fraudulent act.

A master is not criminally responsible for the wrongful act of a servant unless
he can be shown to have expressly authorised it (v), but the master was held liable
in cases where he employed a servant whom he knew to be incompetent in a duty
affecting the safety of others (w), and in cases of statutory liability. e.g. f under
s. 27 infra where property in the possession of a person’s wife, clerk or servant
on account of that person is in that person’s possession within the meaning of the
Code (x). Under s. 46 of the Bengal Excise Act, VII of 1 878, the holder of a license
has been held guilty for the misconduct of his servant or agent (y), but in a case of
Public Nuisance, it is the occupier who is liable and not the absent proprietor (z).
The Allahabad High Court has held that in order to establish a charge of
committing a nuisance in a public place to the annoyance of passengers or residents
in the locality it is necessary to prove that somebody was annoyed (a). The
Calcutta High Court in the Full Bench decision of Faieh Chand Agarwallct, (b),
has held that a master is responsible criminally for his servant’s possession of a
spurious coin if it is shown that the servant possesses it on his account.

But under ss. 154 and 155, I. P. C., the owner or occupier of land is punish-
able for the breach of duty committed by his agent or manager.

3. Any person liable, by any law passed by the Governor-
General of India in Council, to be tried for
cJ ,U com h iStw 0 be?JS a . n offe ^e committed beyond the limits of
but which by law may the said territories shall be dealt with
territories. within ’ "" according to the provisions of this Code for
any act committed beyond the said terri-
tories in the same manner as if such act bad been committed
within the said territories.

This section and the next refer to the extra-territoriaf operation of the Code
but this section enacts that if a person is to be tried for “an offence committed

a ^ _____________

(s) Per Pollock. B. in Budd V. Lucas, (1891) 1 Q. B. 408 (412) ; Per Blackburn,
J., in Reg. V. Stephens, (18(56), L. R. 1 Q. B. 702 at p. 710.

(t) R. V. Allen, (1835) 7 C. and P. 153 ; Chisholm V. Boulton, (1889) 22 Q. B. D.

736.

(u) Reg. V. Huggins, (1880) 2 Ld. Raymond, 1674.

(v) Suffer Ali Khan V. Golam Hyder Khan, (I860) 6 W. R. (Cr.) 60 see Allen
(1835) 7 C. and P. 153.

(w) Reg V. Spence, 1 Cox. 353. See Thornton V. Emp., (1910) 38 C. 416 — case
of rash and negligent driving by a servant who took friends for joyride (1910) 38 C.
415, followed in Baidva Nath Bose V. Emp., (1917) 45 C. 430— decision under the
Motor Vehicles Act III of 1914.

(x) Emp. V. Fatehchand Agarwalla, (1916) 44 C. 477 (F. B.) : 21 C. W. N. 33 :

24 C (yf ^MotiLal Chandra V. Emp., (1912) 39 C. 1053 ; Emp. V. Babulal, (1913)
34 A. 319.

(z) Bibhuti Bhusan Biswas V. Bhuban Ram , (1918) 46 C. 615.

(a) Lalu Ram, (1923) 21 A. L. J. 772 : 25 Cr. L. J. 332 : 77 I. C. 188 : A. 1. R.

(192 (t5) AU (i916) 44 C. 477 : 21 C. W. N. 33 : 24 C. L. J. 400 : 18 Cr. L. J. 385.

THE INDIAN. PENAL CODE

10

[ CHAP. I

beyond the limits of the said territories’*, he shall be dealt according to the provi-
sions of this Code (c).

Theft within British Territory.— Retention of stolen .property
outside British Territory : — British Court cannot try accused (d).

Offender who is a subject of Native State where to be tried : — A subject
of a Native State cannot be tried in British India for an offence of abduction com-
mitted in the Native State (e.).

Powers of the Governor-General of India in Council : —Stuart, C. J ;#
in Sarmukh Singh's case (0 and the Patna High Court in Parameswar Ahir s
case (g) has recently considered the powers of the Governor-General of India in
Council to create new Courts of Justice and limit the jurisdiction of existing Courts.

The Legislature has made ample provisions for the arrest and detention of

persons Under the Indian Extradition Act (XIV of 1913) ample

provision has been made by Chapter III for the surrender of fugitive criminals
in cases of States other than Foreign States. Similar provisions are to be found in
the Fugitive Offenders Act of 1881 (44 and 45 Viet., c. 69). Under s. 491 of the
amended Code of Criminal Procedure as it now stands the Criminal Bench of the
High Court has jurisdiction to entertain an application in extradition cases (h).

Offences committed by European British subjects in Foreign Territory
where to be tried : — A European British subject is liable to be tried in the High
Court of Bombay for an offence against the Indian Penal Code committed in the
territories of a Native Prince in alliance with the Government upon charges framed
under the Penal Code (i). It has recently been held in the case against Sir Charles
Tegart, (i ,) Commissioner of Police, Calcutta, that he could be tried in the High
Court under the Charter for an offence alleged to have been committed in French
Chandcmagore.

Certificate of Political Agent : — Where the offence was committed in a
Native State which possesses a Political Agent, he must certify that the offence is
one which ought to be tried in British India (j). The Allahabad (j), the Bombay (k),
and the Madras (1) High Courts and the Lower Burma Chief Court (m) have held
that such certificate is a condition precedent to an enquiiy into the charge and is
not a mere irregularity covered by s. 532, Cr. P. Code. The Lahore High Court
has also held the same view in the recent case of Buta Singh (n). The contrary
view taken in the Assistant Sessions Judge, North Arcot V. Ramamal (o) has
been superseded by the amendment of s. 188, Cr. P. Code (p).

4. The provisions of this Code apply also to any offence

Extension of Code to committed by - -
extra-territorial offences.

(c) Pirtai, (1873) 10 B. H. C. R. (Cr.) 356 ; Roda, (1889) P. R. No. 30 of 1888.

(d) Moheswari Prosad Singh, (1914) 18 C. W. N. 1178: 16 Cr. L. J. 637: 24
I. C. 946.

(e) Attand Gir, (1913) 7 S. L. R. 128 : 15 Cr. L. J. 511 : 24 I. C. 599.

(f) (1879) 2 A. 218 (F. B.).

(g) Parmeshwar Ahir, (1917) 3 Pat. L. J. 537 (F. 15.).

(h) Per Mookerjee, J., in Subadh Chandra Roy Choudhury. (1914) 62 C. 319
2® C. W. N. 98 (105) : 40 C. L. J. 480.

(j) R. V. Chill, (1871) 8 Bom. H. C. R. (Cr. Ca. 9).

(i,) 3 "» C W N 782

(j) Narain (1919) 41 A 452: 17 A. I.. J. 450 : 20 Cr. L. J. 276 ; Ramsunder,
(1886) 19 A, 109(110).

(k) Baku Tukaram, 24 B. 287: 1 Bom. L. R. l>78.

(l) Kathaperamal, (1889) 13 M. 423.

(m) L. B. R. (1872-1892) 334.

(b) 7 L. 398.

(o) 38 M. 779. V

(p) Son m Mathw, 32 Bom. L. R. 18.

sec. 4 3 ^STR0lp|I0Nv:' ^ 11

(1) any Native Indian subject or Her Majesty in any place
without and beyond British India ;

(2) any other British subject' within the territories of any
Native Prince or Chief in India ;

(3) any servant of the Queen, whether a British subject
or not, within the territories of any Native Prince or Chief in
India.

Explanation . — In this section the word “ offence ” includes
every act committed outside British India which, if committed
in British India, would be punishable under this Code.

Illustrations.

(a) A, a coolie, who is a Native Indian subject, commits a murder in Uganda.
He can be tried and convicted of murder in any place in British India in which he
may be found.

(b) B, a European British subject, commits a murder in Kashmir. Ho can
be tried and convicted of murder in any place in British India in which he may be
found.

(c) C, a foreigner who is in the service of the Punjab Government, commits a
murder in Jhind. He can be tried and convicted of murder at any place in British
India in which he may be found.

(d) D, a British subject living in Indore, instigates E to commit a murder in
Bombay. D is guilty of abetting murder.

Legislative Changes : — The original s. 4 was repealed and this section was
substituted by s. 2 of the Indian Penal Code Amendment Act, 1898 (IV of 1898)
vide Statement of Objects and Reasons, Gazette of India, (1897) Pt. VI, p. 238. . . .
"We think it is right and convenient in the case of a Code like the Indian Penal
Code that the extent of its extra-territorial operation should appear on the face
of the Code itself.”

Analogous law : — See s. 188 of the Criminal Procedure Code which corres-
ponds to this section.

This section deals with three classes of persons, (1) Native Indian Subject,
(2) British subject, i.e., European British Subject, (3) Servant of the Queen.

Native Indian Subject of Her Majesty : — The term means only a native
subject de jure and not dc facto ; a person who occasionally resides in British
India does not thereby become de jure ‘subject* amenable ^to the jurisdiction of
a British Indian Court for an offence committed by him in a foreign territory (q).
The term ‘Native Indian Subject of His Majesty* must be construed strictly and
cannot be held to include servants of His Majesty (r).

Servant of the Queen: — See definition in s. 14, infra*

British India : — See definition in s. 13, infra .

Under the provisions of the General Clauses Act, 1897, s. 3 (27) — ‘British
India* shall mean all territories and places which are for the time being governed
by His Majesty through the Governor-General of India or other officer subordinate
to the Governor-General of India.

A British Subject — means a European British Subject. See also s. 4(i),
Criminal Procedure Code.

Applicability of the section to offences outside British India. This
section like s. 188, Criminal Procedure Code, applies only to offences committed

(q) Fahir , (1884) P. R. No. 1 of 1885.

W tinp. V. Natwari, (1891) 16 B, 178 (182).

12 THE INDIAN PENAL CODE [ CHAP. I

outside the limits of British India, but not to offences committed within British
India (s).

Procedure in respect of offences committed outside British India s —

Offences committed outside British India may be committed in (1) a part of
British territory outside British India, or (2) on the High Seas, or (3) in a Native
State, or (4) in a Foreign State.

Now under these circumstances two courses are open

fi) the offender may be tried in the country where the offence was com-
mitted (Extradition),

(ii) the offender may be tried in British India (Extra-territorial
jurisdiction).

Extradition : — (I) Where the offender has escaped into a Foreign State;
(2) where he has escaped into a Native State, and (3) where he has escaped into
British Dominions. The legislature has made ample provisions for the arrest and
detention of persons — under the Indian Extradition Act (XIV of 1913) ample
provision has been made by Chapter III for the surrender of fugitive criminals
in cases of States other than Foreign States. Similar provisions are to be found
in the Fugitive Offenders Act of 1881 (44 and 45 Viet., Chap. 69). Under s. 491
of the amended Code of Criminal Procedure as it now stands the Criminal Bench
of the High Court has jurisdiction to entertain an application in extradition cases.
Now under the Indian Extradition Act of 1903 (Act XV of 1903) magistrates in
British India may issue warrants to arrest persons having committed offence in
Native States or in any State not being a Foreign State upon information or com-
plaint that a person is accused or suspected of having committed an offence within
the local limits of his jurisdiction and surrender them to the States within whose
jurisdiction the offences are committed even without a requisition as required
by section 7 of the said Act.

European British Subject is exempted from the Indian Extradition Act,
vide s. 7 of that Act. The High Court has power to interfere in revision where
magistrate acts without jurisdiction in issuing warrant (u), but the High Court has
no power to interfere in extradition orders passed by Political Agents (v). Where
an extradition of an accused is being demanded he can resist an order only by
shewing that he committed a political offence (w). Where under s. 8 of the said
Act a Political Agent has directed an accused person to be released on his executing
a bond with sureties, a magistrate has no authority to release him on bail without
the endorsement of the Political Agent (x). Under s. 3 of the said Act where
a requisition is made to the Government of India or to any Local Government
by the government of any Foreign State (i.e., a State to which the Extradition
Acts apply) for the surrender of Fugitive criminal, hf may be surrendered if the
offence be one of the offences mentioned in the First Schedule of the Indian
Extradition Act and is not of a political character (y).

(s) Rego Monto Poulo, (1893) 19 B. 741, referred to in Jumabin Fakir , ((1896)
22 B. 64, distinguished in Baku (1899) 24 B. 287.

(t) Per Mukherji, J., in Si ibodh Chandra Roy Choudhury , (1924) 62 C. 319: 29
C. W. N. 98 (106) : 40 C. L. J. 489.

(u) Gulli Sahu, (1913) 41 C. 400 see also Suhodh Chandra Roy Choudhury, (1924)
62 C. 319: 29 C. W. N. 98: 40 C. L. J. 489.

(v) Giyan Chand , 11008) P. R. No. 3 of 1909 : 9 Cr. L. J. 3 : P. W. R. No. 3
Cr. 96; Gulli Sahu , (1914) 42 C. 793.

(w) In re Arton , I. Q. B. 108.

(x) Raj Kumar Dull V. Tolhel Sijo : (1907) 7 C. L. J. 171 : 12 C. W. N. 602 :
7 Cr. L. J. 198 ; Balthesar , (1906) 33 C. 1032 : 4 Cr. L. J. 360 , see Extradition Act

(XIII of 1913).

(y) See Procedure in s. 3 of Act XV of 1903. For offence of politftkl character
In re Meunit,* (1894) 2 Q. B. 416, 419.

SEC. 4 ]

13

In case of Foreign States other than those where for the time being the Extra-
dition Acts of 1870 and 1873 apply, the surrender of offenders depends upon treaty
for the exchange of fugitive criminals, vide Treaty with France (Aug. 14, 1876),
Portuguese Treaty Act (IV of 1880), where an accused who had taken shelter in
British India after committing an offence at Chandemagore was extradited (z).

Extra-territorial Jurisdiction : — The British Indian Courts have extra-
territorial jurisdiction to take cognizance of offences committed outside British
India oft (I) a land, (2) High Seas.

(1) Land : — The local Courts have jurisdiction to take cognizance

(a) of offences committed outside British India under ss. 3 and 4 of
the Indian Penal Code and s. 188 of the Code of Criminal
Procedure. The High Court has powers over the European
British Subject within the dominions of Native States by virtue
of 24 and 25 Viet., c. 104.

This section applies to — (1) Cyplus fa) ; (2) Bangalore (b) ; (3) Goa Territorial
waters.

Under the proviso to s. 188 of the Criminal Procedure Code, the Political
Agent’s Certificate is a preliminary requisite for the institution of criminal proceed-
ings in British India in respect of offences committed outside British India in Native
States and without such certificate proceedings would be without jurisdiction
and void (c). The said proviso has superseded the contrary view taken by the
Madras High Court in Ramaswami's case (d).

Foreign State : — Under s. 9 of Act XXI of 1879 a Native Indian Subject
of Her Majesty could be tried in British India for an offence committed in a Foreign
State (e). There are a number of Asiatic Foreign States over which His Majesty
has by treaty or grant or usage acquired Extra-territorial jurisdiction (f).

Jurisdiction over Christian British Subjects in Native States In

exercise of the powers conferred by the Indian High Courts Act s. 3 (28 and 29
Viet., c. 15) which corresponds to s. 109 (1) of the Government of India Act, 1915
(5 and 6 Geo. V. c. 61) the Governor-General in Council has issued the following
notifications —

(1) Notification number 853 I. B., dated 19th April 1913, Gazette of

India, 1913, Part I., p. 406*

(2) .Notification number 1589, dated 2nd August 1916, Gazette of India,

1916, Part I., p. 1121.

(3) Notification nurhber 639 I. A., dated 14th February 1902, Gazette of

India, 1902, Part I., p. 135.

(z) Rahamat AH, (1919) 30 C. L. J. 24.

(a) Sarmukh Singh, (1879) 2A. 218 (F. B.).

(b) This Code applies by virtue of declarations of the Governor-General in
Council under Act XXI of 1879. In re Hayes (1888) 12 M. 39.

(c) Shaikh Abdul Rahaman , (1889) 14B. 227 (230) ; Narain , (1919) 41 A. 452 ;
Baku Tukarum, (1899) 24 B. 287 ; Sana Mathur, (1929) 32 Bom. L. R 98;
Kthaperummal, (1889) 13 M. 423 ; Buta Singh , (1926) 7 L. 396 2 A. I. R.
(1926) L. 185.

(d) The Assistant Sessions Judge , North Arcot V. Ramaswami A sari, (1914) 38
M. 779: 16 Cr. L. J. 207.

(e) Sirdar Moru V. Jithabai Amirbhai, (1906) 8 Bom. L. R. 613 : 4 Cr. L. J.
54: 19 A. 109 (110): Baku Tukaram , (1899) 24B. 287; Kali Charon, (1902) 24A.
256 ; KthaP mol, (1889) 13 M. 423,

(f) Keshab Mohajan, (1882) 8 C. 985 (F. B.).

14 THE INDIAN CODE .* [ CHAP. I

(4) Notification number 854 I. B., dated 16th April 1913, Gazette of India,

1913, Part I., p. 407.

(5) Notification number 457, dated 23rd April 1913, Gazette of India,

Part I., p. 427.

And the Governor-General in Council can authorise any High Court to
exercise jurisdiction by His Majesty’s Letters Patent over the Christian subjects
of His Majesty within the Native States.

Where the applicant and the three opponents lived at Surat, and tney went
to a village in the Baroda State, where one of the opponents charged the applicant
before the Baroda police with criminal breach of trust and the applicant was tried
at Vyra Court where the three opponents deposed on behalf of the prosecution
and were disbelieved and the applicant was acquitted and thereafter the Vyra
Court sanctioned the prosecution of the opponents for laying a false charge and
giving false evidence, the Bombay High Court held that the criminal proceedings
taken and the false charge made before a foreign court, viz., the Vyra Court are
not within the scope of the section (g).

Admiralty jurisdiction : — On High Seas. — The jurisdiction to try an
offence committed on the high seas is called the admiralty jurisdiction.
It is founded on the principle that a ship on the high seas is a floating island belong-
ing to the nation whose flag she is flying. It extends over all ships of a nation
that use its flag whether they be anchored or sailing, whether on the high seas or
in rivers below the bridges where the tide ebbs and flows, and where great ships
go (h). It makes no difference whether the ship is made fast to the bottom
of the river by anchor and cable, or to its side by ropes from the quay (i). It is
clear that an English ship on the high seas, out of any foreign territory,
is subject to the laws of England, and persons whether foreign or English, on board
such ship, are as much amenable to English laws as they would be on English soil (j).
Certain bonds or valuable securities were stolen from a British ocean-going merchant-
ship whilst she was lying afloat in the open river at Rotterdam in Holland, 16 or
18 miles from the sea, but within the ebb and flow of the tide, it was held that the
prisoners could be tried by the courts in England exercising admiralty jurisdic-
tion (k). In order to assume admiralty jurisdiction it is sufficient to show that
the ship sailed under the British flag and that the owners were British subjects and
oral evidence as to the position of a ship at given time is better evidence than the
production of a log book (1). '‘The place where the ship lay was in no sense the
high seas. The admiralty has never held that the waters of havens, where the
tide ebbs end flows, are properly the high seas, unless those waters are without low
water mark” (m).

A foreigner, one of the crew of a British ship, committed 'manslaughter on
board a British ship while it was in a tidal river in the empire of France. The
ship was in a part of the river where ebb and tide flows and where great ships go.
It was held that the central criminal court has jurisdiction (n). Where a man is

(g) Rambharathi Hirabharathi, (1923) 47 B. 907 : 25 Bom. L. R. 772 : 25

Cr. L. J. 333 : 77 I. C. 189 : A. I. R. (1924) Bom, 51. False evidence and false complaint
before a Foreign Court is no offence.

(h) Reg. V. Anderson , (1868) L. R. I. C. C. R. 161 : 38 L. J. M. C. 12.

(i) Allen, 1 Mood, C. C. 164.

(j) Lesley, (1860) 29 L. J. (M. C.) 97.

(k) Carr and Wilson, (1882) 10 Q. B. D. 79 — see Merchant Shipping Act, 1854 (17
and 18 Viet., c. 104, s. 106).

(l) Frank Allen , (1864) 10 Cox. 405 ; Sven Seberg, (1870) L. R. I. C. C. R. 264 ;
Adolph Bijornsen, (1865) 10 Cox. 74.

(m) 2 Hale, P. C. 12 ; R. V. Keyn, 2 Ex. D. 63, pp. 67,79.

(n) James Anderson, (1868) 11 Cox. Cr. C. 198; Emp. V. Vinayah Damodar
Savarakar (1910)35 B. 225 13 Bom. L. R. 206 ; followed in Wheeler Axl. R. (1928)
Sind 161; Jahn Bruce , (1812) 2 Leach 1809; De Sylva t (1908) 11 Bom. L. R. 221.

SEC. 4 ]

15

in the country and i$ charged before a magistrate with an offence under the
Indian Penal Code, it will not avail him to say that he was brought there
illegally from a foreign country (nl).

Jurisdiction of the High Courts of Calcutta. Madras and Bombay is the same
admiralty jurisdiction as that of the Supreme Court which they have replaced.
The admiralty jurisdiction of the Supreme Court which was originally conferred
by their respective charters, and by 33 Geo. VII, c. 52, s. 156 and 53 Geo. VII,
c. 155, s. 1 10, was that of the High Court of Admiralty as it stood on the 8th
December 1823 the date of the Letters Patent creating the Supreme Courts (o), and
was continued to the High Courts by 24 and 25 Viet., c. 104, s. 9 and by ss. 32
and 33 of the Letters Patent of 1865. The Allahabad High Court has no such
jurisdiction under its Letters Patent of 1866. But the Letters Patent of Patna and
Rangoon High Courts are to the same effect as those of Calcutta, Bombay and
Madras High Courts. Their jurisdiction in Vice-admiralty was created by Commis-
sion from the High Court of Admiralty in England, dated the 21st August 1843 (p).
Even before the passing of the Statutes 3 and 4, Will IV, c. 85, which enlarged
the Admiralty jurisdiction of England but did not extend to India, the Bombay
High Court held that its Admiralty jurisdiction was the same as that of the High
Court of Admiralty in England (q).

Mofussil Courts : — The jurisdiction to try such offences committed on
the high seas was first conferred on mofussil Courts in I860 by 23 and 24 Viet.,
c. 88, ss. 1 and 2 and subsequently enlarged by the Merchant Shipping Act in 1894
(57 and 58 Viet., c. 60) which vested all Courts with jurisdiction to try offenders
wherever they were found.

Jurisdiction of the Presidency Magistrate in Admiralty cases : — The

Presidency Magistrate of Calcutta committed to the Court of Sessions a native
Indian seaman for murder or manslaughter committed on board a British vessel
on the high seas who was brought to Calcutta under custody notwithstanding the
vessel touched, after the commission of the offence, at intermediate ports in the
course of the voyage, held that the High Court has jurisdiction under ss. 684 and
686 of the Merchant Shipping Act, (57 and 58 Viet., c. 60) to try such cases and
held further that the offence should be tried, and the charge framed under the
English Law, but the procedure at the trial and the sentence must be regulated by
the law in India (r). The Madras High Court has recently held a contrary view,
viz., that a Court in British India has jurisdiction under s. 1 of 12 and 13 Viet., c. 96
(which has been made applicable to India by s. 1 of 23 and 24 Viet., c. 88, as well
as by s. 686 of the Merchant Shipping Act) to try a British subject for an offence
committed during voyage in a British ship (s).

Procedure in Admiralty cases : — The Calcutta High Court held that in
prosecuting a British subject for an offence committed on board a British ship
upon the high seas, accused must be charged with the offence under English law
and that the punishment must be according to English law but the trial must be
according to the procedure of the Indian Court (r). But the Bombay High Court
held that the rule laid down in Regina V. Elmstone , (7 Bom. H., C. R. c. 89) that
English and not Indian law was applicable to offences committed on the high seas
is altered by Statute 37 and 38, Viet., c. 27, which provides that such offences shall

(nl) Benito Lopez Christian Sattler , (1885) 7 Cox. 431.

(o) The Asia , (1868)6 Bom. H. C. (O. C. J.) 64 ; Bardot V. The Augusta, (1873)
10 Bom. H. C. 110 ; Contra , The Portugal , (1870) 6 B. L. R. 323 (330, 331).

(p) The Colonial Courts of Admiralty Act, 1890 (53 and 64 Viet. c. 27).

(q) The Asia, (1868) 6. Bom H. C. (O. C. J.) 64.

(r) Salimullah, (1912) 39 C. 487, differing from Shaikh Abdul Rahaman, (1889)
14 B. 227 and Chief Officer of S. 5. "Mushtari" (1901) 25 B. 636.

(s) Se*Mdai Vang nan, (1927) M. W. N. 276 : 102 I. C. 35 1 : . I.R. (1927) M.
688, following Chief Officer of S. S. “Mushtari.” (1901) 25 B 6.6 3A-

16

[CHAP. I

THE INDIAN PENAL CODE

be tried and punished according to local law (t). This view was confirmed in a Full
Bench decision of the Court of Lower Burma ». The Calcutta High Court in
a later decision (r) upheld the view enunciated by Sir Barnes Peacock, C. J., in
Thompson s case (v).

Piracy: — Piracy is of two kinds: 0) P tract/ jure gentium , and (2) Piracy
which is defined by the statute law of England. As Sir Charles Hedges in his charge
to the Grand Jury said : “ Now piracy is only a sea-term for robbery, piracy
being a robbery committed within the jurisdiction of the Admiralty. If any man
be assaulted within that jurisdiction, and his ship or goods violently taken away
without legal authority, this is robbery and piracy. If the mariners of a ship shall
violently dispossess the master and afterwads carry away the ship itself, or any of
the goods, or tackle, apparel or furniture, with a felonious intention, in any place
where the Lord Admiral hath, or pretends to have jurisdiction, this is also robbery
and piracy. The intention will in these cases, appear by considering the end for
which the act was committed ; and the end will be known, if the evidence shall shew
you what hath been done

The King of England hath not only an Empire and Sovereignty over the British
seas, but also an undoubted jurisdiction and power, in concurrency with other
princes and states for the punishment of all piracies and robberies at sea, in the
most remote parts of the World, so that if any person whatsoever, native or
foreigner, Christian or Infidel or Pagan, with whose country we have no war, with
whom we hold trade and correspondence and are in amity shall be robbed or spoiled
in the narrow seas, the Mediterranean, Atlantic, Southern or any other seas, or the
branches thereof, either on this or the other side of the line, it is * Piracy ’ within
the limits of your inquiry and the cognizance of this Court” (w). And the same
view of course holds, whether the dispossession is by mariners or passengers (x).
According to Coke, all rivers (in England) until they flow past the furthest point of
law, next the sea are within the jurisdiction of the courts of common law and not
of the court of Admiralty, but in order that the Admiralty courts will have juris-
diction the offence must be proved to have been committed upon some part of the
sea (y). The Penal Code took the place of English criminal law in the presidency
towns. Piracy has been dealt with in several statutes since 1536. Formerly
abettors of piracy on land were not triable as pirates, but as the law has been
amended, the abettors on land stand in the same footing as pirates on the high seas(z).

Foreigners how far liable for offences committed in British India : —
Where a prisoner was indicted at the Central Criminal Court of England for
mandaughter — he was a foreigner and in command of a foreign ship passing within
three miles of shore of England on a voyage to a foreign port ; and whilst within
that distance his ship ran into a British ship and sank her, whereby a passenger
on board the latter ship was drowned, held that the Central Criminal Court had
no jurisdiction to try the prisoner for the offence charged (a). The accused, a
subject of the State of Junaghad, was charged with the offence of attempt to
murder on board a ship belonging to him on the high seas some eighteen miles
off the coast of the Kenara District. He was tried for the offence by the first

(t) Shaikh Abdul Rahaman , (1889) 14 B. 227 ; The Chief Officer of
5. S. “Mushtarif (1901) 25 B 630.

(u) Po Thaung, (1915) 6. L. B. R. 221 (F. B.) : 4 Bur. L. J. 58 : 12 Cr. L. J.
198: 10 1. C. 705.

(v) (180) 1 Beng. L. R. (O. Cr. J. 1) 487 (1912).

(w) Rex V. Joseph Dawson , (1696) 13 State Trials 641.

(x) See Attorney-General for Hongkong V. Kwok-a-Sing t (1873) L. R. 5. P. C.
179, 199 : 12 Cox 565-— see Kerron Blackstone Vol. IV, p. 58 (4th edition).

(y) Coke, 154 vide Archbold, 23rd edition; 641, 11 and 12 William III,

c. 7* s. 10. ^

(*) Geo. I., q. 24. s. 3; Admiralty case, 0 Coke Reprint, Pt. XIII, p. 61.

(a) Franconia Coco or K$yn t (1876) 2 Ex. D. 63,

SEC. 5] ilNfROQUCTXG^ n

class magistrate of Karwar. The High Court of Bombay held that the magistrate
had no jurisdiction to try the accused (b).

The offender is not punishable if at the time the offence was committed,
he was not within the territory of British India (c).

Abetment by foreigner of offence in British India When a foreigner
starts the train of his crime in foreign territory and perfects and completes his
offence within British limits he is triable by the British court when found within
its jurisdiction (d), but a subject of a Native State cannot be tried in British India
for abetment within that State of an offence committed in British India (e).

Charge : — If the person is liable to punishment by virtue of this section,
the charge should be as follows : —

That you, on or about the day of , then being a servant of and

in the service of His Majesty the King Emperor at within the dominions of

a Native Prince in India did, etc.

If the offence be committed within the Admiralty jurisdiction then the charge
should run as follows : —

That you, on or about the day of , then being a British subject

on board the British ship did, an act, etc., on the high seas, and within

the jurisdiction of the Court, etc.

5 . Nothing in this Act is intended to repeal, vary, suspend,
or affect any of the provisions of the Statute
b.‘SKL,b”„X'A«: 3 &4 William IV, Chapter 85, or of any
Act of Parliament passed after that Statute
in anywise affecting the East India Company, or the said
territories, or the inhabitants thereof ; or any of the provisions of
any Act for punishing mutiny and desertion of officers, soldiers
or air-men in the service of Her Majesty * * * * or of any
special or local law.

Legislative Changes : — The words “or of the East India Company, or of
any Act for the Government of the East India Company/ 1 were repealed by the
Repealing Act, 1870 (XIV of 1870). A similar saving as to special and local laws
was enacted in the Indian Penal Code Amendment Act, 1870 (XXIII of 1870),
s. 15. The Words “or airmen” were inserted by Act X of 1927.

Scope : — This section acts as a saving clause to s. 2.

It seems, section 2 has either no operation at all, or else it repealed all
existing penal enactments in force on the date from which the Code was to come
into operation. Then the effect of section 5 was to qualifty this general repeal
and to declare that, notwithstanding it, offences defined by special and local laws
should continue to be punishable as theretofore. It may be that it was not com-
petent to the local legislature to repeal or affect the provisions of some of the
laws enumerated in s. 5 ; but that is immaterial so far as special and local laws are

(b) Punja Guni , (1917) 42 B. 234 : 19 Cr. L. J. 337 : 20 Bom. L. R. 98 : 44
I. C. 449.

(c) Mussamat Kishen Kocr , (1878) P. R. No. 20 of 1878 ; Roda (1889) P. R.
No. 30 of 1889.

(d) Choota Lai Babur, (1912) 36 B. 624 : 14 Bom. L. R. 147,

(e) Pirf&i, (1873) 10 Bom. H. C. R. 356 ; Raj BahgdumJlfr'T*

* * 'Balwant Singh, (1918) P. R. No. 31 of 1918. ' ftOR

society

A

18

THE INDIAN PENAL CODE

[ CHAP. I

concerned, for clearly they might have been, and but for s. 5 would as I conceive,
have been repealed. If therefore a person were required to ascertain from the
Penal Code what acts or omissions are punishable in British India as offences he
would properly answer that it appeared from Ss. 2 and 5 that all acts or omissions
contrary to the provisions of the Code itself or the provisions of special and local
laws and some other laws enumerated in s. 5, and those alone and none
others were punishable as offences (f).

Special law: — defined in s. 41, infra .

Local law: — defined in s. 42, infra.

Conflict between the provisions of the Penal Code and special law: —

When the provisions of the Indian Penal Codefare not in conflict with those of the
special law an effect may therefore be given to both (g), but when there is conflict,
special or local law will not apply (h). A person cannot both be punished under
both the special law and the Penal Code for the same offence (i).

Saving of Common Law Rights : — TheJCode has ot affected the Common
Law rights. It has been decided by the Judicial Committee that the High Courts
in the Indian Presidencies are superior Courts of Records (j). But on matters speci-
fically dealt with by the Penal Code, the English Common Law is not applicable (k).

The types of law covered by the phrase 44 Nothing or of any special or local

law" are such as the Opium Act, and not a vast system like the English Common
Law (1).

Punishment for Contempt : — The Allahabad High Court in the Full
Bench decision of Shanthanand V. BamdeVanand (m) has held that no power to
punish for contempt of an inferior court now exists independently of the Penal
Code and the Contempt of Courts Act of 1926, the same High Court held in
Ganesh's case and other cases ( n ).

The Rangoon High Court (o) has^held that the principle of the Common
Law of ^ England which has been held by the Privy Council in Surendra Nath
Banerjees case (j) to be applicable to the jurisdiction of the High Courts in India
and is clearly binding on the Courts in India. The Bombay High Court in
V alkrishna Govind Kulkarms case (p) and the Lahore High Court (q) held the
same view. The contrary view (r) seems to have been superseded by s. 2 of the
Contempt of Courts Act.

(f) Per Collet, J. in Anon, 3 M. H. C. R. (App. 11). •

(g) Queen V. Ramchandrappa, (1883) 6 M. 249 (250).

(h) Bayna, (1906) 8 Bom. L. R. 414, Contra Chandiprasad V. Abdur Rahaman ,

(1898) 22 0.131. **

{[) Rup Dev. (1913) 11. A. L. J. 340 ; Hxtsan Ali, (1873) 5 N. W. P. 47 ; Kuloda
Prosad Majumdar , (1906) 11 C. W. N. 100 : 5 C. L. J. 47.

(j) Surendra Nath Bancrji V. The Chief Justice and Judges of the High Court in
Bengal (1883) 10 I. A. 171 : 10 C. 109.

(k) Satish Chandra Chakrabarty V. Ramdayal De , 48 c. 388 (S. B.) ; Tiruvangada

MudaliV. Tripurasundari Ammal, 49 M. 728 (F. B.) ; Bai Santa V. Umrao Amir ,
60 B. 162 (F. B.). 1

(l) Me. Donnell, (1925) 3 R. 524.

(m) A. I. R. (1930) A. 225 (F. B.).

(n) Ganesh Shankar Vidyarthi, (1926) 26. A. L. J. 1307 (F. B.) : (1926) 48 A

711 : 24 A. L. J. 819: A. I. R. (1926) A. 623. V 1

(o) Ibrahim Mamoojee Parehh, (1926) 4 R. 257.

(p) 46 B. 592: 24 Bom. L. R. 16.

(q) Habib. (1925) 6. L. 528; In the matter of Bakhari , 9 L. L. J. 465 (F. B)

(r) Legal Remembrancer V. Moti Lai Chose, (1913) 41 C. 173 ; Moti Lai Ghose -
(1917) 45 C. 169; M. K. Gandhi, (1920) Bom. L. R. 368; In re Sat9ttbodha Ram
chandra , (1922) 47 B. 76; Purshottam V. Navnitlal (1925), 50 B. 275.

SECS. 6-7 ]

GENERAL EXPLANATIONS

19

CHAPTER II.

General Explanations.

“ This chapter is for the most part an elaborate interpretation clause. It
is a key to the interpretation of the whole Code. The leading terms are being
defined and explained, and the meanings thus announced are steadily adhered to
throughout the subsequent chapters. Sir James Stephen suggests that the object
of this chapter is to prevent captious Judges from wilfully misunderstanding the
Code and cunning criminals from evading its provisions. It does not provide
explanations for all cases indiscriminately, but only for those cases where difficulty
may arise, when it will be necessary to refer to this chapter to see what the meaning
of the Code is*' (s).

6. Throughout this Code every definition of an offence,
every penal provision and every illustration

Definitions m the G f ever y sUc fi definition or penal provision.
Code to be understood ini l l , . , r

subject to exceptions, shall be understood subject to the excep-
tions contained in the Chapter entitled
“ General Exceptions,” though those exceptions are not repeated
in such definition, penal provision or illustration.

Illustrations.

(a) The sections in this Code, which contain definitions of offences, do not ex-
press that a child under seven years of age cannot commit such offences ; but the
definitions are to be understood subject to the general exception which provides that
nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z who has committed mur-
der. Here A is not guilty of the offence of wrongful confinement ; for he was bound
by law to apprehend Z , and therefore the case falls within the general exception
which provides that “nothing is an offence which is done by a person who is bound
by law to do it."

The object df this section is to see whether any offence is covered by the
'general exceptions/

Illustrations furnish some indication of the presumable intention of the
Legislature (t). Their Lordships of the Judicial Committee have held that
illustrations appended to a section should be accepted, if that case can be done as
being both of relevance and value in the construction of the text, and it would
require a *very special case to warrant their rejection on the ground of their
assumed repugnanacy to the section themselves (u). Illustrations in the acts of
the Legislature ought never be allowed to contain the plain meaning of the section
but they purely serve to explain the meaning of the section (v).

7 . Every expression which is explained in any part of this

Sense of expression » USed . “» e L Ver V P? rt <>f this Code in

once explained. conformity with the explanation.

This section is in accordance with the Common Law maxim “ Inclusio unius
est exclmio alterius " i.e., the inclusion of one is the exclusion of another. “ To

(s) (1860) Proceedings of the Legislative Council, p. 1261.

(t) Fakirappa, (1800) 15 B. 401 (406).

(u) Mohammed Syodol Arifin V. Yeshoi Cork , (1016) 19 Bom. L. R. 157 (P. C.);
Dvbiy Sahai*V . Sameshi Lai , (1875) I. A. 34.

(v) Koylash Chandra Ghose V. Sonaton Chand Barooie , (1881) 7 C. 132.

20

THE INDIAN PENAL CODE

[ CHAP. II

say that every expression shall have a particular meaning everywhere is to say it
shall have no other meaning anywhere. If the words, taken grammatically, have a
definite, certain and unequivocal meaning, if they constitute a perfectly complete
expression susceptible grammatically of that one unequivocal meaning and of that
only, then however absurd and pernicious the consequence?, that meaning is to
be followed. If however the expression does not include the complete thought
of the Legislature or if the words are susceptible of several meanings we are to seek
in other parts of the same statute or in other statutes certainly in those in pari
materia with this the one of the several possible meanings which ought to be put
upon the words” (w).

Sir Ashutosh Mookerjee, J. has held in construing s. 243 infra that the term
“ possession " has to be interpreted in the light of s. 27 which by virtue of s. 7 is
applicable wherever the term is used in the Code (x).

8. The pronoun “ he ” and its derivatives are used of any

Gender. person, whether male or female.

9. Unless the contrary appears from the context, words

Number importing the singular number include the

.Number, plural number, and words importing the

plural number include the singular number.

Analogous law : — See s. 13, General Clauses Act (X of 1897), which is to the
following effect : —

" In all Acts of the Governor-General in Council and Regulations unless there
is anything repugnant in the subject or context —

(1) Words importing fhc Masculine Gender shall include females ; and

(2) Words in tlie Singular shall include the Plural and vice versa/*

Include ; — The word is enlarging and not restrictive and does not mean
that the words must apply exclusively to that which they are to include (y).

10. The word “ man ” denotes a male human being of

• Man". any age : the word “ woman ” denotes a

“ Woman”. female human being of any age.

11. The word “ person ” includes any Company or

• Person”. Association or body of persons, whether

incorporated or not.

Under the General Clauses Act (X of 1897) “petson” includes any Company
or Association or body of individuals whether incorporated or not (z).

The word “ person ” ordinarily means any human being, whether a man,
woman or child. It is used in that sense in the following sections (a). As Lord
Blackburn held : “ The word 'p er son’ may well include both a natural person
(a human being), and an artificial person (a corporation) (b)." But the word

(w) Per Holloway J.. in 3 M. H. C. R. (App.) II.

(x) Emp. V. Fateh Chanel Agarwalla, 44 C. 477 (F. B.) : 21 C. W. N. 33: 24
C. L. J. 400.

(y) Ex parte Furguson, L. R. 6 Q. B. 291 ; The Gauntlet, L. R. 3 A. and E 388.

(*) Act X of 1897 s. 3 (39).

(a) Ss. 56, 73, 84, 87, 100, 105, 114, 137, 139, 141, 149, 151, 153, 157 169
170, 192, 210, 220, 225, 278, 297, 490, 491, 497, and Chapter XVI.

(b) Pharmaceutical Society V. London and Provincial Supply Association • (1880)
5 App. cases 867 (869).

“ Man".

" Woman

Person".

SECS. 12-17 ]

GENERAL EXPLANATIONS

21

‘person’ in s. 6 of the Legal Practitioners Act having regard to the expressions
‘him’ and ‘his’ in s. 7 of that Act has been held to exclude a woman (c).

12 . The word “ public ” includes any class of the public

" Public”. or any community.

13 . The word “ Queen ” denotes the Sovereign for the time
being of the United Kingdom of Great
Britain and Ireland.

“ Queen".

British India"

14 . The words “ servant of the Queen ” denote all officers

or servants continued, appointed or em-
Q»ccu” Vant ot tl,c ployed in India by or under the authority
of the said Statute 21 & 22 Victoria, Chapter
106 entitled “ An Act for the better government of India,” or
by or under the authority of the Government of India or any
Government.

Statute 21 and 22 vide c. 106 has been repealed by the Government of India
Act, 1915 (5 and 6, Geo. V., c. 61).

15 . The words ” British India ” denote the territories
which are or may become vested in Her
Majesty by the said Statutes 21 & 22 Vic-
toria, Chapter 106, entitled “ An Act for the better government
of India.” * * * *

L egi sl at ive Changes The words “except the Settlement of Prince
of Wales’ Island, Singapore and Malacca ” were repealed by the Repealing and
Amending Act, 1891 (12 of 1891).

“ British In«ti« ” This definition of ‘ British India ’ is practically the same
as that given in the General Clauses Act of 1868, but that Act has been superseded
and repealed by the General Clauses Act of 1897 where it has been defined as
meaning “ All territories and places within Her Majesty’s dominions which are
for the time being governed by Her Majesty through the Governor-General of
India or through any Governor or other officer subordinate to the Governor-
General of India.” In view of s. 7 of the Penal Code the definition of ‘ British
India ' as given here is not affected by that as given in the General Clauses Act,

1897 (Act X of 1897).

16 . The words “ Government of India ” denote the
'■ Government of Governor-General of India m Council, or

India.” during the absence of the Governor-General

of India from his Council, the President in Council, or the
Governor-General of India alone, as regards powers which may
be lawfully exercised by them or him respectively.

17. The word “ Government ” denotes the person or per-
sons authorized by law to administer

Government.” Government in any part of

executive

British India.

(c) In the matter of Regina Gnha > (1916) 21 C. W. N, 74 Qti).

22

THE INDIAN PENAL CODE

[ CHAP. II

“ Government ” . — Under the General Clauses Act of 1897, s. 3 (29), Govern-
ment shall include the local Government as well as the Government of India.

The word ' Government ' in ss. 255 to 263 and 263-A infra notwithstanding
the definition in this section shall be deemed to include the person or persons
authorised by law to administer executive Government in any part of India, and also
in any part of Her Majesty’s dominions or in any foreign country, vide
s. 263-A (4) infra.

Meaning of ‘Government* : — The expression “ Government established
by law in British India ” means the various Governments constituted by the
Statutes relating to the Government of India now consolidated into the Govern-
ment of India Act (5 and 6 Geo. V., c. 61) and denotes the person or persons
authorised by law to administer Executive Government in any part of British
India (d).

18. The word “ Presidency ” denotes the territories sub-

. presidency." ject to the Government of a Presidency.

19. The word “ Judge ” denotes not only every person

"judge” who is officially designated as a Judge but.

Jl also every person who is empowered by

law to give, in any legal proceeding, civil or criminal, a definitive
judgment, or a judgment which, if not appealed against, would
be definitive, or a judgment which, if confirmed by some other
authority, would be definitive, or

who is one of a body of persons, which body of persons is
empowered by law to give such a judgment.

Illustrations .

(a) A collector exercising jurisdiction in a suit, under Act X of 1859 is a Judge.

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has
power to sentence, to fine or imprisonment with or without appeal, is a Judge.

(c) A member of a panchayat which has power, under Regulation VII, 1816,
of the Madias Code, to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has
power only to commit for trial to another Court, is not a Judge.

Meaning of 4 Judge 9 : — The word ‘Judge* in its ordinary and normal
sense means a judge of the High Court (e). But by subsequent Acts it has come to
mean the presiding officer of a Court — see definition in Civil Procedure Code,
s. 2 (8), Act V. of 1908.

A magistrate is a “judge** within the meaning of this section read with s. 4 (2),
Cr. P. Code, only when he is exercising jurisdiction in a suit or proceeding.
Therefore an affidavit sworn before a magistrate cannot be used in the High
Court ff).

Legal Proceeding — means a proceeding regulated or prescribed by law
in which a judicial decision may or must be given (g).

(d) Balgangadhar Tilak, (1916) 19 Bom. L. R. 211 (270, 271): 18 Cr. L. J. 567 :
39 I. C. 807 ; Satya Ranjan Bakshi, (1929) 56 C. 1085 ; Khitish Chandur Ray Chaud-
hury, (1952) 36 C. W N. 510,

(e) Elsley V. Kirby, 12 L. J. Ex. 97.

(f) Ramckavdra Modah , (1925) 5 P. 110: 27 Cr. L. J. 499: A. I. R. (1926)

P. 214, distinguishing Dinabundhu Nundy V. Sm. Hurrymati Dasee, (1903) 8. C. W. N.
XL. and I swat Chandra Guha , (188^ 14 C. 653. *

(g) Abhoy Naidu V* Kaniappa Chettiar , (1928) 30 Cr. L. J. 365 : A. I. R.(1929)
M. 175.

secs. 20-21 ]

GENERAL EXPLANATIONS

23

'Act X of 1859* has been modified in the United Provinces by Acts XVI II
of 1873 and II of 1901 (United Provinces Rent and Tenancy Acts), and in the
Central Provinces by the Central Province Tenancy Act (XI of 1898), in the
Chhotanagpur Division of Bengal (except as to the District of Manbhum and
the Tributary Mahals) by Beng. Act I of 1879, and in Bengal (except Calcutta the
Division of Orissa and the Scheduled Districts) by the Bengal Tenancy Act VIII
of 1885 as amended by Act IV of 1928 (B. C.).

4 Regulation VH of 1816 * : — This has been replaced by the Madras Civil
Courts Act (III of 1873).

20. The words “ Court of Justice ” denote a Judge who
,.r iiivtii-o ” i s empowered by law to act judicially alone,

J or a body of Judges which is empowered

by law to act judicially as a body, when such Judge or body of
Judges is combined judicially.

Illustration.

A panchayat acting under Regulation VII, 1816 of the Madras Code, having
power to try and determine suits, is a Court of Justice.

Court of Justice : — When the Judges are dealing with merely administrative
business they are not a Court of Justice (h). A Collector acting in appraisement
proceedings under ss. 69 and 70 of the Bengal Tenancy Act is a ‘Court* within
the meaning of s. 195 of the Code of Criminal Procedure Code (i). A Sub-
Registrar acting under s. 41 of the Registration Act, 1877, is not a Judge and there-
fore not a Court (j). But a Full Bench of the Madras High Court in Atchciyya
V. Gangayya (k) did not follow the Bombay view which considered the Sub-
Registrar s functions to be purely administrative and adhered to the view taken
in Venkatachella (1) dissented from in Tuljas case and in RamlaTs case (m) and
held that a Registrar, acting under Registration Act (III of 1877), ss. 72-75 was
a Court for the purposes of s. 195, Cr. P. Code. The Cr. P. Code of 1898 having
inserted sub-section (2) in s. 195, Atchyyas case (k) has been superseded and the
view in Tuljas case (j) and RamlaTs case (m) has been restored. A magistrate
making an inquiry under s. 144, Cr. P. Code, is acting in a stage of judicial proceed-
ing and has therefore jurisdiction to take action under s. 476, Cr. P. Code, if he is
of opinion that false evidence has been given before him (n).

Regulation VII of 1816 in 'illustration* has been repealed by the Madras
Civil Courts Act, 1873 (III of 1873) Mad. Code.

21 . The words’ “ public servant ” denote a person fall-
ubiic servant.” un< l er any of the descriptions herein-

after following, namely : —

First . — Every covenanted servant of the Queen ;

(h) Royal Aquarium and Summer and Winter Garden Society V. Parkinson
(1892) I.Q.B. 431.

(i) Chandi Charan Girt V. Gangadhar Prodhan , (1917) 45 C*. 335, following
Raghoobuns Sahay V. Kokil Singh, (1890) 17 C. 872.

(j) Tulja , (1887) 12 B. 36 (42).

(k) (1891) 15 M. 138 (F. B.).

(l) 10. M. 154.

(m) (1893) 15 A. 141.

(t\) Tirunarasinha Chari, ,.(|895) 19 M. 18.

24

THE INDIAN PENAL CODE

[ CHAP. II

Second. — Every Commissioned Officer in the Military or
Naval or Air Forces of the Queen while serving under the
Government of India or any Government ;

Third .—Every Judge ;

Fourth. — Every officer of a Court of Justice whose duty
it is, as such officr, to investigate or report on any matter of
law or fact, or to make, authenticate or keep any document,
or to take charge or dispose of any property, or to execute any
judicial process, or to administer any oath, or to interpret, or to
preserve order in the Court ; and every person specially authorized
by a Court of Justice to perform any of such duties ;

Fifth. — Every uryman, assessor or member of a panchayat
assisting a Court of Justice or public servant

Sixth. — Every arbitrary or other person to whom any cause
or matter, has been referred for decision or report by any Court
of Justice, or by any other competent public authority ;

Seventh. — Every person who holds any office by virtue of
which he is empowered to place or keep any person in confine-
ment ;

Eighth. — Every officer of Government whose duty it is, as
such officer, to prevent offences, to give information of offences,
to bring offenders to justice, or to protect the public health, safety
or convenience ;

Ninth. — Every officer whose duty it is, as such officer, to
take, receive, keep or expend any property on behalf of Govern-
ment, or to make any survey, assessment or contract on behalf
of Government, or to execute any revenue-process or to investi-
gate, or to report, on any matter affecting the pecuniary interests
of Government, or to make, authenticate or keep any document
relating to the pecuniary interests of Government, or W prevent
the infraction of any law for the protection of the pecuniary
interests of Government, and every officer in the service or pay
of Government or remunerated by fees or commission for the
performance of any public duty ;

Tenth. — Every officer whose duty it is, as such officer, to take,
receive, keep or expend any property, to make any survey or
assessment or to levy any rate or tax for any secular common
purpose of any village, town or district, or to make, authenticate
or keep any document for the ascertaining of the rights of the
people of any village, town or district.

Illustration .

A Municipal Commissioner is a public servant ’ ' *

SEC. 21 ]

GENERAL EXPLANATIONS

26

Eleventh. — Every person who holds any office in virtue of
which he is empowered to prepare, publish, maintain or revise
an electoral roll or to conduct an election or part of an election.

Explanation 1 .— Persons falling under any of the above
descriptions are public servants, whether appointed by the Govern-
ment or not.

Explanation 2. — Wherever the words “public servant” occur,
they shall be understood of every person who is in actual
possession of the situation of a public servant, whatever legal
defect there may be in his right to hold that situation.

Explanation 3. — The word “ election ” denotes an election 1 ;
for the purpose of selecting members of any legislative, municipal i
or other public authority of whatever character, the method of
selection to which is by, or under, any law prescribed as by
election.

Legislative Changes : — For the words * or Naval ’ in the clause beginning
with the word ‘ second ’, the words ‘Naval or Air’ were substituted by the Repealing
and Amending Act X of 1927.

* Public Servant’ : — This section does not define ' public servant ’ but
describes them simply by enumeration. It does not necessarily mean that the
servant must be a stipendiary one as was pointed out by Straight, J. : “I am of
opinion that any person whether receiving pay or not, who chooses to take upon
himself duties and responsibilities belonging to the position of a public servant
and performs those duties, and accepts those responsibilities and is recognised as
filling the position of a public servant, must be regarded as one ; and that it does
not lie in his mouth to say subsequently that notwithstanding his performance of
public duties, and the recognition by others of such performance, he is not a public
servant. If such a contention were allowed and the question whether a man was
a public servant were to depend wholly upon the test of his receiving or not re-
ceiving a salary, very great mischief and difficulty might arise in a country like this
where numerous persons are engaged in the performance of public duties without
pay" (o).

A public servant is a servant who has to discharge some public duty (p).

An unpaid apprentice of Government is not a public servant within the
meaning of s. 21 (q). *

Clause (1) : — Covenanted Servant of the Queen is treated synonymously
with the Indian Civil Service (r).

Clause (3) : — A Judge is defined in s. 19. It was held in an earlier decision
of the Madras High Court that all Judges are public servants but all public ser-
vants are not Judges (s). A village munsiff is a ‘Judge ’ and a sanction for his pro-
secution is necessary under s. 197, Cr. P. Code (t).

(0) Parmeswar Dutt t (1886) 8 A. 201.

(p) Nizamuddin , (1900) 28 C. 344.

(q) Mohendra Prosad , (1910) 16 C. W. N. 319 : 12 Cr. L. J. 117 : 9 1. C. 698.

(r) Indian Civil Service Act, 1861, s. 2 (24 and 26 Viet. c. 64).

(s) Anon , (1871) 6 M. H. C. R. Art. XXII.

(1) In re Pera Subba Naidu, (1928) 66 M. L. J. 600.

26 THE INDIAN PENAL CODE [ CHAP. II

Clause (4) : — Persons executing warrants of arrest (u) or any judicial pro-
cess (v) are public servants under this clause.

Every officer of a Court of Justice, whose duty it is to execute any judicial
process, is a public officer (w).

Clause (6) : — A person employed by parties to settle a dispute is not
necessarily a public servant (x). To bring a case under this clause there must be
some cause or matter for decision or report by any Court of justice or by any other
competent public authority enabled to deal with the matter in dispute between the
parties (y).

Clause (7) — refers to policemen and jailers. A convict warder comes under
this clause (z).

Clause (8) A person appointed by the Government Solicitor with the
approval of the Government to act as a prosecutor in the Calcutta Police Court, is
a public servant (a), police Patels (b), Village Watchmen (c), Vaccinators (d),
officers of the Society tor the Prevention of Cruelty to Animals appointed under
the Bengal Police Act V of 1861 (e), are public servants under this clause. A
village Chaukiciar is not an officer of the Government arid as such is not a public
servant within the meaning of this clause (f).

Clause (9) — deals with miscellaneous officers of Government. The term
' officer * means a person employed to exercise to some extent, and in certain
circumstances a delegated function of Government. He must be either himself
armed with some authority or representative character, or his duties are imme-
diately auxiliary to those of some one who is so armed (g). This narrow con-
struction was not given effect to by the Calcutta High Court which held that an
officer in the service of Government is one who is appointed to some office for the
performance of some public duty (h). Such officer may include a peon (i) but
a carter employed by Government is not a public servant within the meaning of
this section (j). A supernumerary peon of the Collector's Court who received
no pay but was x enumerated by fees has been held to be a public servant (k). A
Manager of the Court of Wards is a public servant according to the view of the
Allahabad High Court (1), but not according to the ruling of the Calcutta High
Court (m). An Income-tax Collector has been held to be a public servant (n).

(u) Shco Proqash Tuvan V. lihoop Prosad Narain Fathak, (1805) 22 C. 759;

Abdd Karim V. Pullen t (1884) 0 A. 385, followed ixi (1895) 22 C. 759.

(v) Dharam Chand I. a!, (1895) 22 C. 596.

(w) Hhvgai Dafadat, (1808) 2 Feng. L. R. 21 (F. B.).

(\) Sunder Maj hi, (J*J05) 30 C. 1084.

(y.t Dtbi Din, (1886) A. VV. N. 295.

(z) Kaliich'tnd Moitra, (1867) 7 \V. U. (Cr.) 99, foUpWed in Saifiin Rasul, (1924)
26 Bum. L. K.207 (208).

(a) Hutto Kristo Das. (1878) 3 C. 497.

(b) Appaji It in Yadairoo, (1890) 21 B. 5)7.

(c) Sidhu. (1904) 20 A. 542.

(d) I Weir 127 (129).

(c) V pen dr a Kumar Chose, (1900) 3 C. L. J. 475 ; Nataraja Pillai , (1922) 46

M. 90 : 10 L. VV. 794 : 31 M. L. T. 309 : 23 Cr. L. J. 736 : 69 I. C. 64 (1922) M. W. N.

851: A. 1. R. (1923) Mad. 188 (1).

(f) Arjan Mat, (1922) 3 Lah. 440 : 23 Cr. L. J. 709 : 69 I. C. 437 : A. I. R.
(1923) Lvh 200.

(g) Ramiirav [i’fajitav, (1875) 12 Bom. H. C. R. 1.

(h) N azimuddin V. Emp. (1900) 28 C. 344, (346).

(i) JLH.

(j) Nachimultu, H883) 7 M. 18.

(k) Ram Krishna Das , (1871) 7 B. L. R. 446.

(l) Mathura Prashad, (1898) 21 A. 127.

(m) Nazimuddin, (1900) 28 C, 344,

(a) In r* Punam Chand Manihlal , (1914) 38 B, 642,

SEC. 21]

GENERAL EXPLANATIONS

27

The mere fact that a person is in the employ of, or pay, or service of, the
Government is not enough to constitute him a public servant within the meaning
of cl. (9) of this section. He must also be an “officer,” i.e., holier of some office (o).
A Public Works Department ‘ Lascar* (p) and a Conservancy Overseer of the
Calcutta Corporation (q) are public servants.

Clause (10) — deals with officers of Local Boards, Municipality, District
Board, Sanitary Boards, or other local bodies. Municipal servants under the
Bombay Municipal Act have been held to be public servants (r). So also is a
Chairman of the Union Panchayet (s) ; and a Local Board Sarkar are public
servants (t) ; a Tax Collector in a Municipality (u) ; a Patwari of a village (v)
and a Municipal Chairman (w), clerk in the Cess Collection Department of the
Municipality (x) are public servants.

The following persons have been held to be not ‘ public servants*: — A police-
officer under suspension (y), a servant of the bank receiving a sum of
money on account of the Government (z), an unpaid apprentice in the office of
a Sub-Registrar (a).

Illustration. — A member of a taluk Board is a public servant within the
meaning of this illustration (b).

Clause (II) — was inserted by s. 2 of the Indian Election Offences and
Inquiries Act, 1920 (XXXIX of 1920),

Explanation (2) : — Any person, whether receiving pay or not, who chooses
to take upon himself dulies and responsibilities belonging to the position of a public
servant, and performs those duties, and accepts those responsibilities, is re-
cognised as filling the position of a public servant (c).

Explanation (3) — was added by s. 2 of the Indian Election Offences and
Inquiries Act, 1920 (XXXIX of 1920).

"Statutory Public Servants’ : — A Sanitary Inspector is a public servant
(d); so also is a Municipal Inspector (e).

(o) Ahad Shah, (1017) P. L. R. No. of 1918: P. R. No. 18 of 1918 (Cr.) :

P. W. R. No. 28 of 1918 (Cr.) : 19 Cr. 1. J. 488: 45 T. C 150.

(p) Public Prosecutor V. Anaa Natch*, (1925) 4 8 M. 8(57.

('j) S. C. Nitndy V. Corporation of Calcutta, (19.30) 34 C. W. N. 449: A. I. R.
(1930) Cal. 605 (1).

(r) Ezekiel, (1904) ft Bom. L. R. 54; Babulal Kanavalal . (1908) 33 B. 384.

(s) Shaikh Abdul Kadir, (1910) M. W. N. 384 : 17 Cr. L. ]. 108: 33 I. C. 648.

(1.) Addaita Bhuia V. Kali Das Dr, (1907) 12 C. W. N. 06.

(u) Government Advocate of Bchar and Orissa V. Ganga Prosad, (1922) I P.
423: 3 P. L. T. 559: 75 I. C. 719: A. I. R. (1922) p. 532.

(v) l.ocal Government V. Madho Patwari, (1922) 23 Cr. L. J. 557: 68. 1. C.
157 : A. T. R. (1923) Nag 140.

(w) Ramnarain Sharvna V. Parshanath Sen, ( 1027> 32 C. \ v . N. 1035 : A. I. R
(1928) C. 516, distinguishing Mohammad Ycasin , 52 C. 431 : 29 C. W. N. 650:
A. I. R. (1925) C. 516, see Nun ha Panahxdu V. Ravalu Sulba Rao, (1927) 52 M. 695:
(1928) M. W. N. 801 : A.* I. R. (1928) M. 115S: 54 M. L. J. 570.

(x) Babulal Kanailal , (1908) 33 B. 213 : 10. Bom. L. R. 761, following Nantam
ram Uttamram, (1869) G Tiom. II. C. R, Cr. C. 64.

(v) Dinanath , (1872) 8 B. L. R. App. 58.

(k) Tn re. Madanmohan, (1877) 4 C. 376.

(a) Mohendra Prosad, (1910) 15 C. W. N. 319 : 9 I. C. 698; Bhagabati Sakai,
(1905) 32 C. 664.

(b) In re. Shiva Shanharam Pillat , 56 M. L. J. 157 (161).

(c) Paramcswar Dal, (1886) 8 A. 201 ; Ramkrishna Das, 16 W R. (Cr.) 27
7 Bens. L. R. 446.

M) Tinivangada Mudali, (1898) 21 M. 428,
fe) R am as w ami, (1889) 13 M. 131,

28

THE INDIAN PENAL CODE

[CHAP. II

22 .

'* Moveable • property ’ 1 .

The words “ moveable property °

Include corporeal property

are intended to
of every des-
cription, except land and things attached to
the earth or permanently fastened to anything which is attached
to the earth.

The term * moveable property * has been defined here for the purpose of the
Code. As has been remarked by the Privy Council : “ The essence of the Code is
to be exhaustive on the matters in respect of which it declares the law, and it is not
the province of a Judge to disregard or go outside the letter of the enactment
according to its true construction*' (0.

Analogous Law : — “ Moveable property " shall mean property of every
description, except immoveable property (g). According to the Indian Registra-
tion Act IV of 1877, s. 3 “ moveable property ’* includes standing timber, growing
crops and grass, fruit upon and juice in trees, and property of every other descrip-
tion except immoveable property (h).

* Land and things attached to the earth': — It has been held by the

Madras High Court that it was not the intention of the framers of the
Indian Penal Code to reproduce the English Law of Larceny (i) and it was further
held therein that stones, when quarried and carried away are *' things severed
fr jm the earth " within the meaning of section 378, (explanation) and are
M moveable property *’ within the meaning of this section and as such are capable
of being the subject of theft. It has been held by the Bombay High Court that
‘earth* when severed from the soil is moveable property (j).

The Allahabad High Court has held that it is doubtful whether a letter
addressed to W which was handed by a postman to him and which was sub-
sequently taken possession of by the owner of the house who attempted to file the
same in a divorce case comes within the meaning of “ moveable property ” as
defined in the Code (k).

23. “ Wrongful gain ” is gain by unlawful means of pro-

wrongful gain”. P ert ,y to which the person gaining is not
legally entitled.

Wrongful loss ” is tbe loss by unlawful means of property
to which the person losing it is legally
entitled.

Wrongful loss'

A person is said to gain wrongfully when such person retains
„ . . , wrongfully, as well as when such person

Tammg wrong uiiy. acquires wrongfully. A person is said to

Losing wrongfully lose wrongfully when such person is wrong-

fully kept out of any property, as w r ell as
when such person is wrongfully deprived of property.

(f) Gokul Mandar V. Padmavand Singh, (1002) 29 C. 707.

(g) S. 2 (0), General Clauses Act of 1868 ; S. 3 (34) Act X of 1897.

(h) Act IV of 1877 as repealed by Act XVI of 1008, s. 3.

(i) Surivenkatappaya Snstri V. Madula Venkavva, (1004) 27 M. 531 (F. B.),
overruling Katayya, (1887) 10 M. 255.

(j) Sivaratn, (1891) 15 B. 702, disapproving of Kotayya, (1887) 10 M. 225. and
following Tamtna Ghantaya , (1881) 4 M. 228,

(k) Har t *is t (1917) 40 A. 119,

SEC. 23]

GENERAL EXPLANATIONS

29

Analogous Law The term ‘wrongful gain* or ‘wrongful loss’ does not find
a place in English law where corresponding expression * malicious act ’ occurs and
a malicious act ' is an act done illegally and unreasonably and not in the exercise
of a bona fide right (1).

The word ‘ wrongful * has not been defined, but the Cods defines * illegal * in
section 43.

Wrongful gain : — The word 4 gain ’ means not only acquisition, but also
retention. It must be an acquisition or retention with the intention of appropria-
tion. Where, therefore, the accused, the pledgee of a turban, was convicted of
criminal breach of trust for using it, the Court set aside the conviction on the
ground that the deterioration of the turban by use was not a ‘ wrongful loss ’ of
property to the owner and the wrongful beneficial use of it by the pledgee was not
a wrongful gain to him. “ For either wrongful loss or gain, the property must be
lost to the owner, or the owner must be wrongfully kept out of it” (m).

Wrongful loss : — It is the antethesis of wrongful gain. When the owner
is kept out of possession with the object of depriving him of the benefit arising from
the possession even temporarily the case will come within the definition (n).
But where the owner is kept out of possession not with any such intention but
only with the object of causing him trouble in the sense of mere mental anxiety,
and with the ultimate intention of restoring the thing to him without exacting or
expecting any recompense, it is difficult to say that the detention amounts to
causing wrongful loss in any sense (o). In Nabi Bush's case (o) the accused was
charged by his master with having committed theft of a box, and stated that he
had removed the box and left it concealed in the cowshed to give a lesson to his
master.

When a cow is found trespassing on a field and doing damages to crops, it is
no offence for the owner of the field to seize the cow and detain it for a period
less than 24 hours with a promise to release the cow on payment of compensation
not exceeding the pound charges which would have to be paid had the cow been
impounded (p).

The definition of “ dishonestly ” in the Indian Penal Code has reference to the
definition of the expression M wrongful loss ” and “ wrongful gain ” in this section (q).

# to which the person losing it is legally entitled* — show clearly
what is meant by the words 44 wrongful loss ” as applied to the owners of the
cattle (r).

•

Causing injury to neighbour’s wall by digging a trench in his own

land s — ‘‘ ‘Wrongful lo^s* as defined by this section as being the loss by unlawful
means of property to which the person losing it is legally entitled.” The question
therefore is. Is it unlawful to do something on your own land without trespassing on
your neighbour’s land ? The Madras High Court has answered in the negative (s).

Temporary loss : — Wrongful loss covers temporary ‘wrongful loss’ and
wrongful gain covers temporary ‘wrongful gain’ (t).

(l) Tenner, 7 L. J. (O. S.) M. C. 79.

(m) (1868) 3 M. H. C. R. (App.) 6.

(n) Nabi Buksh , (1897) 26 C. 416.

(o) (t8<>7) 25 C. 416.

(p) Pamratan (1921) 23 Cr. L. J. 611 : 68 I. C. 47 : A. I. R. (1923) Nag. 64 (2).

(q) Dick, (1914) 12 A. L. J. 1258 (1261) : 16 Cr. L. J. 49: 26 I C. 641.

(r) Aradhun Muvdal v. Nvan Khan Takadfer, (1875) 24 W. R. (Cr.) 7.

(s) In re Athi Aiyar 1922 23 Cr. L. J. 607: 68 I. C, 831.

ftt) Local Government, C. P. V. Madho Patwari, (1922) 23 Cr. L. J. 657 : 68

I. C. 157 : A. I. R. (1923) Nag. 146.

30

THE INDIAN PENAL CODE

[CHAP. II

Drainage-water-mischief Wrongful loss under this section is defined
as loss by unlawful meins of property to which the person losing it is legally
entitled. Where drain ige water from higher grounds and other Government
tank flows in a defined channel above an embankment the ov rflow from which
flowed without diminution and the accused was charged under s. 425 for raising
the embankment, held that he had no intention to cause wrongful loss (u).

Forcible seizure of cattle has been held to be wrongful loss (v).

24. Whoever does anything with the intention of causing
. Dishoi^tiy \ wrongful gain to one person or wrongful
loss to another person, is said to do that
thing “ dishonestly/’

Tin word ‘ dishonestly * appears in the definition of theft (s. 378), extortion
(s. 383), robbery (s. 390), criminal misappropriation (s. 403), criminal breach of
trust (s. 403), mid receiving stolen property (V. 41 1). It has been used Jointly with
4 fraudulently defined in the nest section in mmy offences such as the definition
of cheating (s. 415), forgery (s. 433) and counterfeiting coins (ss. 246, 247),
dishonestly miking false claim in Court (s. 23)). The definition of ‘ dishonestly*
in s. 24. I. P. C.. is not an exhaustive definition (w).

tf witb the intention of causing wrongful gain* The word ‘intent * by
its etymology seems to have a metaphorical allusion to archery, and implies “ aim **
and thus connotes not a casual or merely possible result— foreseen perhaps as a
not improbable incident, but not desired — but rather connotes the one object for
which the effort is made — and thuc has reference to what has been called the
dominant motive, and without which the action would not have been taken (x).
Gain must be taken to mem material gain (y). Where the intention of the accused
was not to came wrongful loss to the complainant or wrongful gain to themselves
but to recover a kettle sent for repair to the co nohinant after lapse of a reasonable
time, held , the accused did not act dishonestly (z).

Test of Legal Dishonesty : — “The only possible way of discussing a man’s
intention is by looking at what he actually did, and by considering what must have
appeared to him at the time the natural consequence of his conduct” (a). In
construing Ss. 24 and 23 of the Penal Code, although the act might have caused loss,
the question is whether the intention of the accused was to defraud (b). In Rejina
V. Lovett , Littledale, J, said, With respect to the intent of the defendant, a man
must be taken to intend the natural consequences of what he has done” (c). The
necessity for giving effect to this principle has been well pointed out in the case of
Lakshman (d). Lovett's case (c), and Lakshmans case (d), has bee n * followed in
Sellamulhu SeVcirian V. Pallamuf.hu Kuruppans case (e).

It is one thing to entertain a certain intention and another to have the know**
ledge that one’s act may lead to a certain result (f).

(u) Kanda Kamnla Venkaita Reddi V. Kumari Rac, (1913) M. W. N. 179: H

Cr. L. J. 209* 19 I. C. 30 5.

(v) Preonath Berner jee. (1865) 5 W. R. (Cr.) OS.

(w) Baju Jha, (192S) 9 P. L. T. 800: A. T. R. (19°9' P. 60.

(x) Per Bitty. J., in Bhagwant V. Kedari (1900) 25 B. 202 (226) see als*

Giridharilal, (1886) 8 A. 653. V 1

(v) Nga Ba Thein , (1922) 4 U. B. R. 174 : A. I. R. (1925) R. 9.

(z) Judah, (1925) 53 C. 174: 29 C. W. N. 1011 : A. I. R. (1926) C. 464.

(a) Stephen’s History of Criminal Law, Vol. IT, p. Ml.

(b) Giridhari Lai, (1886) 8 A. 653 ot p. 662.

(c) (1839) 9 C. and P. 462 (486).

(d) (1902) 26 B. 558 (561).

(e) (1910) 35 M. 186.

(f) RayApadayachi, (1896) 19 M. 240 : (Case under s. 448).

SEC. 25 ]

GENERAL EXPLANATIONS

31

Where a person fabricated forged receipts in lieu of genuine receipts which
was not done ‘ dishonestly or fraudulently * he was acquitted (g).

Where a person lawfully entitled to possess arms and ammunitions signed the
prescribed certificate of purchase of the same in the name of another with an
address not his own, and thereby deceived the gunsmith and the Government
and defeated the object of the certificate, held that he committed forgefy, his act
having been done “ fraudulently " if not “ dishonestly” (h). The making of false
entries in a book or register by any person in order to conceal a previous
fraudulent or dishonest act falls withirf the purview of s. 477-A inasmuch
as the intention is to defraud (i). A person who by falsely pretending to be the
winner of a lottery prize dishonestly induced the Indian Telegraphic Association
(lottery officials) to pay the prize to him does not cause “ wrongful loss *' to the
rightful owner of the ticket but causes “ wrongful gain '* to himself by obtaining
by false pretence what he is not “ legally entitled to " and he acts dishonestly within
the meaning of this section (j). Where the accused used as genuine two certificates
purporting to be signed by a public servant with the object of obtaining a situation
in the police-force at Poona, the Bombay High Court held that the act of the
accused came within the terms of f: 4o3 and was indeed the precise illustration(^)
given in the Code under s. 464 and a$ such the accused was guilty of offences
under Ss. 463 and 471 (k).

Temporary loss : — Within the meaning of this section, wrongful loss
covers temporary wrongful loss, and wrongful gain covers temporary wrongful
gain (1).

11 Fraudulently".

A person is said to do a thing fraudulently if he dees
„ that thing with intent to defraud but not
:ntly • otherwise.

The word * fraudulently * has been used in seveial offences, mainly in
offences against public justice (Ss. 206, 203, 210), offences relating to weights and
measures (Ss. 264-266) and counterfeit coins and stamps (Ss. 242, 243, 246, 232, 253,
261-263), making a false document (s. 464), using as genuine a forged document
(Ss. 471 and 474), fraudulent cancellation of will (s. 477).

4 intent to defraud * : — The word ‘ defraud * has not been defined in the
Code. Sir James Stephen observes: “There has always been a great reluctance
amongst lawyers to attempt to define ‘ fraud/ and this is not unnatural when we
consider the different kinds of conduct to which the word is applied in connection
with different branches of liw and especially in connection with the equitable
branch of if. I shall not attempt to construct a definition which will meet every
case which might be suggested, but there is little danger in saying that whenever the
word 4 fraud * or 4 intent to defraud * or 4 fraudulently * occur in the definition of
a crime, two elements are at least essential to the commission of a crime : namely,
first , deceit or an intention to deceive or in some cases, mere secrecy ; and secondly ,
either actual injury or possible injury or an intent to expose some person either to
actual injury or to a risk of possible injury, by means of that deceit or secrecy.
The intent, I may add, is very seldom the only or principal intention entertained
by the fraudulent person, whose principal object in nearly every case is his own

(g) Sheo Dayal, (1885) 7 A. 459.

(h) Causlev, (1915) 43 C. 421, following 7?^. V. Toshuk, (1846) I Den. C. C.
R. 492 ; Dhunum Kazee, (1882) 9 C. 53: Abbas Ali t (1897) 25 C. 512 (F. 13.).

(i) Rashbeharv Das, (1908) 35 C. 450.

(j) Nga Tha Bin, (1914) 15 Cr. L. J. 555.

(k) Khandu Singh , (1896) 22 B. 768.

(11 Local Government , C. P. V. Madho Patwari , (1922) 23 Cr. L. J. 557 : 68
I. C. 157: A. I. R. (1923) Nag. 146.

82

THE INDIAN PENAL CODE

[ CHAP, n

advantage. The injurious deception usually intended only as a means to an end,
though this, as 1 have already explained, does not prevent it from being inten-
tional A practically conclusive test as to the fraudulent

character of a deception for criminal purposes is this : Did the author of the deceit
derive any advantage from it which he could not have had if the truth had been
known? * If so, it is hardly possible that that advantage should not have had an
equivalent in loss, or risk of loss of some one else ; and if so, there was fraud.
In practice, people hardly ever intentionally deceive each other in matters of business
for a purpose which ii not fraudulent* * (m).

Where the accused affixed his signature to a kabuliat , which was not required
by law to be attested by witnesses, after its execution and registration, below the
names of attesting witnesses but without putting a date or alleging actual presence
at the time of its execution, held , that such act did not fall within the first clause of
s. 464 of the Penal Code as it was not done ‘dishonesty or fraudulently* within
the meaning of Ss. 24 and 25. The expression ‘intent to defraud* implies conduct
coupled with an intention to deceive and thereby to injure. The word ‘defraud ’
involves two conceptions, viz., deceit and injury to the person deceived, that is,
infringement of some legal right possessed by him, but not necessarily deprivation
of property (n). But a restricted interpretation was given by Banerji, J., in the
case of Mohammad Saecd Khan (o) where, held , that when there is an intention to
deceive and by means of the deceit to obtain an advantage, there is fraud.
Page, J, presiding over a case in the Sessions Court on the original side (p)
accepted this restricted int rpretation of Banerjee, J, in Saeed's case (o). The
Calcutta High Court in the case of Ahmed Ali t (q) followed the decision in
Surer.dra's case (n). It seems that the view taken in Mohit's case (p) following
Saecd* s case (o) is incorrect. A somewhat wider interpretation has been given
by Le Blanche, J., “ By fraud is meant an intention to deceive whether it be
from any expectation of advantage to the party himself or from ill-will towards
the other is immaterial" (r). The Lahore High Court has held that * intent to
defraud * in s. 25 means intent to deceive in such a manner as to expose any
person to loss or the risk of loss and loss means not only a deprivation of
property, but covers the infringement of any right possessed by a person (s).
A very vvpdfe interpretation has been given by the High Court of Calcutta
in the Full Bench decision in Abbas Ali where it has been held : “The word
‘ defraud * is of a double meaning in the sense that it either may or may not
imply deprivation (of property) and it is not defined in the Code, and is not, so
far as we are aware, to be found in the Code, except in section 25, its meaning must
be sought’ by a consideration of the context in which the word ' fraudulently ’
is used. The word ‘fraudulently’ is used in Ss. 471 and 464 tQgether with
the word * dishonestly * and presumably in a sense not covered by that word. If
however, it be held that ‘ fraudulently * implies deprivation either actual or intended,
then apparently that word would perform no function which would have been
fully discharged by the word ‘ dishonestly * and its use would be mere surplusage.
So far as such a consideration carries any weight it obviously inclines in favour of the

(m) Stephen’s History of Criminal Law, Vol. II, p. 121, cited Per Banerji, J.,
in Muhammad Sated Khan, (1898) 21 A. 113 (115) see al so Balkrishna Vaman , (1913)
15 Bom. L. R. 708 (713).

(n) , Suvendra Nath Ghose, (1910) 38 C. 75 at p. 89 and 90 : 14 C. W. N. 1076,
followed in Ahmed Ali, (1925) 42 C. L. J. 215 and Harjiv an Valii , (1925) 50 B. 174.

(o) (1898) 21 A. 113 (115).

(p) Mohit Kumar Mukherjee, (1925) 52 C. 881: A. I. R. (1926) C. 89.

(q) (1925) 42 C. L. J. 215 (218).

(r) Haycroft V. Creasy , (1810) 2 East 92 (108), followed in Vithal Narayan,
(1886) 13 B. 51 on, followed in Lalit Mohan Sarkar, (1894) 22 C. 313 (322), Rashbehary,
(1908) 35 C. 460.

(s) Robinson , (1921) 22 Cr. L. J. 681: 63 I. C. 617.

SEC. 25 ]

GENERAL EXPLANATIONS

33

view that the word 1 fraudulently ’ should not be confined to transactions of which
deprivation of property forms a part” (t). It is sufficient if the doing of a thing
is intended to defraud some one even without his ultimately acquiring unlawful
gain or wrongful loss (u). Where a person in the course of a suit brought against
him to gain possession of property, uses a forged document for the purpose of
supporting his title, though there was no necessity for it, held such user was
fraudulent (v).

On an application by the Karta of a joint Hindu family in his representative
character, to withdraw certain surplus sale proceeds standing to their credit in their
treasury, the Collector, after inspecting the signatures, issued a bill in their favour
for the amount due, which they withdrew, held , that upon the facts the offence of
cheating was not made out. The word 4 defraud * which is not defined in the Code
may or may not imply deprivation, actual or intended (w). As Maule, J., said :
“ There may be an intention to defraud without the power or opportunity to de-
fraud It is not necessary that any person should be in a situation to be

defrauded” (x).

Every sane person of the age of discretion is presumed to intend the natural
and probable consequences of his acts (y).

Evidence of similar acts : — In order to prove fraudulent intent, acts other
than those charged, but of a like nature, may be given in evidence (z), but evidence
of a series of similar transactions which are not the offence charged can only be
used as evidence of the intention of the person who forged a document and not as
evidence of forgery (a). A connection must be shown to exist between the acts
which are the subject of the indictment and the acts sought to be proved. The
fact that the subsequent acts show that the defendant has committed an offence dis-
tinct from that which is charged in the indictment is not sufficient to make evidence
of the subsequent act inadmissible if a connection is shown to exist between the
two transactions (b). Acts committed after the offence alleged are admissible in
evidence to prove intention, provided there is a nexus or connection between
them (c). On a charge of cheating, evidence of instances of similar but uncon-
nected transactions with other persons, before and after the date of the offence
charged is admissible under Ss. 14 and 15 of the Evidence Act, not to establish
the factum of offence but to prove that the transaction in issue was one of a system-
atic series of frauds and that the intention of the accused on the particular occa-
sion in question was dishonest and fraudulent (d).

In England it has been held that evidence of a similar transaction may be
evidence of fraudulent intention although the evidence by itself does not establish
that the accused was guilty pf any offence (e).

(t) (1800) 25 C. 512 (F. B.).

(u) In re Shivananda Mudali , (1925) 27 C r. I.. J. 994 : 99 I. C. 850: A. I. R.
(1920) M. 1072.

(v) Dhannm Kazce, (1882) 9 C. 53 (60) ; Govinda Mai f (1895) P. R. No. 21 of
1895, see also Lalit Mohan Sarkar , (1894) 22 C. 313 (323) ; Valkrishna Vaman, (1913)
15 Bom. L. R. 703; Kcdarnath Chatter jee . (1901) 5 C. W. N. 897.

(w) Babur am Rai t (1905) 32 C. 775 : I. C. L. J. 469, see also Balkriskna Vaman ,
(1913) 15 Bom. L. R. 708.

(x) Charles Nash , (1852) I Den. C. C. 493 (499).

(y) Jaipal Kunbi, (1921) 23 Cr. L. J. 313; 66 I. C. 665: A. I. R. (1922) Nag.

141.

(z) Vajiram, (1891) 16 Bom. 414.

(a) Krishna Gobindo Pal , (1915) 43 C. 783 : 20 C. W. N. 262.

(b) Reg. V. Smith, (1905) 20 Cox. 804.

(c) Reg . V. Rhodes , (1899) I. Q. B. 77.

(d) Devendra Proshad, (1908) 36 C. 573.

{ e) Reg. V. OUis. (1900) 2 Q. B. 758.

34

THE INDIAN PENAL CODE

[CHAP. II

Evidence to prove that the accused had on other occasions cheated other
persons by making proposals of much the same kind to them and by telling them
similar stories, was held admissible (f). The Bombay High Court has held that
such evidence is inadmissible to prove the existence of another connected crime.
West, J., observed : “ Where a person charges another with having forged a
promissory note, and denies having ever executed any promissory note at all, the
evidence that a note, similar to the one alleged to be forged was in fact executed by
that person is not admissible, nor even a judgment founded upon that would
be so** (g).

26.

A person is said to have 4 reason to believe 99 a thing
if he has sufficient cause to believe that
thing but not otherwise.

Reason to believe”

The expression * reason to believe ’ has been used in Ss. 41 1 to 414, 489-B,
489-D.

Reason to believe : — Where a creditor receiving payment had knowledge
of circumstances from which ordinary men of business would have concluded that
his debtor would be liable to meet his liabilities, held, that in law a person ‘ knows ’
a thing not only when he has an accurate knowledge of it, but when he is in pos-
session of circumstances showing that the thing exists (h). The word * believe *
is much stronger than the word ‘ suspect * in s. 414 (i). In an offence of possession
of stolen property the question is whether the accused knew or had reason to believe
that the property was stolen. Mere suspicion is not enough (j). In a case where
the accused was charged under Ss. 489-B and 489-C, I. P. C., held , that the
omission of the judge to refer the jury to the meaning of the phrase ‘ reason to
believe ’ as stated in s. 26, was not such a misdirection as to vitiate the trial (k).

27. When property is in. the possession of a person's
„ . , wife, clerk or servant, on account of that

sion of wife, clerk or person it is in that persons possession
*e rvant within the meaning of the Code.

Explanation . — A person employed temporarily or on a
particular occasion in the capacity of a clerk or servant, is a clerk
or servant within the meaning of this section.

Analogous Law : — In English criminal law 4 possession * is distinguished
from * custody * (1).

Scope : — The term 4 possession ’ has to be interpreted in the light of s. 27
which by virtue of s. 7 is applicable wherever the term is used in the Code. This
section abolishes the distinction recognised in English law between 4 possession '
and ‘custody* (m).

Article found in a common room of a joint family house ! — Although
an invariable rule was not laid down but the Judges in Sangamlal's case (n) laid

(f) Yakub Ali, (1916) 39 A. 273, following Abdul Wahid Khan, (1911) 34 A. 93.
{*) Reg. V. Parbhudas, 11 Bom. H. C. R. 90.

(h) National Bank of Australia V. Morris , (1892) A. C. 287 (291).

(i) Rango Titnaji , (1882) 6 B. 402.

(j) Kunniappa Naieker, (1913) M. W. N. 696, following Rango Titnaji, (1882)
6 B. 402.

(k) Ramcharitar Singh, (1927) 7 P. 16.

(l) Stephen's ‘Criminal Law,' 210, 211.

(m) Per Mukherji J., in Fateh Chand A gar wall a, (1916) 44 C. 477 (499, 600) ;
*1 C. WV N. 33 (51) : 24 C. L. J. 400 (421).

(n) (1803) 15 A. 129. followed in Dulla Singh, A. I. R. (1028) L. 272.

GENERAL EXPLANATIONS

35

SEC. 28 ]

down that in all such cases where it is sought to establish that possession and
control are with some member of the family other than the managing member,
there must be good and clear evidence of the fact before such a conclusion can be
arrived.

The mere fact that illicit liquor is found in a room occupied by the son for
sleeping doses not make him guilty. Legal possession remains with his father
the master of the house (o).

Wife, clerk, or servant, etc. : — A permanent mistress may be regarded as
wife. When a man furnishes a house for his mistress’s * occupation * he may
reasonably be presumed to be in possession of all articles therein which can reason-
ably be inferred to belong to him, or to Le in possession of his mistress on his behalf.
So long as he has control over her he has possession of the things in the mistress's
possession (p). In order to constitute an offence under s. 243 (fraudulent posses-
sion of counterfeit King’s coin) it is essential to prove that at the time the accused
became possessed of the coin he knew it to be counterfeit whether he was in pos-
session of the coin himself , or his wife, clerk, or servant, was in possession of the
coin in his own account (q).

Possession of wife : — The possession of a house on account of her husband
is the possession of the husband within the meaning of this section (r).

Possession of servant : — The Allahabad High Court has held that under
this section the possession of the servant must be on account of his master to make
the master liable (s).

28 . A person is said to “ counterfeit ” who causes one
“Counterfeit” thing to resemble another thing, intending

by means of that resemblance to practise
deception, or knowing it to be likely that deception will thereby
be practised.

Explanation 1. — It is not essential to counterfeiting that
the imitation should be exact.

Explanation 2. — When a person causes one thing to re-
semble another thing, and the resemblance is such that a person
might be deceived thereby, it shall be presumed, until the
contrary is proved, that the person so causing the one thing to
resemble the other thing intended by means of that resem-
blance to practise deception or knew it to be likely that deception
would thereby be practised.

Legislative changes : — The Explanations were substituted for the original
explanations by the Metal Token Act, 1889 (I of 1889) s. 9.

The word ’counterfeit ’ occurs in offences in relation to coin provided in
Chapter XII.

(o) Bittijha, A. I. R. (1930) Lah. 884.

(p) Banu/arilal, (1914) P. R. No. 20 of 1914 : 22 1. C. 748; Bisweswar Singh,
V. Bhola, (1914) : 15 Cr. L. J. 172, 97 P. L. R. of 1914.

(q) Fateh Chand Agarwalla, (1916) 44 C. 477 (499) : 21 C. W. N. 33 : 24

C. L. J. 400. _ „

(r) Anant Ram. (1921) P. W. R. No. 8 of 1921 : 22 Cr. L. J. 118: 59 I. C.

560.

(s) Ckottey, (1922) 20 A. L. J. 865 : 23 Cr. L. J. 729 : 69 I. C. 467 : A. I. R.
(1923) A. 33.

36

THE INDIAN PENAL CODE

[ CHAP. II

Thing 5 — This ‘thing* docs not necessarily postulate a coin. It may be a
piece of metal or a trademark.

Where the trademark alleged to be counterfeited was that of a Company,
(Calvert) who were the manufacturers of a kind of tooth-powder sold in boxes,
and it appeared that apart from two points of difference, viz., for the name of F.C.
Calvert, had been substituted the name of Paul and for the registered trademark
which consisted of four arrows in a circle, had been substituted the word 'Dantina,*
the imitation was most marked and completed, held , that it clearly came within the
purview of the definition of ‘ counterfeit ’ in this section (t). The accused was in
possession of certain goods which bore the complainant’s trademark and it was
found that the manufacturers of the goods in Japan had by mistake either put the
complainant’s trademark or had forwarded the goods to a wrong party from where
the accused had purchased them in good faith, held , the mark was not counterfeit
as defined in s. 28 (u).

In order to constitute the offence defined by s. 231 (Counterfeit coin) it is not
necessary that the counterfeit coin should be made with the primary intention of
its being passed as genuine ; it is sufficient if the resemblance to genuine coin is
so close that it is capable of being passed as such as contained in Explanation 2 of
this section (v).

29. The word " document ” denotes any matter expressed
- Document or described upon any substance by means

of letters, figures or marks, or by more than
one of those means, intended to be used, or which may be used,
evidence of that matter.

as

Explanation 1 . — It is immaterial by what means or upon
what substance the letters, figures or marks are formed, or
whether the evidence is intended for, or may be used in, a
Court of Justice, or not.

Illustration,

A writing expressing the terms of a contract, which may be used as evidence
of the contract, is a document.

A cheque upon a banker is a document.

A power-of-attomey is a document.

A map or plan which is intended to be used or which may be used as evidence
is a document.

A writing containing directions or instructions is a document.

Explanation 2 . — Whatever is expressed by means of letters,
figures or marks as explained by mercantile or other usage, shall
be deemed to be expressed by such letters, figures or marks within
the meaning of this section, although the same may be not
actually expressed.

Illustration.

A writes his name on the back of a bill of exchange payable to his order. The
meaning of the endorsement, as explained by mercantile usage, is that the bill is to

(t) Nilmony Nag V, Durga Pado Banerji, (1015) 10 C. W. N. 967.

(u) Syon Shceman V. Solomon. (1025) 4 R. 10, following Motilal V. Kanhailal
Dass, (1015) 32 C. 900.

(v) Qadir Baksh, (1007) 30 A. 03.

sec. 30 ]

GENERAL EXPLANATIONS

37

be paid to the holder. The endorsement is a document, and must be construed in
the same manner as if the words "pay to the holder” or words to that effect had been
written over the signature.

Legislative changes : — The explanations were substituted by Act I of 1889,

s. 9 .

The expression ‘ document * occurs in Ss. 167, 175, 192, 204, 464 and 479.
The definition of 4 document * in the English criminal law is narrower than it
is under the Indian Penal Code (w). The definition of 4 document * in the Code
differs from the definition of * writing # in the English criminal law. According
to the English law the term * document * applies to the material on which words
are written, whereas it applies here not to the material but to the matter written.

In England it has been held that an avouchmenl or declaration, whether written
or printed, of the character or quality of a chattel is not a document, which if false
would be a forgery. So it is said that the writing of a false signature of an artist's
name to pass it off as a work of the artist (x), or the imitation of a trademark on a
wrapper enclosing spurious goods (y) would not be documents which, if false,
would be forgeries.

Analogous law : — The General Clauses Act (X of 1897) s. 3 (16) defines —
“ Document * shall include any matter written, expressed or described upon any
substance by means of letters, figures or marks or by more than one of those means,
which is intended to be used, or which may be used, for the purpose of recording
that matter."

The Indian Evidence Act (Act I of 1872) s. 3 defines that a ‘ document * shall
include any matter expressed or described upon any substance by means of letters,
figures or marks, or by one of those means intended to be used, or which may
be used for the purpose of recording that matter.

The simple making of a false document has been held by the Calcutta High
Court to constitute the offence of forgery and the gist of the definition of 4 docu-
ment * lies in the words * intended to be used as evidence of that matter* (z).

Where an agreement in writing which purported to be entered into between
five persons was signed by only two of them, the Madras High Court held that
although it was not signed by all the parties it fulfilled the requirements of the
definition of a document as contemplated by this section (a).

The Bombay High Court has held that 4 letters * imprinted on trees and
intended to be evidence that the trees had been passed by the Forest Rangers, and
so could be removed from the place where they were lying in the forest, would be a
4 document ’ within the meaning of this section (b).

1 Valuable security”.

30. The words “ valuable security ” denote a document
"Which is, or purports to be, a document
whereby any legal right is created, extended,
transferred, restricted, extinguished or released, or whereby any
person acknowledges that he lies under legal liability, or has not
a certain legal right.

Illustration .

A writes his name on the back of a bill of exchange. As the effect of this endorse-
ment is to transfer the right to the bill to any person who may become the lawful
holder of it, the endorsement is a "valuable security.”

(w) A. V. Joseph , (1924) 3 R. 11.

(x) Thomas Closs, (1858) Dears & B. 460.

(y) John Smith, (1858) 27 L. J. (M. C.) 226.

4 (z) Sheetfait Ally , (1808) 10 W. R. (Cr.) 61 : 2 B. L. R. 12.

(a) Ramaswami Aiyar , (1917) 41 M. 589.

(b) Krishtappa Khandappa , (1925) 27 Bom. L. R. 599; A. I. R. (1926) 327;

38 THE INDIAN PENAL CODE [ CHAP. II

The term * valuable security * means a document of value, i. e. f a document
which creates or extinguishes legal rights. This term has been used in Ss. 329-331,
347,348, 420, 467 and 477.

Whether a cancelled instrument is a * valuable security ’ s— ' The Law

Commissioners wrote : " Sir H. Seaton asks : Would not a cancelled instrument be a
valuable security under this clause ? We think not ; for an instrument available
for the purpose for which it was made is clearly what the clause intended ; a
cencelled instrument, therefore, though by the cancelling of it a legal right may
be extinguished, inasmuch as the instrument upon which such right depended is
thereby voided, does not fall within its scope*' (c).

* which is or purports to be * :~The use of the words 4 which is, or purports
to be ’ indicatp that a document, which, upon certain evidence being given, may
be held to be invalid, but on the face of it creates, or purports to create a right in
immovable property, although a decree could not be passed upon the document,
is contemplated within the purview of this section (d).

An unstamped deed is a valuable security though being unstamped, it may not
be admissible in evidence (e), but a document the registration of which was refused
does not on that account cease to be a valuable security for it purports to be a
valuable security (f).

Valuable Security : — An unstamped document which is not strictly ad-
missible in evidence does not prevent its being ‘ valuable security \ A having
had certain transactions with B wrote out a rough account showing his indebtedness
to B and signed the total. The paper was not stamped which was presented by
B to A demanding the total. A paid a part only and after an altercation tore up
the paper, held , that the act of tearing up of the paper constituted the offence of
destroying a valuable security (g). A settlement of accounts though not signed
by any person and did not contain a promise to pay (h), a deed of divorce (i), a
kabulyat (j), a transit pass (k), a hundi (1), and a counterfoil of a paying-in-slip,
which purports to be an acknowledgment of a receipt of a sum of money by the
Bank (m) have been held to be valuable securities.

Two documents were found in the possession of the accused, each bearing a
signature which purported to be that of one Bindhyachal, but which in fact was a
forged signature. One document was intended to be filled up as a promissory note,
the other as a receipt, but the spaces for particulars of the amount, the name of the
person in whose favour the document was executed, the date and place of execution
and the rate of interest were not filled in ; a one-anna stamp was affixed to each
but it was not cancelled in any way, held , that these documents purported to be
* valuable securities * (n). An argeement in writing which purported to be
entered into between five persons, was signed by only two of them, it was altered

(c) First Report.

(d) Ram lhirakh Pathak, (1925) 48 A. 140 (143) : 23 A. L. 1 900 • 26

Cr. L. J. 1617: A. I. R. (1927) A. 57. J

(e) (1873) 7 M. H. C. R (App.) xxvi Ramaswami, (1888' 12 M. 148 Jdu
Jolah, (1917) 3 V. L. J. 386: 19 Cr. L. J. 709 : 46 I. C. 293 '

(f) Kashi Nath Naik, (1897) 25 C. 207.

(g) Ramaswami, (1888) 12 M. 148.

(h) Kapalavavaya Saraya, (1864) 2 M. H. C. R. 247

(i) Aztmuddin, (I860) 11 W. R 15.

(j) (1866) 6 W. R. Cr. I,. 2; Nasiruddin, (1883) A. W. N. 59.

(k) Superintendent and Legal Remembrancer, Bengal V. Paul at Ram Mudi 110381

69 C. 1233 : 55 C. L. J. 349. ’ ' '

(l) Lekraj, (1910) 1\ W. R. No. 56 of 1910.

(m) Turner, (1924) 29 C. W. N. 868 : 26 Cr. L. J. 304 : A. 1. R.(1926) C. 426

(n) Jawahir Thakur. (1916) 38 A. 430 ; 14 A. L. J. 643 : 17 Cr. L. J !03 • 34

1. C. 315. , J

SECS. 31 - 32 ]

GENERAL EXPLANATIONS

39

by the addition of some material terms by the accused who was one of the two
executants without the consent or knowledge of the other executant and was not
signed by the other parties to the agreement. The accused was in possession of the
instrument which was altered by him, held , the accused was guilty of the offence
of forgery of a valuable security under s. 467 or s. 474, I. P. C. The instrument,
though not signed by all the parties thereto, fulfilled the requirements of this
section (o).

The following have been held not to be valuable securities s— The

copy of a lease (p), a sanad granting a title (q), are not valuable securities. An
acknowledgment of the receipt of a postal parcel is not a valuable security (r). It
is simply evidence that a parcel of some sort was delivered but cannot operate as
a discharge of any liability (s).

31. The words “ a will ” denote any testamentary docu-

•• a will". ment.

The expression occurs in Ss. 467 and 477 of the Code.

Analogous law : — The Indian Succession Act (Act X of 1865), s. 3, defines
* will * as * the legal declaration of the intention of the testator with respect to his
property which he desi.es to be carried into effect after his death/

The General Clauses Act (Act X of 1897), s. 3 (57) defines it to include a
Codicil and every writing making a voluntary posthumous disposition of pro-
perty.

32. In every part of this Code, except where a contrary
Words referring to intention appears from the context, words
acts include 6 iu^gaf omis- which refer to acts done extend also to illegal
sions - omissions.

Scope : — This section provides that in every part of the Code, except where
a contrary intention appears from the context, words which refer to acts done,
extend also to illegal omissions (t).

Illegal omuaion : — The illegal omission or neglect must, no doubt, be such
as to have an active effect conducing to the result, as a link in the chain of facts from
which an, intention to bring about the result may be inferred (u). When the law
imposes a duty to act, an illegal omission to act renders a person liable to punish-
ment. A policeman tortures a person for the purpose of extorting a confession ;
another policeman who stands by and acquiesces in that assault for extorting the
confession is guilty of abetment (v). It was held to be no defence that the tor-
turing police-officer was his superior officer or that the torturer had been ordered
by his superior officer to commit the crime (w). As a similar duty is cast upon
the magistrate, a village magistrate who was present when certain constables were

(o) Ramaswami Aiyar, (1917) 41 M. 589.

(p) Khusal Iiiraman , (1867) 4 B. H. C. (Cr.) C. 28.

(q) Jan Mamud , 10 C. 584.

(r) Sadho Lai , (1916) 1 P. L. J. 391 : 17 Cr. L. J. 272 : 34 I. C. 992.

(s) Arura, (1913) P. L. R. No. 299 of 1913 : P. R. No. 10 of 1913 : P. W. R.
No. 30 of 1913 : 14 Cr. L. J. 436 : 20 I. C. 596.

(t) Thornothi Madathil Poker , (1866) l Weir 495

(u) Ibid .

. (v) Latif Khan, (1896) 20 B. 394.

(w) Behary Singh , (1867) 7 W. R. 3 (Cr.).

40

THE INDIAN PENAL CODE

[CHAP. II

wrongfully confining and causing hurt to a villager in order to extort a confession,
was convicted of abetment (x). But if the offence of extortion under s. 384 had
been committed in the presence of a village choukidar upon whom there is no duty
cast for preventing the commission of a crime he could not have been convicted
of abetment as the omission in his case would not be illegal (y).

Illegal : — See s. 49, infra.

33. The word " act " denotes as well a series of acts as a
44 Act “ Omission* single act : the word " omission M denotes

as well a series of omissions as a r single omission.

* Criminal act * : — By s. 33 a criminal act in s. 34 includes a series of acts,
and further, 4 act * includes omission to act, for example, an omission to inter-
fere in order to prevent a murder being done before one’s own eyes (z).

34. When a criminal act is done by several persons, in
Acts dune by several furtherance of the common intention of all,

persons in furtherance each of such persons is liable for that act
of common muntv.n. j n ^} ie same manner as if it were done by him

alone.

Sections 34, 35 and 37 must be read together and the use in section 35 of the
phrase 4 4 each of such persons who joins in the act ” and in s. 37 of the phrase
“ doing any one of these acts, either singly or jointly with any other person ” indi-
cates the true meaning of section 34 (a).

Legislative changes -This section was substituted for the original section
by the Indian Penal Code Amendment Act, 1870 (27 of 1870), s. 1. In the Indian
Penal Code as enacted in I860, s. 34, was expressed in the following terms: —
‘‘ When a criminal act is done by servernl persons, each of such persons is liable
for that act in the same manner as if it were done by him alone.” In 1870 this
sectioft was amended by the insertion of the expression 44 in furtherance of the
common intention of all”, after the word 44 persons ” and before the word “ each.”
Mr. J. F. Stephen, who was Law Member of the Council of the Governor-General
at the time the amendment was made, observed, ” so as to make the object of the
section clear.” The amendment was either suggested by the judgment of Sir
Barnes Peacock, C. J., in Queen V. Cora Chand Gope (b), as assumed by Mah-
mood, J. f in Dharam Rai (c) or by the judgment of Sir James Colvile in Ganesh
Singh's case (d).

«

Scope : — This section does not create a new offence, it uses the expression
4 criminal act \ and formulates a principle of liability.(e).

S. 34 is a rule of law and applies only when a criminal act is done by several
persons including the accused charged (0.

This section deals with the doing of separate acts, similar or diverse, by
several persons ; if all are done in furtherance of a common intention, each person

(x) Krishna Sh*tli, (1891) I Weir 50; Appanrc Hegade, (1899) 1 Weir 52.

(y) Copal Chandra V. Foolmani, (1882) 8 C. 728.

iz) Barendra Kumar Chose, (1924) 52 I. A. 40 (51) : 52 C. 197.

(a) Per Richanlson, J., in Barendra Kumar Chose, (1923) 28 C. W. N. 170 at

p. 216: 38 C. L. J. 411 (579).

(b) 5 W. R. Cr. 45.

(c) (1887) A. W. N. 236 (237).

(d) (1869) 12 W. R. 38 : 3 E. L. R. 44 (P. C.).

(e) Per Mookherji, J. in Emp. V Barendra Kumar Chose (1923) 28 C. W. N. 170
at p. 189. see also Goizullah Vs. Emp. (1920) 25 C. W. N. 24.

(f) Das tar alls, (1930) 58 C. 822.

SEC, 34]

GENERAL EXPLANATIONS

41

is liable for the result of them all, as if he had done them himself, for 4 that act * and
* the act ’ in the latter part of the section must include the whole action covered
by a 4 criminal act * in the first part, because they refer to it (g). S. 34 is intended
to provide for cases where a number of persons join together with the intention of
committing an offence ; and it is only where there is a common intention to commit
a particular act that the principle applies (h). This section does not require
proof tbat any particular accused was responsible for the commission of the
actual offence (j).

Application of s. 34 : — To justify the application of this section it is neces-
sary to prove what may be briefly described as a ‘ common act * and a 4 common
intention* . The real difficulty emerges when Courts come to decide on the concrete
facts of a given case, whether the criminal act can be said to have been done by
several persons ; in other words, what is involved in the expression 4 a criminal act
is done’ (j). This section applies only on a finding that each of the accused took
some part or other in or towards the commission of the offence (k). When how-
ever two persons were searched and on the body of one of them revolver cartridges
were found but nothing incriminating on the other, held , s. 34 has no application
and the latter is not guilty under s. 19 (g). Arms Act (1).

The law on the subject has been carefully summarised by Joel Prentiss
Bishop, an American Jurist of high repute as follows : — “ The true view is doubt-
less as follows : Every man responsible criminally for what of wrong flows directly
from his corrupt intentions ; but no man, intending wrong, is responsible for an
independent act of wrong committed by another. If one person sets in mption
the physical power of another person the former is criminally guilty for its results.
If he contemplated the result, he is answerable though it is produced in a manner
he did not contemplate. If he did not contemplate the result in kind, yet if it was
the ordinary effect of the cause, he is responsible. If he awoke into action and
indiscriminate power he is responsible. If he gave directions vaguely and in-
cautiously, and the person receiving them acted according to what might be pre-
sumed to have been his understanding of them he is responsible. But if the wrong
done was a fresh and independent wrong springing wholly from the iroind of the
doer the other is not criminal therein, merely because, when it was done, he war.
intending to be a partaker with the doer in a different wrong. These propositions
may not always be applied readily to cases arising, yet they seem to furnish the
true rules” (m). Mayne in his valuable commentary on s. 34 says : — ** Where
several persons unite with a common purpose to effect any criminal object, all who
assist in the accomplishment of that object are equally guilty, though some
may be at a distance from the spot where the crime is committed and ignorant of
what is actually done ” (n). Intention can be determined by proved facts of
the case (o).

The case-law on the subject has been exhaustively dealt with by Sir Ashutosh
Mookerji, J. in a Special Bench decision of the Calcutta High Court where cases
of Allahabad, Madras, Bombay, Lahore, Patna and Judicial Commissioners of
Central Provinces, and Burma under this section have been all cited and

(g) Barendra Kumar Chose, (1924) 52 C. 107 (211) P. C. : 29 C. W. N. 181

(189 190) : 41 C. L. J. 240 : (19251 M. \V. N. 20 : 3 Pat. L. R. 1 : 27 Bom. L. R.

1480. 26 P. L. R. 50 : 6 Pat. L. T. 169 : A I R. (1925) P. C. 1 ; Sultan (1931) 12 L. 442.

(h) Shefi Ahmed , 31 Bom. L. R. 525.

(i) Manindr a Chandra Ghosh , (1914) 4 1C. 754.

(j) Barendra Kumar Chose (1923) 28 C. W. N. 170 at p. 190 : 38 C. L. J. 411.

(k) Fazoo Khan V. Jatoo Khan , (1931) 35 C. \V. N. 463.

(l) Manmotha Nath Biswas, (1932) 37 C. W. N. 201 : A. I. R. (1933) C. 132.

(m) Bishop’s Criminal Law Vol. I. (3rd edition) 1856 s. 439, reproduced in
latest edition, New Commentaries (1892) Vol. I. Ch. XLV s. 641.

(n) Mavnc ‘Criminal Law of India’, 4th edition 1914, p. 238,

(of Nga E , A. I. R. (1931) Rang. I (F. B,).

6

42 THE INDIAN PENAL CODE [ CHAP. II

discussed (p) and the decision of Stephen, J. t in Nirmalkanto Roy V. Emp. (q)
has been overruled.

Cases decided after the Privy Council decision in Barendra Kumars case (r)
are noted here : —

Patna: — The petitioner was present when the offence abetted by him was
committed and is punishable as though he had himself committed the offence, and
thus brings the case clearly within s. 34 (s).

Bombay : — The Bombay High Court has held that the accused would be
guilty if one of them did nothing but look on while the other made the alteration (t).

Madras : — The Madras High Court in Mudru Mulapayalagadu s case (u)
has held the same view as that of the Pa^na High Court in Harihar $ case (s).

Where it is proved that certain persons unknown broke open the door, the
accused trespassed into the house and one of them seized one of the inmates by
throat and put him in instant fear of death to induce him to deliver the keys of an
iron safe and it was not clearly put to the Jury that this attempted extortion was
in furtherance of the common object of theft, and the Jury did not find that there
was any hurt, or theft as common object, held , that it did not amount to house-
breaking and that all the accused cannot be held guilty of extortion under s. 387
as being liable for the act of one of them in demanding the keys by virtue of s. 34 (v).

Lahore : — Where the culprits armed with fire-arms to commit robbery, and
death was caused by the shot of one of them in the commission thereof, held , they
were -all responsible for what was done by one of them in prosecution of the com-
mon intention of all (w).

Burma : — See the leading case of Mating Gye (x) which held that the
existence of a common intention is the sole test of joint responsibility. The
Rangoon High Court in a recent Full Bench decision (y) has held that common
intention can be determined by proved facts of the case.

Richardson, J M in Barendra Kumar s case (p) wrote a note on the history of
Ss. 34, 35, and 38 as follows : —

“ The draft Code prepared by Lord Macaulay and his colleagues was com-
pleted in 1837. It began with a Chapter bearing the same heading — ‘General
Explanations * — as the present Chapter II. Notes on various Chapters are appended
to the draft but it does not seem to have been thought necessary to furnish any
note on the ‘ General Explanations * which are in the nature of interpretation
clauses. The following observations, however, occur in two paragraphs of the
first report, dated the 23rd July 1846, of a subsequent body of Indian Law Com-
missioners : —

“ 181* There is no distinction of principals in the first degree and principals
in the second degree in the Indian Code. In the 3rd clause of the Chapter of

(p) Barendra Kumar Ghose, (923) 28 C. W. N. 170 at pp. 192, 193, 194, 195
and 196: 38 C. L. J. 411 (547-552).

(q) (1914) 41 C. 1072 : 18 C. W. N. 723.

(r) 52 I. A. 40 . 52 C. 197 : 29 C. W. N. 181 : 48 M. L. J. 543 : 23 A. L. J.

314: 26 P. L. R. 50: 85 I. C. 47.

(s) Bhandu Das, (1928) 7 P. 758; Harihar Singh, 90 I. C. 154 : A. I. R.
(1920) P. 182: 26 Cr. L. J. 1498.

(t) Vail ab hr am Ganpatram , (1925) 27 Rom. L. R. 1391 : 94 I. C. 881 : A. I. R.
(1926) B. 122.

(u) (1925) 27 Cr. L. J. 894: A I. R. (1926) M. 741.

(v) Manikala Ramanna , (1931) M. W. W. 129.

(w) Said Nur, (1925) 26 Cr. L. J. 1407 : A. I. R. (1926) L. 40 ; Kanshi 8. L. L. J.

188: 27 P. L. R. 244; Pira, (1925) 8 L. L. J. 198 : 95 I. C. 594.

(x) 1 R. 390.

SEC. 34]

GENERAL EXPLANATIONS

43

General Explanations, it is laid down once for all that wherever the causing of a
certain effect with a certain intention or with a knowledge of certain circumstances
is an offence, it is to be understood that if more persons than one jointly cause
that effect, every one of them who has that intention or that knowledge, commits
that offence/'

M 182. The definitions of substantive offences, construed with reference to
this general explanatory clause, take in all who actually cause or assist in causing
the effect which constitutes the offence without distinction of leaders or followers,
principals or subordinate agents ”

The Indian Law Commissioners go on to refer to the corresponding articles,
under the heading 4 Criminal Agency and Participation ’ of the digest of the Eng-
ligh Law prepared at a time when thoughts were entertained of codifying that
law, a project afterwards abandoned. Then in a postscript, dated 5th November
1846, there is the following paragraph : —

44 662. With reference to our observations upon the provisions of the

Code compared with the English Law of principal and accessory, we have now

to point out that Her Majesty’s Commissioners propose to abolish the

difference of punishment between principals in the first and second degrees and
accessories, and the technical distinction between principals in the first and second
degrees, and to make the difference of being an accessory a substantive offence.
By the change proposed the Law of England will correspond with the Indian Code
on these points.”

The word 44 accessory ” is here used as meaning accessory before the fact
and the reference would appear to be, or may be taken to be, to the recom-
mendations of the English Criminal Code Commissioners set out in Sir James
Stephen’s History of the Criminal Law at page 236 as follows : —

44 Every one is a party to and guilty of an indictable offence who —

44 (a) actually commit the offence, or does or omits to do any act the doing or
omission of which forms part of the offences ; or

44 (b) aids or abets any person in the actual commission of the offence, or in
any such act or omirsion as aforesaid ; or

44 (c) directly or indirectly counsels or procures any person to commit the
offence, or to do or omit any such act as aforesaid.” Cl. (a) contemplate the offend-
ers known in England as principals in the first degree, the immediate perpetrators
of the act done, cl. (b) those known as principals in the second degree or accessories
at the fact, and cl. (c) those known as accessories before the fact. In English law
principals in the first degree and principals in die second degree are equally prin-
cipals and are, as such, distinguished from accessories before thefacf .

•

44 It will be observed that in the Code as finally passed by the Legislature in
1860, cl. 3 of the original draft is drawn out into the sections 34, 35, 37 and
38. This difference of language may, of course, have affected the meaning. I
have no knowledge when or by whom the change was made, or for what reasons
the language adopted was chosen ” (p). In the case of Berendra Kumar Ghose 9 ( z)
the accused and three other persons went to the Sankharitolla Post Office armed
with fire-arms and three of them including the accused, entered the Post Office
through its south-eastern door, while the fourth man remained outside ; that of
the three who came inside, the accused stpod in the middle and the marked man on
his left and the other man on his right and that all the three demanded money of
the postmaster Amrita Lai Roy who asked 4 Kishertaka ’ whereupon all the three
levelled their weapons and fired at the Postmaster simultaneously who died. The
question before the Special Bench (p) was whether Page, J., in charging the Jury as
follows : — ‘I*

44

THE INDIAN PENAL CODE

[CHAP. II

44 Therefore in this case if these persons went to that place with a common
intention to rob the Postmaster and if necessary to kill him, and if death resulted,
each of them is liable whichever of the three fired the fatal shot '* misdirected
them. The Special Bench of the Calcutta High Court (p) answered in the negative
and this view has been confirmed on appeal by the Judicial Committee (z).

Each of such persons is liable for that act in the same manner as if it
were done by him alone . — All who participate in the commission of an
offence are severally responsible, as though the offence had been committed by
each of them acting alone and consequently each must be separately punished (a).

Distinction between S. 34 and S. 149, 1. P. C s — S.,34 speaks of "common
intention ", while s. 149 refers to “ common object. " Besides this, s. 149
comes into operation only when there is an unlawful assembly of five or more
persons as required by s. 141, and in that event it has a wider scope than s. 34 (b).
The essence of s. 34 is “ common intention M as the presence of a " com-
mon object" is requisite to establish a case under s. 148 (c). On appeal, their
Lordships of the Judicial Committee have held that “ there is a difference between
object and intention, for though the object (of an assembly of five or more per-
sons) is common, the intention of the several members may differ and indeed
may be similar only in respect that they are all unlawful, while the element of
participation in action which is the leading feature of s. 34, is replaced in s. 149
by membership of the assembly at the time of the committing of the offence.
Both sections deal with combination of persons who become punishable as sharers
in an offence. Thus they have a certain resemblance and may to rome extent
overlap, but s. 149 cannot at any rate relegate s. 34 to the position of dealing only
with joint action by the commission of identically similar criminal acts, a kind
of case which is not in itself deserving of separate treatment at all " (d). Follow-
ing the Privy Council decision the Patna High Court has held that the words
" common intention " in s. 34 have however not the same meaning as “ common
object" in Ss. 146 and 149 (e).

The Court must always determine first whether an offence has been com-
mitted by an individual and next whether s. 149 makes the participators respon-
sible and so it is with s. 34 also (f). "Common intention " can be determined by
proved facts of the case as held by the Rangoon High Court in the Full Bench
decision in Nga E*s case (g).

Section 34 does not apply to s. 397 : — This section has no application
to the provisions of s. 34 (h). « -

S. 34 does not apply to s. 398 : — This section has no application in the
construction of s. 398 (i).

(z) Barm dr a Kumar Gkose, (1924) 52 0. 197 : 21f C. W. N. 1S1 : 41 C. L. J.
240: (P. C.), followed in Bhikari Pali, 9 P. 592.

(a) Amnta la! Bose V. Corporation of Calcutta, (1917) 44 C. 1025: 21 C. W. N.
1016. (F, B.).

(U) Per Mookherji, J., in limp. V. Barcndva Kumat Chose, (1925) 28 C. W. N. 170
at p. 190: 38 C. L. j. 411 (5! 5) , see also Judgment of Field ]., in limp. V. Ihubo
Mahton, (1882) 8 C. 739.

(c) Jhakri Chamar, (1912) 16 C. L. J. 440 at p. 452.

(d) Barendra Kumar Chose, (1924) 52 C. 197 (212): 29 C. W. N. 181 at p.
190: 41 C. L. J. 240, (P. C.).

(e) Bhondu Das, (1928) 7 p. 758: A. 1. R. (1929) p. 11.

(I) Jtiamsunder Isser , (1925) 5 Pa- 238.

(g) A. I. R. (1931) R. 1 (F. B.).

(h) Dulli, (1924) 47 A. 59, following Mahbul Hussain, (1913) 1.1 A. L. J. 263
and dissenting from Mahabir Hussain, (1899) 21 A. 263 ; Nga Pu, 98 I. C. 181 :
A. I. R. (1926) R. 207

(i) Nabibux , (1927) 52 B. 168: 30 Bom. L. R. 85: A. 1. R. (1928) B. 52 (1).

following AH Mina, (1923) 51 C. 205. v ’

SEC. 35]

GENERAL EXPLANATIONS

45

Does the section apply to s. 304, Part II i — This section does not apply
to a case under s. 304, Part II (j). The same High Court held a contrary view
in Adam Adi s case (k) and Abdul Goffurs case (1), but it seems the later view is
wrong.

Absence of charge under this section may be cured by s. 537 of the
Code of Criminal Procedure . — Where accused persons are tried for the offences of
rioting armed with deadly weapons and attempt to murder under Ss. 148, 149 and
307 of the Code but not charged under s. 34, and the common presence and the
common object being sufficiently charged, the Bombay High Court has held that
the accused could be convicted of offences under s. 307 read with Ss. 34 and 1 14
of the Code where the facts established that the accused were not misled by the
omission of such a charge and such an error could be cured under either s. 232
or s. 537 of the Criminal Procedure Code (m).

35. Whenever an act, which is criminal only by reason
of its being done with a criminal knowledge

criminal "by'' reason* of or intention, is done by several persons,
its being done with a each of such persons who joins in the act

intention. knowled ^ e or with such knowledge or intention is liable
for the act in the same manner as if the act
were done by him alone with that knowledge or intention.

The previous section dealt with a case where an act is done by several per-
sons in furtherance of the common intention of all, this section (35) shows that when
an act which is criminal only in respect of knowledge or intention, is done by
several persons each person joining with criminal knowledge or intention is
liable as if he had done it alone with that knowledge or intention.

Scope : — S. 34 and the closely connected Ss. 35, 37 and 38 were intended to
lay down compendiously in the fewest possible words, some elementary prin-
ciples of criminal liability . They do not create offences and given the common
intention, in practice, it does not signify which section applies in any particular
case (ml). This section only makes it clear that where a number of persons join
in an act which is criminal only by reason of its being done with a certain know-
ledge or intention, each person is liable for the act to the extent of his knowledge
or intention (n) ; in other words the Court or the jury have to consider what is
the knowledge or intention; with which each person joined in the act (o).

“ Sometimes an act which is in itself lawful becomes unlawful, or vice versa
if done with a particular intention or knowledge. The killing of a house-breaker
found committing theft by night in a dwelling house is lawful, but might be mur-
der if he was killed out of mere revenge ” (p).

Morgan and Macpherson observe •’ — “ If several persons having one and
the same criminal intention or knowledge jointly commit murder or an assault,
each is liable for the offence as if he had acted alone ; but if several persons join
in an act, each having a different intention or knowledge from the others, each

(j) Aniruddha Mana , (1924) 2G Ci. L. J. 827 : A. I. E. (1925) C. 913.

(k) (1926) 31 C. W. N. 314.

(l) (1924) 45 C. L. J. 131. *

(m) Ranchod Sursong, (1024) 49 B. 84 : 29 Bom. L. R. 954 : A. I. R. (1924)
Bom. 502., Bhandu Das, (1028) 7 P. 758.

(ml) Per Richardson J., in Barendra K timer Ghose, (1923) 28 C. W. N. 170 (211),

(n) Abdul Goffur Panchayat, (1926) 45 C. L. J. 131.

(o) ’ Adam AH Talukdar, (1926) 31 C. W. N. 314.

(p) See Mayne — Criminal Law of India, 3rd edition, p. 470.

THE INDIAN PENAL CODE

46

[CHAP. II

U liable according to his own criminal intention or knowledge, and he is not liable
any further. ”

As Bramwell, B, in an English case told the jury: “Suppose ttoo men bo
out together and one of them holds a third man for the purpose of enabling nts
companion to cut that man’s throat, and his companion does so, no one could
doubt that they were both equally guilty of murder ” (q).

36. Wherever the causing of a certain effect, or an attempt
to cause that effect, by an act or by an omis-
Effect caused partly s j onf j s an offence, it is to be understood that
omission f" par y y the causing of that effect partly by an act
and partly by an omission is the same

offence.

Illustration.

A intentionally causes Z's death, partly by illegally omitting to give Z food,
and partly by beating Z . A has committed murder.

This section follows as a corollary from section 32.

Scope : — This section shows that when an offence is the effect partly of an
act or partly of an omission, it is an offence only (r).

37. When an offence is committed by means of several
acts, whoever intentionally co-operates in
Co-operatiou by doing t jj e commission of that offence by doing

stituting an offence. any ot those acts, either singly or jointly

with any other person, commits that

offence.

Illustrations.

(a) A and B agree to murder Z by severally and at different times giving him
small doses of poison. A and B administer the poison according to the agreement
with intent to murder Z. Z dies from the effects of the several doses of poison so
administered to him. Here A and B intentionally co-operate in the commission of
murder and as each of them does an act by which the death is caused, they are both
guilty of the offence though their acts rare separate.

(&) A and B are joint jailors, and, as such, have the charge of Z, a prisoner,
alternately for six hours at a time. A and B, intending to cause Z’s death, knowingly
co-operate in causing that effect j?y illegally omitting, each during the time of his
attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger.
Both A and B are guilty of the murder of Z.

(c) A, a jailor, has the charge of Z, a prisoner. *A intending to cause Z’s death,
illegally omits to supply Z with food ; in consequence of which Z is much reduced in
strength, but the starvation is not sufficient to cause his death. A is dismissed from
his office, and B succeeds him. B, without collusion or co-operation with A , illegally
omits to supply Z with food, knowing that he is likely thereby to cause Z’s death.
Z dies of hunger. B is guilty of murder, but, as A did not co-operate with B , A is
guilty only of an attempt to commit murder.

Scope This section shows that when an offence is committed by several
acts, each person intentionally committing one of those acts singly or jointly with
others, commits the offence (s). "S. 37 provides that, when several acts are

(q) Jackson , 7 Cox 357.

(r) Per Mukherji, J., in Emp. V. Barendra Kumar G hose, (1923) 28 C. W. N.
170 at p. 189: 38. C. L. J. 411 (543).

(s) Per Mukherji, J., in Barendra Kumar Ghose, (1923) 28 C. \V. N.*170 at p,
190: 38 C. L. J. 411 (543).

SECS. 38-39 ]

GENERAL EXPLANATIONS

47

done so as to result together in the commission of an offence, the doing of any
one of them, with an intention to co-operate in the offence (which may not be
the same as an intention common to all), makes the actor liable to be punished
for the commission of the offence ” ft).

Mr. Bishop .'ays : “ In the first place, if several persons combining both in
intent and act, commit a crime jointly, each is guilty of the same as if he has done
the whole alone ; and so it is, if each has his particular part to do, the whole con-
tributing to one result. In the next place, since what a man does by himself,
if one employs another to do a criminal thing for him, he is guilty of the same
as though he had done the thing himself " (u).

Three persons attacked with heavy sticks a fourth against whom they bore
a grudge and beat him with great severity with the result that he died shortly
afterwards. His skull was badly fractured and numerous other injuries were
inflicted on him. It could not be traced which injuries were caused by whom
but the evidence showed that they were acting in concert arid intended to cause
such bodily injury as was likely to cause death. It was held by the Allahabad High
Court that all the three assailants were guilty of murder fv). If a number of
persons make a joint attack on a man with lathis and fracture his ‘skull’ and inflict
a number of other injuries on him, all are equally guilty and it is not necessary
to prove such of them actually inflicted the blow (w). Where several persons
join in beating another with lathis , and inflicts such serious injuries on him that
he dies shortly after the beating, all are equally guilty of murder (x).

38. Where several persons are engaged or concerned in
Persons concerned the commission of a criminal act, they may
guiky m 'of al different ** ^e guilty of different offences by means of
offences. that act.

Illustration.

A attacks Z under such circumstances of grave provocation that his killing of
Z would be only culpable homicide not amounting to murder. B having ill-will
towards Z and intending to kill him, and not having been subject to the provoca-
tion, assists A in killing Z . Here, though A and B are both engaged in causing Z's
death, B is guilty of murder, and A is guilty only of culpable homicide.

Scope : — This section shows that persons jointly engaged in a criminal act
may be guilty of different offences (y). S. 38 speaks of “ several persons engaged
or concerned in a criminal act (z).” The Privy Council in Barendra's case (a) held:
“ S. 38 provides for different punishments for different offences as alternative to
one punishment for one offence, whether the persons engaged or concerned in the
commission’ of a criminal act are set in motion by the one intention or the other.”

39. A person is* said to cause an effect “ voluntarily ”
when he causes it by means whereby he
intended to cause it, or by means which.

" Voluntarily".

(t) Barendra Kumar Ghose, (1924) 52 I. A. 40 (51), 52 C. 197 : 23 A. L. J.

314 (P. C.).

(u) Bishop’s Commentaries on the Criminal Law, Vol. I Ch. XXIII, s. 432.

(v) Ram Newaz , (1913) 35 A. 506 : 11 A. L. J. 804 : 14 Cr. L. J. 616 : 21 I. C.

663, see Subappa Chunnappa, (1912) 15 Bom. L. R. 303 : ' 14 Cr. L. J. 235 : 19 I. C.

331 .

(w) Ghulam Hussain , (1923) 24 Cr. L. J. 673 : 73 I. C. 769 A. I. R. (1924)
All. 78.

(x) Umed, (1923) 45 A. 727 f where held Bhola Singh, (1907) 29 A. 282 is no
longer good law.

(y) Barendra Kumar Ghose , (1923) 28 C. W. N. 170 at p. 190.

(z) Per Richardson, J. f ( Ibid) at p. 216: 38 C. l<, J. 311 (379).

(a) 52 I. A. 40; 62 C. 197 (P. C.).

48 THE INDIAN PENAL CODE [ CHAP. II

at the time of employing those means, he knew or had reasons
to believe to be likely to cause it.

Illustration.

A sets fire, by night, to an inhabited house in a large town, for the purpose of
facilitating robbery, and thus causes the death of a person. Here, A may not have
intended to cause death, and may even be sorry that death has been caused by his
act ; yet, if he knew that he was likely to cause death, he has caused death voluntarily.

The word * voluntarily * has been borrowed from the definition of 4 wilfully*
as drafted by the Commissioners on the Criminal law of England.

44 The principle of exemption from criminal responsibility in respect of a
hurtful consequence is that of bona fide ignorance of the connection existing
between the mere mechanical act and its consequence. That principle ceases
to operate where the connection is known to be either certain or probable. If
the doer of an act know or believe that a noxirus consequence will Result from
that act, he is just as culpable both in law and in morals as if he had acted with
the most direct intention to hurt. Let it however be supposed that the conse-
quence is not certain, but that it is a likely or probable consequence and that the
likelihood or probability is known to the doer of the act. Here again it is clear
that the principle of exemption abovementicned is unavailable to exempt the
offender from liability in respect of the consequence. All he can urge is, that
. he was not sure that the hurtful consequence would follow ; but he had no right
to incur the risk and danger of producing the mischief, and having done so, i9
justly responsible for it ; he cannot reasonably complain that the Law did not
give notice of the penalty annexed to the offence, or that he did not wilfully offend,
for the Law may justly, after due notification, doom such an offender to the penal-
ties inflicted on those who accomplished their purposes by more certain or direct
means ; the safety of society is inconsistent with any distinction in this respect,
and the offender in truth acted wilfully incurring the risk and danger of causing
the injurious result ** (b).

* intended 9 s — Intention to cause a certain result is not an element necessary
to constitute a voluntary causing of that result, but knowledge of, or belief in,
the likelihood of the result following (‘though not intended*) may supply the place
of intention (c).

A person who administers a well-known poison like Arsenic to another must
be taken to know that his act is so imminently dangerous that it must in all pro-
bability cause death or such bodily injury as is likely to cause death even though
his intention at the time may not have been to cause death (d). A person throwing
brick-bats at another’s house struck another as a result of which he had to be
under medical treatment for ten days. As this was the natural and probable
consequence of the act, accused wa.. liable to conviction under s. 323 and not
under $. 336 of the Code (e).

Verdict of guilty but not voluntarily :—A verdict such as this : 44 guilty
but not voluntarily, *’ having regard to the language of s. 326, I. P. C., has been
pointed out by Maclean, C. J., in delivering the judgment of the Full Court in
Khudirarns case (f) that in effect it amounts to a verdict of 44 not guilty/*

(b) English Law Commissioners, 7th Rep. s. 23, cited in First Rep. at s. 106.

(c) Jaipal Gir V. Dharinapala , (1895) 23 C. 60 (76, 77); The Public Prosecutor
V. Sunken (1910) 34 M. 2 (p3).

(d) Gouri Shankar , (1918) 40A. 360. *

(ej Mung Po Nyan, (1917) 17 Cr. L. J. 465: 36 I. C. 145.

(f) (1906) 12 C. W. 530. (F. B.), in a case from Original Side, Sessions.

SEC. 40]

GENERAL EXPLANATIONS

40

40. Except in the chapters and sections mentioned in
clauses 2 ^and 3 of this section, the word
“ offence". “ offence ” denotes a thing made punishable

by this Code.

In Chapter IV, (Chapter V-A) and in the following sec-
tions, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114,
115, 116, 117, 118, 194, 195, 203, 211, 213, 214,221, 222, 223,
224, 225, 327, 328, 330, 331, 347, 348, 388, 389, and 445, the

word “ offence ” denotes a thing punishable under tbis Code,
or under any special or local law as hereinafter defined.

And in sections 141, 176, 177, 201, 202, 212, 216, and 441 the
word “ offence ” has the same meaning when the thing punish-
able under the special or local law is punishable under such law
with imprisonment for a term of six months or upwards, whether
with or without fine.

Legislative Changes : — This section was substituted for the original s. 40
by the Indian Penal Code Amendment Act 1870 fAct XXVII of 1870) s. 2. The
word, figure and letter “ Chapter VA “ were inserted by s. 2 of the Indian Crimi-
nal Law Amendment Act, 1913 (VII I of 1913). The figures 64, 65, 66 and 71 were
inserted by the Indian Penal Code Amendment Act, 1832 (VIII of 1832) s. I, and
the figure 67 by the Indian Criminal Law Amendment Act, 1886 (X of 1886),
s. 21 (I). For the word 4 chapter chapters have been substituted by s. 2 of Act
VIII, 1930 (Repealing and Amending Act).

The effect of amendment of s. 40 was considered in loti Prosid Guptas
case (g) as follows : 44 The offence which was alleged to be the common object of
the assembly being an offence under s. 188, I. P. C., came within the first clause
of this section and as such fall under cl. (1) of s. 141 of the Code/* In the case
against Subhash Chandra Bose (h) it was argued that the offence punishable under
the special or local law being punishable with imprisonment for a term of less
than six months, 4 offence * mentioned in the third clause of s. 141, I. P. C., did
not come within the purview of s. 141, I. P. C., and although the learned Judges
accepted that contention they proceeded upon cl. 2 to s. 141. The attention of
the learned Judges was not drawn to the case of Bhalchandra Randive (i).

€ Thing made punishable’ :~~West, J., explained as follows: “If verbal
criticism is to have a preponderating influence, 1 may observe that there is an
inaccuracy in s. 40. A 4 thing * meaning an act or omission, if not susceptible of
punishment. What is meant is a thing for which he who is guilty of it is punish-
able “ (j). But Holloway, J., held : “ The words 4 made punishable * were used
according to a common idiom, for 4 rendering a person liable to punishment * ;
for it is obvious that in the strict and primary usage of the word, no thing is
punishable, and no person since Xerxes except a child with his doll has ever
supposed otherwise. The expression therefore is incomplete “ (k). According
to Innes, J., ‘ a thing made punishable * means an act or omission, which, by this
Code is constituted an offence to which a punishment is attached (1).

r a* — . ... —

'■•‘(g) (1931) A. L. J. 986.

(h) (1931) 58 C. 1303: 35 C. W. N. 716.

(i) (1929): 54 B. 35. 31 Bom. L. R. 1151.

(j) Moorga Chetty, (1881) 6 B. 338 at p. 353 (F. B ).

(k\ Per Hollowav, J.. (1886) 3 M. H. C., App. XI at p. XII.

(1) Ibid, at p. XXI.

7

50 THE INDIAN PENAL CODE [CHAP. II

No act or omission outside British India is an offence under this Code
unless this Code provides otherwise (m).

Att em pt * — An attempt to commit an offence is itself an offence . within
the definition of ‘ offence * under s. 40, and where no express provision is. made
in any other part of the Code for the punishment of such offence, it is punishable
under s. 51 1 (n).

Abetment : — The abetment of an offence is itself an 4 offence ' within the
meaning of this section (o). The Calcutta Municipal Act is a special and local
law and the provisions of this section apply to abetment of an offence punishable
by the bye-laws framed under that Act (p).

Main tenance order : — An order for payment of maintenance is not a
conviction for an offence (q).

Special or local law : — The Whipping Act is not a special law (r), but
the Cattle Trespass Act is a special law (s).

41 . A special law " is a law applicable to a particular

" Special Law.” Sub i eCt -

The special laws mentioned in Ss. 40 and 41 of the Code are laws such as
the Excise, Opium, Cattle Trespass Acts, etc., creating fresh offences other than
those specified in the Code itself. The Whipping Act is not a special law.

Whenever there is an intention to apply the provisions of the criminal law
to acts authorized or required by particular statutes that intention is always made
clear by express words to that effect. Instances of this may be found in the Cess
Act (Bengal Act IX of 1880), s. 94; in the Estates Partition Act (Bengal Act
VIII of 1876), s. 148 ; in the Income Tax Act II of 1887, Ss. 35 and 37 ; in the
Land Acquisition Act of 1894, s. 10, and in many other Acts (t).

42 . A “ local law " is a law applicable only to a particular

“ Local law." P art ° f British India -

As a special law applies to special subjects, the operation of local law is
confined to particular localities, e.g„ the several Revenue Acts, Excise Acts,
Court of Ward Act, Port Trust Acts, and the Burma Rural Self-Government
Act (u). If an offence is punishable by the general law such as the Indian Penal
Code, and also by a later special law applicable to particular persons and particular
circumstances, the special law should apply (v), •

(m) Gonpat Rao Ramchandra, (1804) 19 B. 105, following Reg , V. Elmstone,
(1870) 7 Bom. H. C. R., Cr. C. p. 118 and Emp. V. Moorga C'hetty , (1881) 5 B. 338

(nj Emp. V. Ajudhia, (1895) 17 A. 120 at p. 123.

(o) Reg. V. Spier, (1887) P. R. No. 40 of 1887.

(p) Probodh Chandra Bose V. Corporation of Calcutta, (1910) 24 C. W. N. 106:
541. C. 781.

(q) In re Ponnamal, (1802) 16 M. 234, see Golam Hossain Chowdhury, (1867)

7 W. R. (Cr.) 10. , '

(r) Po Han . (1913) 7 L. B. R. 63 : 7 Bur. L. R. 99 : 15 Cr. L. J. 3 : 22 I. C. 147.

(s) Bhola, (1927) 8 L. 331: 103 1. C. 201.

(t) Chandi Prosad V. Abdur Rahaman, (1894) 22 C. 131 (139).

(it) Ma Khwet Gyi, (1928) 6 R. 791 (792).

(v) Kuhda Prosad Majumdar, (1906) 11 C, W. N. 100 Contra Ganda Saha
83 P. R. 1894 (Cr.). * *

SECS. 43-44 ]

GENERAL EXPLANATIONS

51

43. The word “ illegal ” is applicable to everything

" illegal.'' which is an offence or which is prohibited

'■"Legally bound to by law, or which furnishes ground for a civil

1 °' action : and a person is said to be “ legally

bound” to do whatever it is illegal in him to omit.

Illegal : — The word ‘ illegal * has been given a wide meaning, for it is
applicable not only jto (1) everything which is an offence, or (2) which is prohibited
by law, but also to (3) that which furnishes ground for civil action. In dealing
with this expression the Law Commissioners remarked thus : “ These appear
to be wide words, but we think it would be difficult to restrict them without the
risk of excluding something which ought to be included. Generally we apprehend,
it will be found unobjectionable to designate as illegal anything done or omitted
to be done by a man for which he is liable to a civil action ,# (w). The word
‘ illegal * has an extensive meaning, including anything and everything which is
prohibited by law which constitutes an offence and which furnishes the basis
for a civil suit, ending in damages (x).

The word unlawful has not been defined in the Code but may be taken
to correspond with the word ‘illegal’, which is defined in this section (y).

Legally bound : — A witness is not legally bound to sign his deposition in
a civil case (z). But in a trial of a warrant case he is to sign depositions under
s. 360 of the Criminal Procedure Code (a). An accused is bound to sign the
record of his statement under s. 364, Criminal Procedure Code, and his refusal
to sign it amounts to an offence within the meaning of s. 188, (b). A

refusal to sign a summons is not an offence (c).

Where the accused, a deputy tahsildar, submitted to his official superior a
false nil return of lands in his enjoyment, and also made a false statement to
the same effect in a revenue inquiry before the principal Assistant-Collector, it
was held by the Madras High Court that the accused was not * legally bound *
to furnish such information within the definition given in s. 43 but was doubtless
guilty of breach of a departmental order (d).

The publication of a pamphlet written in a provocative and defamatory style,
furnishing the persons defamed a ground for civil action is illegal under this sec-
tion ; the distribution of such a pamphlet renders the person concerned liable
under s. 153 (e).

44. The word ” injury ” denotes any harm whatever

In j illegally caused to any person, in body,

mind, reputation or property.

Injury : — An injury is simply an act contrary to law (0- The word ‘ injury *
has been given a wide meaning in this section. The word 4 injury * includes any

(w) j st Report, s. 91.

(x) Bhagwan Din , A. I. R. (1 020) A. 935.

(y) Vallabhram Ganpatmm, (1925) 27 Bom. L. K. 1391 (1401) : 27 Cr. L. J.
689 : A. I. R. (1926) B. 122.; Fazlar Ruhuman (1929) 9 P. 725.

(z) Fateh Ali, (1912) P. R. No. 8 of 1912.

(a) Haronath Malo V. Sonai Mia Chowdhury, (1922) 28 C. W. N. 119.

(b) Umar Khan, (1917) 39 A. 399, distinguishing Emp . V. Sivsapa, (1877) 4
B. 15.

(c) Krishna Govtnda , (1893) 20 C. 358.

(d) Appaya, (1891) 14 M. 484, dissenting fiom Viraswami Mudali, (1881) 4
M. 144.

(e) Rahimatalli Mahomedali , (1919) 22 B 0 m L. R. 166: 22 Cr. L. J. 513: 62
I. C. 401.

ff) Per Bolloway, J. # in Swatni Nayadu V. Subarnania, 2 M. H. C. R. 158 (160).

52

THE INDIAN PENAL CODE

[ CHAP, II

harm illegally caused to the property of any person and is not restricted to an
injury to the person only (g). A false charge laid before the police against a per-
son and never intended to be prosecuted in Court, may obviously subject the
accused party to very substantial injury as defined in s. 44 (h).

Where a person promises to speak favourably to a person in authority and
to do his best to induce him to do something, and in consideration of this promise
receives money, his act does not amount to causing 4 injury’, and the accused can-
not therefore be charged of having practised extortion (i).

Threat to ruin another by cases : — The offence of criminal intimidation
would not be committed if the threat was to ruin a person by cases and not
* false cases because the harassment, although caused from an improper motive
could not be caused illegally and as such would not bring the offender within the
definition of 4 injury ’ (j).

Threat to institute civil suit : — The recourse to a civil Court cannot
amount to causing an illegal harm (k).

False Charge : — A false charge laid before the police and never intended
to be prosecuted in Court, may obviously subject the accused party to very sub-
stantial injury as defined in this section (1).

Property : — The term 4 property ’ means something in existence and that
it cannot, with any propriety, be applied to the reasonable expectation of pecuniary
benefit for the loss of which an action is maintainable by the representation of a
deceased person. In a case where the widow of a man who has been drowned
by the criminal act of another, can be said to suffer an 4 injury, ’ the magistrate
awarded compensation under s. 545 of the Criminal Procedure Code for the loss
sustained by the wife through her husband’s death, it was held by the Madrar
High Court that compensation could not be awarded to her, and Shepherd, J„ held
as follows : — “ If the claim of the widow in such a case is maintainable* it
must follow that the master of a servant, who has been disabled or put in wrong-
ful confinement, may equally apply for compensation to be paid out cf the fine
inflicted on the offender. In my opinion it would be putting an undue strain
on the language of the section to hold that it refers to and includes actions which
may be brought on account of loss of service ” (m). But a contrary view has been
held by the Chief Court of Punjab (n). The Calcutta High Court, however, in
Morgains case (o) preferred to follow the dissentient judgment of Benson, J.
in Yalla Gangulus case (m).

45 . The word " life " denotes the life of a human being,
ifC M unless the contrary appears from the con-

text.

46 . The word “ death ” denotes the death of a human
eath » being, unless the contrary appears from

the context.

fg) Natha Lala, (1868) 5 Bom. H. C. R. 67.

(h) Ya^hoof Ali V. (1879) 5 C. 281 (282).

(i) Habibul Razzak , (1923) 46 A. 81 : 21 A. L. J. 850: A. I. R. (1924) 197.

(j) Jawahir V. Parbhoo, (1 902) 30 C. 418: 7 C. W. N. 116.

(k) Malai Rao. (1025) 02 I. C. 803.

(l) Ashrof Ali. (1879) 5 C. 281 (282) ; followed in Salift Roy (1881) 8 C. 682

(583), and Ramasami, (1824) 7 M. 202.

(m) Yalla Gangulu V. Mamidi Dali, (1897) 21 M. 74 (F. B.) at p. 78. affirming

Luchmoha, (1889) 12 M. 352; lioop Lai Singh, 10 W. R. 39 Cr. *

(n) Saif Ali, (1898) P. R. No. 17 of 1898.

(o) 9. Cr. L. J. 393.

SECS. 47-51]

GENERAL EXPLANATIONS

53

47. The word 44 animal ” denotes any living creature,

•« Animal". other than a human being.

Sir James Stephen says, the definition is not only superfluous but doubts
about its correctness. He says, it is wholly vague as it might include an angel,
frog-spawn and probably a tree.

The word * animal v ordinarily means an organised or living being having
sensation and power of voluntary motion, an inferior or irrational being as
distinguished from man (p).

48.

' Vessel 0 .

' Year”.

* Month".

The word “ vessel ” denotes anything made for the
conveyance by water of human beings or
of property.

‘ Vessel * : — Whether a ship is a British Vessel depends on the owner and
the flag fq).

49. Wherever the word 44 year ” or the word 44 month ff
is used, it is to be understood that the year
or the month is to be reckoned according
to the British calendar.

‘Year* : — The year shall be counted from the 1st January instead of the
25th day of March fr). In computing the period of sentence, a year will include
welve calendar months, and a month according to the number of days is that
month. The day on which the sentence is passed is counted as a whole day (s).
Denman, J., in that case observed : 44 I am of opinion that a sentence of imprison-
ment for one calendar month, passed on any given day of a given month is to be
held to begin to run from the first moment of that day, and to expire upon arriv-
ing at the first moment of the corresponding day in the succeeding month. If
there be no such corresponding day by reason of the succeeding month not having
so many days as the preceding month, then by analogy to the law established in
the case of bills of exchange, I think the calendar month should be held to have
expired at the last moment of its last day but as long as there is a day in the calen-
dar numerically corresponding from which the sentence begins to run, so that
it is unnecessary to trench upon the succeeding month. I see no ground for
anticipating the expiration of the sentence” (t).

50. The word /* section ” denotes one of those portions
of a chapter of this Code which are dis-
tinguished by prefixed numeral figures.

The word 44 oath ” includes a solemn affirmation
substituted by law for an oath, and any
declaration required or authorized by law
to be made before a public servant or to be used for the purpose
of proof whether in a Court of Justice or not.

1 Section"

51.

" Oath”.

(P)

8

8

Tulsi Bewah V. Sweeney, (1897) 24 C. 881 (885).

Sven Selerg, (1870) L. R. I. C. C. R. 264 ; Frank Allen, (1866) 10 Cox. 406.
24 Geo II c. 23.

Migoli V. Colvill, (1869) 4 C. P. D. 233.

54

THE INDIAN PENAL CODE

[CHAP. II

An * oath ' is a religious asseveration , by which _ a person renounces the
mercy and imprecates the vengeance of Heaven if he do not speak the
truth (u).

Omission to administer oath t— There is a conflict of decisions on the
point as to whether a deliberate omission to administer an oath or affirmation
makes the evidence inadmissible. The following decisions (v) have held in the
affirmative but the following decisions (w) have held in the negative.

52 .

“Good faith”.

Nothing is said to be done or believed in “ good
faith ” which is done or believed without
due care and attention.

The definition of ‘ good faith * in the Code as given here is a negative one.
It does not define ‘ good faith ' but simply says that an act is done in good faith
if it is done or believed with due care and attention (w r ).

The General Clauses Act defines * good faith * as follows : — “ A thing
shall be deemed to be done in * good faith * where it is in fact done honestly, whether
it is done negligently or not " (wj. This definition in the General Clauses Act
corresponds with the definition of the term given in the English Bills of Exchange
Act, 1882 (45 and 46 Viet, c., 61) s. 90 ; and the Sales of Goods Act, 1893 (56
and 57 Viet. c. 71) s. 62.

The question of ‘ good faith * is always a question of fact. As Batty, J.,
observed : “ ‘Good faith ’ requires not, indeed, logical infallibility but due care and
attention. But how far erroneous actions or statements are to be imputed to
want of due care and caution must, in each case, be considered with reference
to the general circumstances and the capacity and intelligence of the person whose
conduct is in question. It is only to be expected that the honest conclusions
of a calm and philosophical mind may differ very largely from the honest con-
clusions of a person excited by sectarian zeal and untrained to habits of precise
reasoning " fx).

When a pleader is charged with defamation, in respect of words spoken or
written, while performing his duty as a pleader, the Court ought to assume * good
faith* and not hold him criminally liable, unless there is satisfactory evidence
of actual malice and unless there is cogent proof that unfair advantage was taken
of his position as a pleader for an indirect purpose (y). One Arnold, the Editor
of the * Burma Critic \ a newspaper published in Rangoon, was charged under
s. 499, I. P. C. with having, in certain articles entitled “ A mockery of British
Justice ** 9 defamed a District Magistrate with reference to his alleged conduct in
the trial of a case in which a European resident in the 4 District was acquitted on
charges of abduction and rape of a native girl of II or 12 years. His defence
was the 9th exception to s. 499, and he pleaded, admitting the libels to be false,
he published them in good faith for the public good, and believing them to be

(u) White (1786) 1 Leach. 430 (431) ; See The Indian Oaths Act (X of 1873).

(v) Maru, (1888) 10 A. 207 ; J.al Swkai, (1888) 11 A. 183; Virapernmal, (1892)
16 M. 105.

(w) Sewa Bhogta, (1874) 14 Beng. L. R. 294-23 W. R. (Cr.) 12 (F. B.), overruling
Anunto, 22 W. R. (Cr.) 1 ; 16 B. 259; Nafar Shaikh , (1913) 41 C. 406.

(wl) Public Prosecutor V. Rajammal, (1910) 10 M. L. T. 501 : (1911) M. W. N.
479: 12 Cr. L. J. 566 : 12 I. C. 654.

(w2) ActXofl897, s. 3(20).

(x) Abdul Wadodl Ahmed , (1907) 31 B. 293 (298); see Gul Mu hammed V.Hazi

Fazley Karim , (1929) 56 C 1014 .* 33 C. W. N. 44 <, where it was held that the onus
was on accused to prove food faith. •

(y) Upendra Nath Bagchi , (1909) 36 C. 375.

SEC. 53]

OF PUNISHMENTS

55

true after having taken due care and attention in the matter of their publication.
Their Lordships of the Judicial Committee dismissed the appeal (z).

A police officer seeing a horse like the one lost by his father tied up in a person’s
premises, seized it and arrested the person without making further enquiries,
held that it was not done in good faith (a). But in a Bombay case where a police
constable after questioning a person who was carrying three bundles of cloth
under his arms, and receiving unsatisfactory replies arrested him, it was held
that he was acting in 4 good faith* as he put questions to clear his suspicions, and
not for the purpose of causing annoyance (b).

In a case, where the accused saw a stooping child in the early morning at a
place supposed to be haunted and believing it to be a demon, dealt it blows of
which it died, it was held that although there was mistake of fact, he had acted
with due care and caution and as such he could not be held to have acted in good
faith and was convicted under s. 304- A. (c).

Where a Kabiraj uneducated in matters of surgery operated on a man for
internal piles with an ordinary knife, and the man died from hoemorrage, held
that he had not acted in good faith, although he had performed similar operations
on previous occasions, and he was found guilty of manslaughter under

s. 304-A (d).

The accused, a Hakim, performed an operation with an ordinary pair of
scissors, on the outer side of the upper lid of the complainant's right eye, the
operation was needless and performed in a primitive way, the most ordinary pre-
cautions being neglected. The wound was sutured with an ordinary thread.
The result was that the complainant’s eye-sight was permanently damaged to a
certain extent. The Bombay High Court held that the accused was rightly con-
victed under s. 338 (e). Mere administering of a love potion or drug, which a
person thinks might be beneficial, is not in itself an offence ; but when it is sup-
posed to have effect upon persons with whom the paramour of a woman (accused)
had enmity, and when she administers it without due care and caution or any
enquiry as to what it really is, her act certainly falls within s. 304-A (f). In a
civil case, Lort Williams, J., has held that the standard required is such as is
expected of a man of ordinary prudence (g).

CHAPTER III.

Of Punishments.

53. The punishments to which offenders are liable under
-Punishment”. the provisions of this Code are, —

I

First, — Death ;

Secondly, — Transportation ;

(*) Charming Arnold. 41 C. 1023 (1058) P. C. : 18 C. W. N. 785 : 16 Bom. L. R.

544.

(a) Sheo Suran Sakai V. Mohammad Fa?if, (1868) 10 W. R. Cr. 20.

(b) Bhawoojivanji V. Mulji Doyal, (1888) 12 B. 377 at 393: leading case.

(c) Hayat, (1888) P. R. No. 11 of 1888.

(d) Sukaroo Kabiraj V. Emp. (1887) H C. 666.

(e) Emp. V. Gulam Hvder Punjabi , (1915) 39 B. 523; Emp. V. RamaraChan-
nappa, 17 Bom. L. R. 217 : 27 I. C. 667.

(f) Pika Bewa (1912) 30 C. 855, see also Ramava Channappa (1915) : 17 Pom

L. R. 217 (where accused administered to her husband a deadly poison believing it
to be a love potion _ _

(g) Haft Rahim Bux Ashan Karim V. Central Bank of India f (1928) 66. C. 357
(365).

56

[CRAP. HI

THE INDIAN PENAL CODE
Thirdly , — Penal servitude ;

Fourthly , — Imprisonment, which is of two descriptions,
namely : —

(1) Rigorous, that is, with hard labour;

(2) Simple ;

Fifthly— Forfeiture of property ;

Sixthly , — Fine.

This section dc.ils with six kinds of punishment besides * whipping * which
has been adjudged a form of punishment by Act VI of 1834 as amended by Act
III of 1895 and Act IV of 1909 and detention in reformatories is another form
of punishment.

It is often stated that the Code is very severe in the standard and measure
of punishment prescribed. The Authors of the Code admit that and observed
as follows : — “ We entertain a confident hope that it will shortly be found practi-
cable greatly to reduce the terms of imprisonment which we propose. Where a
good system of prison discipline exists, where the criminal, without being subject
to any cruel severities, is strictly restrained, regularly employed in labour not ot
an attractive kind, and deprived of every indulgence not necessasy to his health,
a years confinement will prove as efficacious as confinement for two years in a
gaol where the superintendence is lax, where the work enacted is light and where
the convicts find means ol enjoying as many luxuries if they were at liberty. As
the intensity of the punishment is increased, its length may safely be diminished.
As members of the Committee which is now employed in investigating the sy.-tem
followed in the gaols cf this country, we have had access to information which
enables us tc say with confidence that, in this department of the administration,
extensive reforms are greatly needed and may be easily made. The researches
of the Committee will, we hope, enable the law commission hereafter to prepare
such a Code of prison discipline as, without shocking the humane feelings of the
community, may yet be a terror to the most hardened wrong-doers. Whenever
such a Code shall come into operation, we conceive that it will be advisable greatly
to shorten many of the terms of imprisonment which we have proposed. ” (h).

1. Death : — The Authors of the Code observe as follows: “ We are convinced
that it ought to be very sparingly inflicted, and we propose to employ it only in cases
where either murder or the highest offence against the State has been committed ....
To the great majority of mankind nothing is so dear as life. And we are cf opinion
that to put robbers, rayishers and mutilators on the same footing with murderers
is an arrangement which dimini?hes the security of life — these offences are almost
always committed under such circumstances that the offender has it in his power
to add murder to his guilt — the same opportunities, the same superiority of force,
which enabled a man to rob, to mangle, or to ravish, will enable him to go further
and to despatch his victim. As he has almost always the power to murder, he
will often have a strong motive to murder, inasmuch as by murder he may often
hope to remove the only witness of the crime which he has already committed.
If the punishment of the crime which he has already committed be exactly the
same with the punishment of murder, he will have no restraining motive. A
law which imprisons for rape and robbery, and hangs for murder, holds out to
ravishers and robbers a strong inducement to spare the lives of those whom they

(h) Note A.

sec. 63]

OF PUNISHMENTS

67

have injured. A law which hangs (or rape and 'robbery, and which only hangs
for murder, holds out indeed, if it be rigorously carried into effect, a strong motive
to deter men from rape and robbery, but as soon as a man has ravished or robbed,
it holds out to him a strong motive to follow up his crime with a murder’* (i).

Death is the punishment that is confined by the Code to the following
offences : (I) Waging war against the King (s. 121), (2) Abetment of mutiny if
mutiny is committed in consequence thereof (s. 132), (3) Giving or fabricating
false evidence with intent to procure conviction of capital offence (s. 194), (4)
Murder (s. 302), (5) Abetment of suicide of child or insane person or any delirious
person, any idiot or any person in a state of intoxication ($. 305), (6) Dacoity with
murder s. 396), (7) Attempt to murder by transported convict (e. 307). When
any person is sentenced to death, the sentence shall direct that he be hanged by
the neck till he is dead (j) ; and when an accused is sentenced to death by a
Sessions Judge he shall further inform him of the period within which, if he
wishes to appeal, his appeal shall be preferred (k). Under the Limitation Act
(IX of 1908) Art. 150, such period has been prescribed as seven days from the
date of sentence. When the Court of Session passes sentence of (i) * * 4 death \ the
proceedings shall be submitted to the High Court and sentence shall not be ex-
ecuted unless it is confirmed by the High Court (1). There is no hard and fast
rule that because the murderer is of what is called tender age he must necessarily
escape the normal penalty prescribed by the law (m).

2. Transportation : — The Authors of the Code about this form of punish-
ment say as follows : — “ The consideration which has chiefly determined us to retain
that mode of punishment is our persuasion that it is regarded by the natives of
India, particularly by those who live at a distance from the sea, with peculiar
fear. The pain which is caused by punishment is an unmixed evil. It is by
the terror which it inspires that it produces good ; and perhaps no punishment
inspires so much terror in proportion to the actual pain which it causes as the
punishment of transportation in this country. Prolonged imprisonment may
be more painful in the actual endurance ; but it is not so much dreaded before-
hand ; nor does a sentence of imprisonment strike either the offender or the
bystanders with so much horror as the sentence of exile beyond what they call
the Black Water. This feeling, we believe, arises chiefly from the mystery which
overhangs the fate of the transported convict. The separation resembles that
which takes place at the moment of death. The criminal is taken for ever from
the society of all who are acquainted with him, and conveyed by means of which
the Natives have but an indistinct notion over an element which they regard with
extreme awe, to a distant country of which they know nothing, and from which
he is never to return. It is natural that this fate should impress them with a deep
feeling of terror. It is on this feeling that the efficacy of the punishment depends,
and this feeling would be greatly weakened if transported convicts should fre-
quently return, after an exile of seven or fourteen years, to the scene of their offences,
and to the society of their former friends ” (n).

No sentence of transportation shall specify the place to which the person
sentenced is to be transported (o).

Transportation for life must be awarded in cases of offence under s. 226,
unlawful return from transportation, and for being a thug (s. 311). Sentence of

(i) Note A.

(j) Vide, s. 368 (1), Criminal Procedure Code.

(k) S. 371 (3), Criminal Procedure Code.

(l) S. 374, Criminal Procedure Code.

(m) Prodyot Kumar Bhatiacherjee , (1932) 33 Cr. L. J* 837 : A. I. R. (1933) C. I.
(S. B.).

(4) Note A.

(o) S. 368 (2), Criminal Procedure Code.

58

THE INDIAN PENAL CODE

[ QpAP. Ill

transportation may be inflicted in the following sections of the Code: — s. 121,
121 -A, 122, 124-A. 125, 128, 130, 131, 132, 194, 195, 225,225-A, 226. 232, 233,
255, 302, (murder in which case, alternative with Death, )304, 305, 307, 311, 313,
314, 315, 326, 329, 364, 371, 376, 377, 388, 389, 394, 396, 400, 409, 412, 4i3,
436, 437, 449, 459, 460, 467, 472, 474, 475, 477, and 511.

3. Penal Servitude •* — The punishment of * penal servitude * which i ■ a
substitute for transportation is applicable only to Europeans and Americans (p).
The preamble to the Penal Servitude Act (XXIV of 1855 ) which applies to
Europeans and Americans in cases where but for that Act they would have to
unde go sentence of transportation, runs as follows : — “ Whereas by reason of
the difficulty of providing a place to which Europeans or Americans can with
safety to their health, be sent for the purpose of undergoing sentences of trans-
portation or of imprisonment for long terms. ” This form of punishment is
inadmissible in the case of Indians. It consists in keeping an offender in con-
finement and compelling him to labour.

Persons sentenced to penal servitude are, during the term of the sentence,
confined in such prison within British India as the Government of India directs,
and kept to hard labour (q).

4. Imprisonment : — Offences which are punishable with imprisonment
and for which the offender is also liable to fine, cannot be punished with fine only,
but some term of imprisonment must be awarded (r).

5. Forfeiture : — The Authors of the Code observe as follows : — “ The
forfeiture of property is punishment which we propose to inflict only on persons
guilty of high political offences. The territorial possessions of such persons
often enable them to disturb the public peace, and to make head against the Govern-
ment ; and it seems reasonable that they should be deprived of so dangerous a
power” (s). According to Blackstone, ” The true reason and only substantial
ground of any forfeiture for crimes consists in this that all property is derived
from society, being one of those civil rights which are conferred upon individuals,
in exchange for that degree of natural freedom, which every man must sacrifice
when he enters into social communities. If, therefore, a member of any natural
community violates the fundamental conduct of his association, by transgressing
the municipal law, he forfeits his right to such privileges as he claims by that
contract and the State may justly resume that portion of the property, or any
part of it which the laws have before assigned him ” (t).

In England, forfeiture was abolished in 1870 by 33 and 34 Viet. c. 23 8. 1.
In America, also, forfeiture has been abolished.

‘ Forfeiture ’ in the Code may be divided into four classes : —

(a) Absolute forfeiture of all property. This is compulsory in the offences

under Ss. 121 and 122.

(b) In cases of offences punishable with death, forfeiture may be ordered
(s. 62).

(c) In cases where a person is convicted of any offence for which he shall

be transported or sentenced to imprisonment for a term of seven years,
forfeiture of the rents and profits of all his moveable and immoveable

(p) Duma Baidya, (1896) 19 M. 483 at p. 485. ~~

(q) The Prisoners’ Act (IV of 1900) s. 21.

(r) Chanviova Kom Shidram Sheth, (1863) I. B. H. C. R. 4 ; Rama bin Rabhaji,
(1863) I. B. H. [C. R. 34; Menazoodin , (1864) 2 W. R. (Cr.) 33; Shaikh Dulloo V.
Zainah Bebee, (1871) 16 W. R. (cr.) 17 ; Dharjit , (1929) 27 A. L. J. 400.

(s) Note A.

(t) 4 Blackstone, 383, 384. *

SEC. 54 3 OF PUNISHMENTS 59

estate during the period of transportation or imprisonment may be
ordered (s.62).

(d) Forfeiture of specific property shall Le ordered in case of conviction of

an accused under Ss. 126, 127 and 129.

6. Fine : — The Authors of the Code observe as follows : — “ Fine is one of
the moSt common punishment in every part of the world, and it is a punishment
the advantage of which is so great and obvious, that we propose to authorise the
Courts to inflict it in every case, except where forfeiture of all property is neces-
sarily part of the punishment. Yet the punishment of fine is open to some objec-
tions. Death, imprisonment, transportation, banishment, solitude, compelled
labour, are not, indeed, equally disagreeable to all men. But they are so disagree-
able to all men that the legislature, in assigning those punishments to offences,
may safely neglect the differences produced by temper and situation. With fine,
the case is different. In imposing a fine, it is always necessary to have as much
regard to the pecuniary circumstances of the offender as to the character and
magnitude of the offence. The mulct which is ruinous to a labourer is easily

borne by a tradesman, and is absolutely unfelt by a rich zemindar

Fine is a peculiarly approximate punishment for all offences to which men
are prompted by cupidity, for it is a punishment which operates directly on the
very feeling which impels men to such offences. A man who forges a bill of ex-
change, for example, who receives stolen goods, or who commits criminal breach
of trust, ought to be so fined as to reduce him to poverty. M The maximum sen-
tence whether of fine or of imprisonment, provided for by law, represents the
sentence to be inflicted in extreme cases (u).

7. Whipping : — This form of punishment is added by the Whipping Act
under which offenders afe liable to whipping : —

(1) As an alternative punishment when offences under Ss. 378, 380, 382, 443,

444, 445, and 446 of the Penal Code are committed.

(2) As in lieu of or additional punishment when offences under Ss. 375, 377,

390, and 391 of the Penal Code are committed.

(3) When they are juvenile offenders and commit certain offences specified

in s. 5 of the Whipping Act (v).

Flogging as a mode of punishment has now been abandoned in Europe.

The mode in which this sentence is to be executed is described in the Code
of Criminal Procedure (Ss. 390-396).

54 . In every case in which sentence of death shall have
been passed, the Government of India or
«S“3*2S. At Government of the place within which

the offender shall have been sentenced may,
without the consent of the offender, commute the punishment for
any other punishment provided by this Code.

The principle of this section according to the framers of the Code is
as follows : — “ It is evidently fit that the Government should be empowered to
commute the sentence of death for any other punishment provided by the Code.
It seems to us also very desirable that the Government should have the power of
commuting perpetual transportation for perpetual imprisonment. Many cir-
cumstances, of which the executive authorities ought to be accurately informed,
but which must often be unknown, to the ablest judge, may, at particular times,

(u) Ganga Sugar, A. I. R. (1919) A. 919 (924). ~~

(v) See Whipping Act IV of 1909, Ss- 3, 4, 6 and 0.

60

THE INDIAN PENAL CODE

[CHAP. Ill

render it highly inconvenient to carry a sentence of transportation into effect.
The state of those remote provinces of the Empire, in which convict settlements
are established, and the way in which the interest of those provinces may be
affected by any addition to the convict population, are matters which lie altogether
out of the cognizance of the tribunals by which those sentences are passed, and
which the Government is only competent to decide (w)."

Murder of supposed wizard : — A sentence of death was commutted
into one of transportation for life in the case of a prisoner who committed murder
in the belief that the deceased was a wizard and the cause of his child’s illness,
and that by killing the deceased, the child’s life might he saved (x).

Postponement of capital sentence on pregnant woman . — “ If a woman
sentenced to death is found to be pregnant, the High Court shall order the execu-
tion of the sentence to be postponed, and may, if it thinks fit, commute the sen-
tence to transportation for life ** (y).

Probable accident in execution Where the condition of the convict
rendered it likely that, if he were hanged, decapitation would ensue, the sentence
of death was commutted to one of transportation tor life fz).

55. In every case in which sentence of transportation for
Commutation of sen- life shall have been passed, the Government
tence of transportation of India or the Government of the place
for !l t ' within which the offender shall have been

sentenced may, without the consent of the offender, commute
the punishment for imprisonment of either description for a
term not exceeding fourteen years.

Procedure : — Ss. 401 and 402 of the Code of Criminal Procedure provide
for power to suspend, remit or commute sentences.

56. Whenever any person being an European or Ame-
Sentcnce of Europeans ncan is convicted of an offence punishable
and Americans to peua'. under this Cede with transportaticn, the
servitude. Court shall sentence the offender to penal

servitude instead of transportation according to the provisions

of Act XXIV of 1855:

Provided that, where an European or American offender

„ . would, but for such act, be liable to be

Proviso as to sen- j j j ’. , .

tence for term ex- sentenced or ordered to be transported for

ceeding ten years, but a t errn exceeding ten years, but not for life,

no. lor 1,1.. ^ 8l]>u ^ )iab , e tQ be ra|#n?d „

ordered to be kept in penal servitude for such term exceeding six
years as to the Court seems fit, but not for life.

Legislative changes . — The proviso was added by the Indian Penal Code
Amendment Act, 1870 (XXVII of 1870), s. 3.

Analogous Law : — Act XXIV of 1855 is the Penal Servitude Act borrowed
from the English Statutes 16 and 17, Viet. c. 99.

(w) Note A.

(x) Ooram Sungara, (1866; 0 W. R. (Cr.) 82.

(y) S. 382, Criminal Procedure Code oi 1923.

(z) Boodhoo Jolaha, (1878) 2 C. L. R. 216,

OF PUNISHMENTS

SECS. 57-59]

81

9 European 9 : — This word is explained by the Penal Servitude Act to include
any person usually designated a European British subject.

9 European British subject * has not been defined in the Code, but accord-
ing to the defin tion given in the Criminal Procedure Code of 1923, means (f) any
subject of His Majesty of European descent in the male line born, naturalised or
domiciled in the British Islands or any Colony, or (ii) any subject of His Majesty
who is the child or grand-child of any such person by legitimate descent (a).

Procedure : — For the special procedure relating to cases in which European
and Indian British subjects are concerned see Chapter XXXIII of the amended
Code of Criminal Procedure.

57. In calculating fractions of terms of punishment.

Fractions of terms of transportation for life shall be reckoned
punishment. as equivalent to transportation tor twenty

years.

Transportation for life has row come to mean transportation for 20 years
after which period the convict mpy come back if be I kes, though as a matter
of fact /{he Government treats such a sentence as one for a certain number of years.

58. In every case in which a sentence of transportation
offenders sentenced is L Pf s L ed ’ the offender, until he is transported,

to transportation how shall be dealt with m the same manner as
d orted W ' th 11111,1 trans ' if sentenced to rigorous imprisonment, and
por e ’ shall be held to have been undergoing his

sentence of transportation during the term of his imprisonment.

' 59. In every case in which an offender is punishable with
imprisonment for a term of seven years or
stJa^o^mpr/sonmcnt!" upwards, it shall be competent to the Court
which sentences such offender, instea • of
awarding sentence of imprisonment, to sentence the offender
to transportation for a term not less than seven years, and not
exceeding the term for which by this Code such offender is liable
to imprisonment.

Principle : — This section only enacts a general rule to the effect that in the
case of offences for which no transportation is specially mentoned as a punish-
ment and which are punishable with imprisonment for a term of 7 years or upwards,
it is competent to the judge* to substitute a sentence of transportation as a sub-
stantive sentence for that of imprisonment (b).

Their Lordships of the Judicial Committee have upheld the uniform decisions
of the Indian Courts which held that while this section and s. 304 (1) of the Code
authorise a sentence of transportation for life, they do not empower a Court to
impose a sentence of transportation for a term of years exceeding the maximum
term of imprisonment to which the offender is liable (c).

Scope : — This section applies exclusively to cases in which the offender
may legally be sentenced by the Court trying him to imprisonment for seven

„ (a) S. 4 (i). Criminal Procedure Code.

(b) Kinhussa , (1882) 5 M. 28 at p. 29,

(c) Sayyapu Reddi Chinnaya Dhora, (1920) 48 I. A. 35 : 44 M. 297 : 40 M. L. J,
194 : 13 L. W. 223 : 25 C. W. N. 514 : 33 C. L. J. 222 : 23 Bom. L. R. 705 : 19
A. L. ]. 164 : 59 I. C. 920 (P. C.).

62

THE INDIAN PENAL CODE

[CHAP. Ill

years ; therefore, a magistrate who can imprison for only two years, has certain!y
no power to transport at all (d). This section necessarily gave power to a Court
which could sentence a prisoner to sentence him to seven years * transportation in
lieu of it, * but it never intended to give power to a Court which could not sen-
tence to imprisonment for more than two years to transportation for seven years, (e).
When an offence is punishable either with transportation for life or imprisonment
for a term of years (10 years), if a sentence of transportation for a term less than
life is awarded, such term can not exceed the term of imprisonment (10 years)
because the Allahabad High Court held/* While the Court has an option in de’er-
mining the duration of the term of imprisonment, it has no option in determ'ning
the duration of the term of transportation (f)."

Object : — At the time when the Indian Penal Code was prepared by the
Indian Law Commissioners, it was a rule of the Court of the Directors of the
East India Company that no native should be sentenced to transportation for a
period less than for life, it being the opinion at that time that a native of India,
if once transported, should never be allowed to return to this country. The
Indian Penal Code as prepared by the Law Commissioners did not provide * trans-
portation ’ as a punishment for any period short of life, and it did not g ve power
to the Government to commute a sentence of imprisonment for seven years into
transportation, except in cases where the prisoner was not of Asiatic blood and of
Asiatic birth. But when the Penal Code came to be altered, a different rule was
thought necessary. It was thought reasonable that natives of India as well as
Europeans and others should be sentenced to transportation for a period less than
for life, and that the reason for not allowing a native, who had once been trans-
ported, to return to India, no longer held good, and therefore, as the Penal Code
as prepared by the Indian Law Commissioners did hot provide transportation
as a punishment for any less period than for life, it was thought advisable, when
the Code was altered to enact by a general clause that in all cases in which an
offender should be punishable with imprisonment for seven years or upwards, the
Court should have power to sentence him to transportation instead of imprison-
ment, provided the term should not be less than seven years and should be liable
to imprisonment. This is the reason why s. 59 was introduced (g).

* In every case in which an offender is punishable with imprisonment
for a term of seven years or upwards * To bring s. 59 into operation the
punishment awarded on one offence alone must be 7 years’ imprisonment, and
cannot be made up by adding two sentences together and then commutting the
amalgamated period of transportation (h). The Calcutta High Court following
the case of Mooklee Kora (h) held that a general sentence of transportation for two
or more offences, when one only of the punishments awarded is seven years*
imprisonment, was illegal (»)• •

Transportation for a term less than seven years and not exceeding
the term for which by this Code such offender is liable to imprison*

ment t— Where an accused was convicted of an attempt at rape under s. 376,
I. P« C., and sentenced to seven years’ transportation, held that the sentence was
illegal as the maximum imprisonment for rape is 10 years and therefore the sen-
tence under s. 511, I. P. C., could not exceed 5 years, and a commutation of the

(d) Per Macpherson, J., in Boodhooa, (1868) 9 W. R. (cr.) 6 (F. B.) at p. 7.

(e) Per Peacock, C. J., Ibid at p. II.

(f) Naiada , (1875) I. A. 43 V. B. (45, 46) ; see also Allauddin, (1919) 20 Cr. L. J.

561 : 52 I. C. 49 (AH.). J

(g) Per Peacock, C. J., in Boodhooa, (1868) 9 W R. 6 at 10 and It,

(h) Moohtee Kora, (1865) 2 VV. R. (Cr.) I.

(i) Sh&nauUa and Addo t (1866) 5 W. R. (Cr.) 44.

SECS. 60-62]

OF PUNISHMENTS

63

sentence of seven years * rigorous imprisonment under s. 59, I. P. C., to 7 years *
transportation was held illegal (i).

Sentence under Special or Local law : — This section does not apply to
sentence under special or local law, but applies only to offenders convicted under
the Indian Penal Code. Transportation cannot therefore be ordered in the case
of offences punishable under the Indian Registration Act (k).

What Courts can commute 1 “ Apparently in the long consideration
which the Indian Penal Code underwent before it passed into law, it was con-
sidered that it would be more convenient to vest the power of passing sentence
of transportation in the Court which tried the prisoner, instead of in the Local
Government " (1),

Procedure : — This section must be read subject to s. 35 of the Criminal
Procedure Code. According to cl. (a) of s. 35 of the Code of Criminal Procedure
the maximum term of imprisonment awardable as an aggregate sentence fs 14
years and sentence of transportation in lieu of imprisonment awarded under s. 5)
of the Penal Code, is therefore subject to the limitation, which has been provided
by s. 35 of the Criminal Procedure Code, in the case of sentence of imprison-
ment (m).

Calcutta High Court Rule : — The correct mode of proceeding is to sen-
tence the offender to transportation, mentioning at the same time that under s. 59,
I. P. C„ such transportation is awarded instead of imprisonment, simple or rigo-
rous as the case may be (n).

60 . In every case in which an offender is punishable with

c . . imprisonment which may be of either des-

Sentence may be (in . • l li i \

certain cases of impri cnption, it shall be competent to the Court

sonment) wholly or part- w hich sentences such offender to direct in
v rigorous or s.rnp.e. ^ sen t ence that such imprisonment shall he

wholly rigorous, or that such imprisonment shall be wholly
simple, or that any part of such imprisonment shall be rigorous
and the rest simple.

As to the application of Ss. 60, and 63 to 74 to a Punjab Frontier District,
to the North-Western Frontier Province or to Baluchistan, see the Frontie,
Crimes Regulation, 1901 (III of 1901), s. 13 (2), 61 Punjab and N. W. Code.
As to the application of Ss. 60, 63, 64, 65, and 68 to 74 inclusive to the Sindh
Frontier, see s. 28 (I) of t the Sindh Frontier Regulation 1892 (111 of 1892)
Bom. Code.

61 . (Sentence of forfeiture of property) Repealed by s. 4

of Act XVI of 1921.

62 . ( Forfeiture of property , in respect of offenders punish-
able with death, transportation or imprisonment) Repealed by s. 4

of Act XVI of 1921.

(j) Joseph Meriam, (1868) 10 W. R. Cr. 10.

(k) Mathuramalingam , (1900) 11 M. L. J. 127.

(l) Per Jackson, J., in Boodhooa, (1868) 9 W. R. (Cr.) 6, 8.

(m) 7 Central Provinces Law Reports 29.

(n) * C. H. C. R. & O. Vol. L, Ch. I., r. 64, p. 26.

64

THE INDIAN PENAL CODE

[CHAP. Ill

63 .

Amount of fine.

Where no sum is expressed to which a fine may extend,
the amount of fine to which the offender is
liable is unlimited, but shall not be excessive.

See notes to s. 60, supra , as regards the extent of application of this section.

The policy underlying this section was the subject of much controversy at
the draft stage of the Bill. The Authors of the Code observe as follows : — “ It
is impossible to fix any limit to the amount of a fine which will not either be so
high as to be ruinous to the poor, or so low as to be no object of terror to the rich.
There are many millions in India who would be utterly unable to pay a fine of
50 rupees ; there are hundreds of thousands from whom such a fine might be
levied, but whom it would reduce to extreme distress ; there are thousands to
whom it would give very little uneasiness ; there are hundreds to whom it would
be a matter of perfect indifference, and who would not cross a room to avoid i t.
The number of the poor in every country exceeds in a very great ratio the number
of the rich. The number of poor criminals exceeds the number of rich criminals in
a still greater ratio. And to the poor criminal it is a matter of absolute indifference
whether the fine to which he is liable be limited or not, unless it be so limited as
to render it quite inefficient as a mode of punishing the rich. To a man who has
no capital, who has laid by nothing, whose monthly* wages are just sufficient to
provide himself and his family with their monthly rice, it matters not whether
the fine for assault be left to be settled by the discretion of the Courts, or whether
a 100 rupees be fixed as the maximum. There are no degrees in impossibility.
He is no more able to pay a 100 rupees than to pay a lakh. A just and wise judge,
even if entrusted with a boundless discretion, will not, under ordinary circumstances,
sentence such an offender to a fine of a 100 rupees. And the limit of a 100 rupees
would leave it quite in the power of an unjust or inconsiderate judge to inflict on
such an offender all the evil which can be inflicted on him by means of fine. . . .
... .It appears to us that the punishment of fine is a peculiarly appropriate punish-
ment for all offences to which men are prompted by cupidity. For it is a punish-
ment which operates directly on the very feeling which impels men to such offences.
A man? who has been guilty of great offences arising from cupidity, of forging a
bill of exchange, for example, of keeping a receptable for stolen goods, or of ex-
tensive embezzlement, ought, we conceive, to be so fired as to reduce him to
poverty. That such a man should, when his imprisonment is over, return to the
enjoyment of three-fourths of his property, a property which may be large and
which may have been accumulated by bis offences, appears to us highly objection-
able. Those persons who are most likely to commit such offences would often
be less deterred by .knowing that the offender had passed several years in imprison-
ment,.than encouraged by seeing him, after his liberation, enjoying the far larger
part of his wealth ” (o). •

Scope : — This section provides that in every case of an offence punishable
with fine only, it shall be competent to the Court to direct that in default of pay-
ment the offender shall suffer imprisonment fp).

Procedure : — See s. 386 amended Code of Criminal Procedure of 1923
which has amended the old section substantially laying down specifically the
procedure for the recovery of fine and whereas, under the old Criminal Procedure
Code, fine could be recovered by distress and sale of moveable property, under the
present Code of Criminal Procedure, it can be recovered by sale of both moveable
and immoveable property. Moveable property in which the offender has
an undivided fractional share is not liable to attachment by seizure and

(6) Note A.

(p) (1869) 6 M. H. C. App. V; Amrita Lai Bose, V. The Corporation of Calcutta ,

(Star Theatre F. B.) 44 C. 1025: 21 C. W. N. 1017 (F. B.).

OF PUNISHMENTS

SEC. 04]

65

sale (p,). See also amended s. 545, Criminal Procedure Code, for “ Powers of
Court to pay expenses or compensation out of fine.”

Dally fine : — An order for payment of a daily fine is illegal (q). Of course
violation of a bye-law is expressly punishable with a daily fine, in which case such
a fine is legal but such cases do not arise under the Code (r).

Amount of fine should not be excessive : — The Lahore High Court has
held that however serious may be the offence, a fine should not be imposed which
it is wholly impossible for the accused person to pay without ruining himself and
inflicting great hardship upon his family. The maximum fine to be imposed
should depend in every case upon the position of the accused in life (s).

Collective sentence of Fine >— In case of joint offenders, the sentence
must impose a specific fine on each prisoner (t).

64. In every case of an offence punishable with imprison^

Sentence of impri- ment as well as fine, in which the offender

sonment for non-pay- is sentenced to a fine, whether with or with-
ment of fine. * *

out imprisonment,

and in every case of an offence punishable (with imprison-
ment or fine, or) with fine only, in which the offender is sentenced
to a fine,

it shall be competent to the Court which sentences such
offender to direct by the sentence that, in default of payment
of the fine, the offender shall suffer imprisonment for a certain
term, which imprisonment shall be in excess of any other impri-
sonment to which he may have been sentenced or to which he
may be liable under a commutation of a sentence.

See notes to s. 60 supra as to the application of this section.

Legislative changes: — The first two clauses of s. 64 were substituted for
the words 4 in every case in which an offender is sentenced to a fine * by the
Indian Penal Code Amendment Act, 1882 (VIII of 1882), s. 2. These words ‘ with
imprisonment or fine * were inserted by the^ Indian Criminal! Law Amendment
Act, 1886 (XX of 1886), s. 21 (2).

The first two clauses do not apply in the case of hill-tribes to which the Kachin
Hill-tribes Regulation, 1895 (I of 1895), is applied, see Ss. I (3) and 3 of that
Regulation, Bur. Code. In the case of the hill-tribes to which the Chin Hill
Regulation, 1896 (V of 1896) is applied, for the two said clauses, the words 44 In
every case in which an offender is sentenced to a fine ’’ is substituted, see, s. 1 (3)
and the Schedule to that Regulation, Bur. Code.

Scope : — “ The wording of s. 64, it must be admitted, is not happy, but I
am of opinion that the Legislature intended by it to provide for the award of im-
prisonment in default of payment in all cases in which fine can be imposed. Those
cases the section divides into three classes* viz . — offences (1) "punishable with
imprisonment as well as fine,* (2) 4 punishable with imprisonment and fine *
and (3) 4 punishable with fine only.* The first of these classes in my opinion

(pi) Pramatha Bhusan Roy, (1933) 37 C. W. N. 567.

(q) Ram Krishna Biswas V. Mohendra Nath Majumdar, (1900) 27 C. 565; Love
(1872) 18 W. R. (Cr.) 44 ; Anesuddin Miah , (1873) 20 W. R. (Cr.) 64.

(r) Kristadhone Dutta V. Chairman of the Municipal Commissioners of the Suburb
of Calcutta , (1886) 25 W. R. (Cr.) 6.

^ (s) Abdulla, (1922) 5 L, U J. 271 : 24 Cr; L. J. 278 ; 71 I. C. 993 : A. I. R.

(1924) Lah. 91.

(t) * I Weir 30.

66

THE INDIAN PENAL CODE

[CHAP. Ill

includes two classes t)iz.> (a) offences like the present punishable with imprisonment
or fine in the alternative, and (b) offences punishable, as most of those under
the Indian Penal Code are, with imprisonment or fine, or both, cumulatively ’* (u).

* Imprisonment as well as fine ’ : — This section applies to all cases where
the offence is punishable with imprisonment as well as fine, r.e., cases where fine
and imprisonment can be awarded and also those where the punishment may be
either fine or imprisonment but not both (v). Sentence of fine in addition to
imprisonment for a substantive term is inappropriate (w). Sentence of imprison**
ment in default of payment of fine must run from the expiry of the sentence under
s. 123, Cr. P. Code (x).

* Offence* — under this section is not only an offence punishable under
the Code but also includes an offence under any special or local law (y). In the
case of a conviction under the Town Nuisances Act (Madras) 1889, s. 3, the Madras
High Court held that a magistrate can impose a fine and also pass sentence of
imprisonment in default of fine (y). There is no authority under the Calcutta
Municipal Act to impose imprisonment in default of payment of fine, at any rate
for such offences to which a daily penalty is assigned in addition to the substantive
fine (z).

Maintenance : — The magistrate may sentence the defaulter in a maintenance
case to a proportionate term of imprisonment (a). The maximum imprisonment
that can be imposed in default of payment of maintenance is one month for
each months arear, and if there is a balance representing the arears for a portion
of a month, a further term of a month’s imprisonment may be imposed for such
arear (b).

65. The term for which the Court directs the offender
to be imprisoned in default of payment
m ^lr‘lTr n ; °f a fine shall not exceed one-fburth of the
of fine when imprison term of imprisonment which is the maximum
ment and fine award fixed f or t fi e 0 ff e nce, if the offence be

punishable with imprisonment as well as fine.

The principle underlying this section has been explained by the Authors of
the Code as follows : —

“ The next question which it became our duty to consider was this : — When
fine has been imposed, what measures shall be adopted in default of payment ?
And here two modes of proceeding, with both of which we were familiar, naturally
occurred to us. The offender may be imprisoned, till the fine is paid ; or he may
be imprisoned for a certain term, such imprisonment being considered as stand-
ing in place of the fine. In the former case, the imprisonment is used in order to
compel him to part with his money; in the latter case the imprisonment is a
punishment substituted for another punishment. Both modes of proceeding
appear to us to be open to strong objections. To keep an offender in imprison-
ment till his fine is paid is, if the fine be beyond his means, to keep him in imprison-
ment all his life ; and it is impossible for the best judge to be certain that he may

(u) ' Per Benson J. f in Queen Empress V. Yakooh Sahib, (1808) 22 M. 238, at p. 240.

(v) Yakoob Sahib, (1898) 22 M. 238. (240, 241).

(w) Islam, (1930) 35 C. W. N. 519.

(x) Nan E, (1931) 9 R. 612, following Nga Pye. (1931) 9 R. 110.

(y) Rappel, (1895) 18 M. 490.

It) Basanta Kumari V. Corporation of Calcutta, (1911) 15 C. W. N. 906, (908) •
12 Cr. L. J. 375.

(a) Bhiku Khan, (1897) 25 C. 291.

(b) Allapichai RavcUkur V. Mohidin Bibi, (1896) 20 M. 3 ; contra, Sidheswar

Jeor V. Gyanada Dasi, (1894) 22 C. 291. ,

SEC. 65]

OE PUNISHMENTS

67

not sometimes impose a fine which shall be beyond the means of an offender.
Nothing could make such a system tolerable, except the constant interference of
some authority empowered to remit sentences; and such constant interference
we should consider as in itself an evil. On the other hand, to sentence an offender
to fine, and to a certain fixed term of imprisonment in default of payment, and
then to leave it to himself to determine whether he will part with his money, or
lie in gaol appears to us to be a very objectionable course. The high authority
of Mr. Livingston is here against us. He allows the criminal, if sentenced to a
fine exceeding one-fourth of his property, to compel the judge to commute the
excess for imprisonment at the rate of one day of imprisonment for every two
dollars of fine, and he adds that such imprisonment must in no case exceed ninety
days. We regret that we cannot agree with him ; the object of the penal law
is to deter from offences, and this can only be done by means of inflictions dis-
agreeable to offenders. The law ought not to inflict punishments unnecessarily
severe ; but it ought not, on the other hand, to call the offender into council with
his judges, and to allow him an option between two punishments. In general,
the circumstance that he prefers one punishment raises a strong presumption
that he ought not to suffer the other. The circumstance that the love of money
is a stronger passion in his mind than the love of personal liberty is, as far as it
goes, a reason for our availing ourselves rather of his love of money than of his
love of personal liberty for the purpose of restraining him from crime. To look
out systematically for the most sensitive part of a man’s mind, in order that we
may not direct our penal sanctions towards that part of his mind, seems an injudi-
cious policy.

" We are far from thinking that the course which we propose is unexception-
able ; but it appears to nmto be less open to exception than any other which has
occurred to us. We propose that, at the time of imposing a fine, the Court shall
also fix a certain term of imprisonment which the offender shall undergo in default
of payment. In fixing this term, the Court will in no case be suffered to exceed a
certain maximum, which will vary according to the nature of the offence. If the
offence be one which is punishable with imprisonment as well as fine, the term
of imprisonment in default of payment will not exceed one-fourth of the longest
term of imprisonment fixed by the Code for the offence. If the offence be one
which by the Code, is punishable only with fine, the term of imprisonment for
default of payment will in no case exceed seven days.

” But we do not mean that this imprisonment shall be taken in full satisfaction
of the fine. We cannot consent to permit the offender to choose whether he will
suffer in his person or in his property. To adopt such a course would be to grant
exemption from the punishment of fine to those very persons on whom it is pecu-
liarly desirable that the punishment of fine should be inflicted, to those very persons
who dislike that punishment most, and whom the apprehension of that punishment
would be most likely to restrain. We therefore propose that the imprisonment
which an offender has undergone shall not release him from the pecuniary obliga-
tion under which he lies. His person will, indeed, cease to be answerable for the
fine ; but his property will for a time continue to be so. What we recommend
is that, at any time during a certain limited period, the fine may be levied on his
effects by distress. If the fine is paid or levied while he is imprisoned for default
of payment, his imprisonment will immediately terminate, and if a portion of the
fine be paid during the imprisonment, a proportional abetment of the imprison-
ment will take place.

M It may perhaps appear to some persons harsh to imprison a man for a non-
tipyment of a fine, and, after he has endured his imprisonment to take his property
by distress in order to realize the fine.£ But this harshness is rather apparent than
real ; if- the offender, having the means of paying the fine chooses rather to lie

68

THE INDIAN PENAL CODE

[CHAP. Ill

in prison than to part with his money, his case is the very case in which it is most
desirable that the fine should be levied, and he is the very convict who has least
claim to indulgence. The confinement which he has undergone may be regarded
as no more than a reasonable punishment for his obstinate resistance to the due
execution of his sentence. If the offender has not the means of paying the fine
while he continues liable to it, he will be quit for his imprisonment. There
remains another case ; that of an offender who, being really unable to pay his fine,
lies in prison for a term, and within six years after his sentence acquires property.
This case is the only case in which it can, with any plausibility, be maintained that
the law, as we have framed it, would operate harshly. Even in this case, it is
evident that our law will operate far less harshly than a law which should provide
that an offender sentenced to a fine should be imprisoned till the fine should be
paid. Under both laws imprisonment is inflicted, under both a fine is exacted.
But the one law liberates the offender on payment of the fine, and also fixes a limit
beyond which he cannot be detained in gaol, whether the fine be paid or not. The
other law keeps him in confinement till the money is actually paid. It is, therefore,
at least as severe as ours on his property, and is immeasurably more severe on his
person” (c).

See note to s. 60 supra . for application to Punjab Frontier District and
other provinces.

Scope : — The sentence of imprisonment in default should not exceed one-
fourth of the maximum term provided for the offence (d).

Imprisonment as well as fine : — These words in section 65 must be under-
stood in the same sense as those words in s. 64 (e).

In case of assault (s. 352) a sentence inflicting a fine bf rupees fifty and in default
of payment of that fine awarding a sentence of rigorous imprisonment for one
month was held to be illegal as s. 352 limits the imprisonment to a term of three
months (f).

Applicability of the section to special and local laws -The principle
of this section applies also to offences punishable under the special law (g).

Procedure : — See s. 33 (b), Criminal Procedure Code which runs as follows : —
” In any case decided by a magistrate where imprisonment has been awarded as
a part of the substantive sentence, the period of imprisonment awarded in default
of payment of the fine shall not exceed one-fourth of the period of imprisonment
which such magistrate is competent to inflict as punishment for the offence other-
wise than as imprisonment in default of payment of the fine.”

It has been held that s. 33 of the Criminal Procedure Code of 1882 is to be
read with this section (g x ).

A magistrate is not empowered to award imprisonment in default of payment
of fine in excess of the term prescribed by s. 65 (h). A first class magistrate can
award imprisonment of six months under each count in default of fine for three
charges of bribery (i).

(c) Note A.

(d) Yakub Sahib, (1898) 22 M. 238.

(e) Ibid p. 240.

(f) Jehan Bux , (1871) 10 W. R. (Cr.) 42.

(g) Yakub Sahib, (1898) 22 M. 238; Darba, I. A. 401 (F. B.).

(gl) Vonkafesagadw, (1887) 10 M. 185, (F. B.), following 10 M. 166 (note) overruling
Mahammad Saib, (1877) 1 M. 227. 8

(h) Satram Ciha, (1866) 6 W. R. (Cr.) 51; Darba, (1877) 1 A. 461 (F. B.)«
Ghasita, 3 I.. L. J. 340 : 22 Cr. L. J. 145 : 59 I. C. 849.

(i) Harsukh Rai, P. W. R. 3 (Cr.) of 1919. .

OF PUNISHMENTS

69

SECS. 66-68]

66 . The imprisonment which the Court imposes in

_ . .. , default of payment of a fine may be of any

prisonment'ior non-pay- description to which the offender might
ment of fine. have been sentenced for the offence.

Applicability of the sections: — See note to s. 60 supra.

Nature of alternative imprisonment : — If the sentence is rigorous impri-
sonment, sentence in default of fine will be rigorous, and the Court cannot award
simple imprisonment (j).

67. If the offence be punishable with fine only (the
imprisonment for imprisonment which the Court imposes

non-payment of fine, in default ot payment ot the hne shall be
w w en -£ ff <; nce p , unish ' simple, and ) the term for which the Court
directs the offender to be imprisoned, m
default of payment of fine, shall not exceed the following scale,
that is to say (for any term not exceeding two months when the
amount of the fine shall not exceed fifty rupees, and for any term
not exceeding four months when the amount shall not exceed
one hundred rupees, and for any term not exceeding six months
in any other case).

Legislative Changes : — The words “ the imprisonment which the Court
imposes in default of the fine shall be simple, and " were inserted by the Indian
Penal Code Amendment Act, 1882 (VIII of 1882), s. 3. For the words in the

second bracket, viz., [for any term in any other case] in the case of the

hill-tribes to which the Kachin Hill-tribes Regulation, 1895 (I of 1895), is applied,
the following words have been substituted : —

" For any term not exceeding four months when the amount of the fine shall
not exceed fifty rupees, and for any term not exceeding eight months when the amount
shall exceed one hundred rupees, and for any term not exceeding twelve months in any
other case'*. See Regulation I of 1895, Ss.* 1(3) and 3, Bur. Code.

This substitution is also made in the case of the hill-tribes to which Chin
Hill Regulations, 1896 is applied, see Reg. V of 1896, Bur. Code.

Scope : — This section provides for maximum term of imprisonment that
can be imposed in default of fine. S. 67 refers solely to cases in which the offence
is punishable with fine only ; and has no application to offences punishable either
with imprisonment or with fine hut not with both. Such sentences are governed
by s. 65 of the Indian Pena] Code (k).

Procedure : — See s. 35(I)(a), Criminal Procedure Code which enacts : —
“ The Court of any magistrate may award such terms of imprisonment in default
of payment of fine as is authorised by law in case of such default : —

** Provided that — fa) the term is not in excess of the magistrate s powers
under the powers under the Code. *’ For levy of fine see s. 386 Cr. P. Code.

68. The imprisonment which is imposed in default of
T ^ payment of a fine shall terminate whert-

ter I ^Ste n aa n payment ever that fine is either paid or levied by
of ^e. ^ process of law.

* (j) Srimanta Kotal, (1867) 7. W. R. (Cr.) 31.

(k) .Yakub Sahib, (1898) 22 M. 238 ; Chander Proshad Singh, (1809) 10 W. R.
(Cr.) 3Q.

70

THE INDIAN PENAL CODE

[CHAP. Ill

Applicability of the lection t—See note to s. 60 supra.

Payment of fine : — In every case in which an offender is sentenced to fine,
it shall be competent to the Court which sentences the offender to issue a warrant
for the levy of amount by distress and sale. The succesSor-in-office of a judge or
magistrate may levy a fine imposed by his predecessor (1).

Procedure : — See Ss. 386, 387, 388 and 390 of the Code of Criminal Procedure.

69. If, before the expiration of the term of imprison*
ment fi xe d in default of payment, such a

Termination of 1 m- . f « r « r . f i »ji

prisonmeut on payment proportion or the hne be paid or levied that

fine Proportiomi1 part ° f term imprisonment suffered in
default of payment is not less than propor-
tional to the part of the hne still unpaid, the imprisonment shall
terminate.

Illustration .

A is sentenced to a fine of one hundred rupees and to four months* imprisonment
in default of payment. Here, if seventy-five rupees of the fine be paid or levied before
the expiration of one month of the imprisonment, A will be discharged as soon as
the first month has expired. If seventy-five rupees be paid or levied at the time of
the expiration of the first month, or at any later time while A continues in imprison-
ment, A will be immediately discharged. If fifty rupees of the fine 4b§ paid or levied
before the expiration of two months of the imprisonment, A will' be discharged as
soon as the two months are completed. If fifty rupees be paid or levied at the time
of the expiration of those two months, or at any later time while A continues in im
prisonment, A will be immediately discharged.

Refund of fine : — Where a prisoner paid a portion of his fine i>ut^he suffered
the full term of imprisonment and as the fact of his payment o£ fine, owing to an
error, had not been communicated to the Jailor, it was held that the Court had
in such circumstances no power to refund the fine, the prisoner might apply to
the Government for refund of the fine thus paid (m). And when a fine is imposed
in addition to transportation and the whole or part of the fine is levied, it is the
duty of the sentencing Judge to inform the authorities of Port Blair of the fact (n).

Calcutta Rule : — Magistrates and Sub-Divisional Officers should 4>e careful
in all cases in which a person is sentenced to imprisonment in default of fine, to
see that if fine or a proportional part of it be paid or levied, immediate information
be given to the officer in charge of the Jail so that the prisoner may n6\ be kept in
illegal confinement (o).

70* The fine, or any part thereof >vhich remains unpaid,

Fine leviable within may be levied at any time within six years
six years, or during after the passing of the sentence, and
imprisonment. jf t U nder the sentence, the offender be liable

to imprisonment for a longer period than six years, then at any
Death not to dis- time previous to the expiration of that
charge property from period ; and the death of the offender does
liability. not discharge from the liability any property

which would, after his death, bt legally liable for his debts.

(1) Chandra Kumar Mitter V. Madhusudan Dey, (1868) 9 W. R, 60 (F. B.).

(m) 6 M. H. C. R. 44.

(n) Natha Mula, (1867) 4 B. H. C. (Cr. C.) 37.

(o) Bengal Govt. Leltei, No. 1060 J. 1864.

SEC. 70]

OF PUNISHMENTS

71

This section was enacted on the analogy of the procedure for recovery of
debts in civil cases. The Authors of the Code observe as follows : “We do not
mean that this imprisonment shall be taken in full satisfaction of the fine. We
cannot consent to permit tjie offender to choose whether he will suffer in his person
or in his property. To adopt such a course would be to grant exemption from
the punishment of fine to those persons on whom it is peculiarly desirable that
the punishment of fine should be inflicted, to those very persons who dislike that
punishment most, and whom the apprehension of that punishment would be
most likely to restrain. We therefore propose that the imprisonment which an
offender has undergone shall not release him from the pecuniary obligation under
which he lies. His person will, indeed, cease to be answerable for the fine ; but
his property will for a time continue to be so. What we recommend is, that at any
time during a certain limited period the fine may be levied on his effects by dis-
tress. If the fine is paid or levied while he is imprisoned for default of payment,
his imprisonment will immediately terminate, and if a portion of the fine be paid
during the imprisonment, a proportional abatement of the imprisonment will take
place. It may perhaps appear to some persons harsh to imprison a man for non-
payment of a fine, and, after he has endured his imprisonment, to take his property
by distress in order to realize the fine. But this harshness is rather apparent than
real ; . if the offender, having the means oi paying the fine, chooses rather to lie
in prison than to part with his money, his case is the very case in which it is most
desirable that the fine should be levied, and he is the very convict who has least
claim to indulgence. The confinement which he has undergone may be regarded
as no more than a reasonable punishment for his obstinate resistance to the due
execution of his sentence. If the offender has not the means of paying the fine
while he continues liable to it, he will be quit for his imprisonment. There re-
mains another <jpse, that of an offender who, being really unable to pay his fine, lies
in prison fol* a flfcrm, and within six years after his sentence acquires property.
This case is the only casfe in which it can, with any plausibility, be maintained that
the law, as we have framed it, would operate harshly. Even in this case, it is evident
that our law would operate far less harshly than a law which should provide that
an offender sentenced to a fine should be imprisoned till the fine should be paid.
Under both laws imprisonment is inflicted, under both a fine is exacted. But the
one law liberates the offender on payment of the fine and also fixes a limit beyond
which he cannotbe detained in gaol whether the fine be paid or not. The other
law keeps him in confinement till the money is actually paid. It is, therefore,
at least as severe as ours on his property, and is immeasurably more severe on his
person” (p)*

* within six years’: — The bar of six years provided by the section may
save the .property of the accused, but not his personal arrest. The liability for any
sentence of imprisonment awarded in default of payment of fine continues after
the expiration of six years (q). In a Bombay case it was held that the liability of
the immoveable property of the deceased could not be enforced by distress and that
section 386 of the (old) Crimind Procedure Code did not apply to such a case (r).
The Calcutta High Court has held that only moveable property can be attached,
that the immoveable property after the death of the offender cannot be enforced
by distress but by a suit (s). But in view of the amendment of section 386 of the
Criminal Procedure Code by the insertion of cl. (b) the Court may issue a warrant
to the Collector of the District authorising him to realise the amount by execution

(p) Note A.

(q) Ganes Sakharam , (1884) Rat. Uurep. Cr. 207; Modhu Sudhan, 3. W. R.

61 .

(r) Lallu Ketwar, (1868) 6 B. H. C. (Cr. C.) 63.

(si Sita Nath Mitlra, (1892) 20 C. 478. following Lallu Kerwar, (1808) 5 B.H.C.
(Cr.) 63.

72 THE INDIAN PENAL CODE [ CHAP. Ill

according to civil process against the moveable property, or both immoveable and
moveable property of the defaulter, and as such the Calcutta decisions, it is sub-
mitted, is honger good law.

The mere fact that a magistrate thought that the fine is written off as irre-
coverable and wrote it off in his register is no bar to its recovery within the period
allowed by law ft).

Procedure r—See s. 386, Criminal Procedure Code .

Calcutta High Court Circular : — A warrant issued under s. 386, Criminal
Procedure Code, for the levy of a fine, should ordinarily be directed to a police
officer (see. Form No. XXXVI 1, Schedule V, Criminal Procedure Code); and
the authority issuing it should set a time for the sale and for the return of the warrant.
If no one claims the property distrained, the police have the power of selling it
within the time specified in the warrant, without any previous reference to the
magistrate ; if a claimant come forward, then the ownership of the property
distrained must be determined by the magistrate, and not by the police. If at any
time subsequent to the return of the warrant, and within the period of six years
from the passing of the sentence, the fine or any part thereof, remains unpaid fs. 70
of the Pena) Code), and the magistrate has, from information gained in any way
reason to think that any moveable property belonging to the offender is within his
jurisdiction, he should issue a fresh warrant for the attachment and sale of such
property. Such warrant should be made returnable within a time^to be definitely
fixed therein (u).

Bombay Circular: — In cases where an Appellate Court has ordered a fine
inflicted by a Court of first instance to be refunded, the Appellate Court should
forthwith certify its order to the Court of first instance and the Court of first
instance should on receipt of the Appellate Court's order for su<& refund of the
fine, immediately prepare a payment order if the fine has been levied, and deliver
it to the payee whether he applies for it or not. The Court of first instance should
at the same time ascertain from the payee at what treasury or sub-treasury he
desires the refund to be made and at once direct the sub-treasury to make the re-
fund and inform the Appellate Court of having done so. The officer-in-charge
of the treasury or sub-treasury should on presentation of the payment order and
without requiring the applicant to furnish an official copy of the Appellate Court’s
order or judgment in any other document besides his bare application, make the
refund upon demand of the applicant as soon as he has furnished satisfactory proof
of his identity. In such cases a written application from the person entitled to
the repayment of the fine is not required ; and should an applicant for refund pre-
sent at any time such a written application, it should be accepted on plain paper
without any Court-fee. •

As soon as a fine or any part of it is recovered, information should immediately
be given to the Jailor of the slime. The responsibility is with the Court (v).

Madras Circular .—Whenever an Appellate Court other than the High Court
reduces or reverses a sentence of fine, it shall, if the fine has been levied, grant to
the appellant an order of refund. When the order of refund is presented to the
Court of first instance, it shall forthwith prepare the necessary order And deliver
it to the payee without requiring any formal application therefor (w).

(t) Latiful Hassan V. Mumtat AH Khan , (1906) A. W. N. 276 : 3 A. L. J. R.

818.

’ (u) C. H. C. R. Vol. 2 Ch. I, r. 117, p. 41, and r. 118, p. 42.

(v) Bom . H . C. Cr, Circular , p. 64.

(w) Madras Rules of Practice, p. 66. •

SEC. 71]

OF PUNISHMENTS

73

71 . Where any thing which is an offence is made up of
Limit of punishment Parts, any of which parts is itself an offence,
of offence made up of the offender shall not be punished with
several offences. the punishment of more than one of such

of his offences, unless it be so expressly provided.

[Where anything is an offence falling within, two or more
separate definitions of any law in force for the time being by
which offences are defined or punished, or where several acts,
of which one or more than one could by itself or themselves consti-
tute an offence, constitute, when combined a different offence,
the offender shall not be punished with a more severe punishment
than the Court which tries him could award for any of such
offences].

Illustration.

(а) A gives Z fifty strokes with a stick. Here A may have committed the offence
of voluntarily causing hurt to Z by the whole beating, and also by each of the blows
which make up the whole beating. If A were liable to punishment for every blow,
he might be imprisoned for fifty years, one for each blow. But he is liable only to
one punishment for the whole beating.

(б) But if, while A is beating Z, Y interferes, and A intentionally strikes Y , here,
as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z,
A is liable to one punishment for voluntarily causing hurt to Z, and to another for
the blow given to Y.

This section deals with the limit of punishment in cases where the offence
is made up of two or more parts and has nothing to do with the question of con-
viction.

As to the punishment to be awarded, the rule is now to be found in Ss. 71 and
72 of the Indian Penal Code and s. 35 of the Code of Criminal Procedure (x).

Legislative Changes : — The last three clauses beginning with the words in
brackets, “[where anything is an offence falling within two or more definitions

for any one of such offences]" were added by the Indian Penal Code

Amendment Act 1882 (VIII of 1882) s. 41 .

Analogous Law : — See s. 35 and s. 235 of the Code of Criminal Procedure.
The amended Code of Criminal Procedure (Act XXXV of 1923) by omitting the
Explanation and illustration to fold) s. 35 and by silting definitely 44 when a f>erson
is convicted at one trial of two or more offences , the Court may, subject to the provi-
sions of s,l\ of the Indian Pinal Code " bas made it clear that s. 35 of the Code of
Criminal Procedure must be read subject to this section. The (old) s. 35 of the Code
of Criminal Procedure referred to 44 two or mere distinct offences ” each of which
was separately punishable but the Explanation to that section was in the following
terms : “ Separate offences which come vnthin the provisions of s. 71 of the Indian
Penal Code are not distinct offences within the meaning of this section" Now by
reason of the omission of the word * distinct by the amended Code of Criminal
Procedure (XXXV of 1923) s. 35 applies to all cases whether the offences are dis-
tinct or not. S. 235 of the Code of Criminal Procedure provides as follows : —

S. 235, (I). If, in one series of acts so connected together as to form the
same transaction, more offences than one are committed by the same person, he
may be charged with, and tried at one trial for, every such offence.

(at) Nirichon , (1888) 12 M. 36 (38).

74

THE INDIAN PENAL CODE

[CHAP. Ill

( 2 ) If the acts alleged constitute an offence falling within two or more sepa-
rate definitions of any law in force for the time being by which offences are defined
or punished, the person accused of them may be charged with, and tried at the trial
for, each of such offences.

(3) If several acts, of which one or more than one would by itself or them-
selves constitute an offence, constitute when combined a different offence, the
person accused of them may be charged with, and tried at one trial for, the offence
constituted by such acts when combined, and for any offence constituted by any
one, or more, of such acts.

(4) Nothing contained in this section shall affect the Indian Penal Code,

s. 71.

Illustration.

Illustrations to sub-section (1). —

(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt
to C, a constable in whose custody B, was. A may be charged with, and convicted
of, offences under sections 225 and 333 of the Indian Penal Code.

(b) A commits house-breaking by day with intent to commit adultery, and com-
mits in the house so entered adultery with P's wife. A may be separately charged
with, and convicted of, offences under sections 454 and 497 of the Indian Penal Code.

(c) A entices B, the wife of C, away from C, with intent to commit adultery with
B, and then commits adultery with her. A may be separately charged with, and
convicted of, offences under sections 498 and 497 of the Indian Penal Code.

(d) A has in his possession several seals, knowing them to be counterfeit and
intending to use them for the purpose of committing several forgeries punishable
under section 465 of the Indian Penal Code. A may be separately charged with,
and convicted of, the possession of, each seal under section 4 73 of the Indian Penal Code.

(*) With intent to cause injury to B, A institutes a ciiminal proceeding against
him, knowing that there is no just or lawful ground for such a proceeding ; and also
falsely accuses B of having committed an offence, knowing that there is no just or
lawful ground for such charges. A may be separately charged with, and convicted
of, two offences under section 211 of the Indian Penal Code.

(/) A , with intent to cause injury to B , falsely accuses him of having committed
an offence, knowing that there is no just or lawful ground for such charge. On the
trial, A gives false evidence against B, intending thereby to cause B to be convicted
of a capital offence. A may be separately charged with, and convicted of, offences
under sections 211 and 194 of the Indian Penal Code.

(g) A , with six others, commits the offences of rioting, grievous hurt and assaulting
a public servant endeavouring in*the discharge of his duty as such to suppress the
riot. A may be separately charged with, and convicted of, offences under sections
147, 326 and 152 of the Indian Penal Code. t

(A) A threatens B, C and D at the same time with injury to their persons with
intent to cause alarm to them. A may be separately charged with, and convicted
of, each of the three offences under section 506 of the" Indian Penal Code.

The separate charges referred to in illustrations (a) to (h) respectively may be
tried at the same time.

Illustration to sub-section (2). —

(*) A wrongfully strikes B with a cane. A may be separately charged with,
and convicted of, offences under sections 352 and 323 of the Indian Penal Code.

(j) Several stolen sacks of corn are made over to A and B, who know they are
stolen property, for the purpose of concealing them. A and B thereupon voluntarily
assist each other to conceal the sacks at the bottom of a grain pit. A and B may be
separately charged with, and convicted of, offences under sections 411 and 414 of
the Indian Penal Code. ,

SEC. 71]

OF PUNISHMENTS

76

(A) A exposes her child with the knowledge that she is thereby likely to cause
its death. The child dies in consequence of such exposure, A may be separately
charged with, and convicted of, offences under sections 317 and 304 of the Indian
Penal Code.

(l) A dishonestly uses a forged document as genuine evidence, in order to convict
B , a public servant, of an offence under section 167 of the Indian Penal Code. A
may be separately charged with, and convicted of, offences under sections 471 (read
with s. 460) and 186 of the same Code,

Illustration to sub-section (3). —

(m) A commits robbery on B, and in doing so voluntarily causes hurt to him.
A may be separately charged with, and convicted of, offences under sections 323, 392
and 394 of the Indian Penal Code.

The Madras High Court in Sriramulu Naidus case (y) differing from Umrao
Lai s case (z) held that separate sentences under Ss. 465 and 471 0 1. P.C., could be
passed.

On a comparison of this section (71 ) with section 235 of the Code of Criminal Proce-
dure we find that section 235 deals with the trial of a person for more than one
offence or for offences falling within two definitions and further enjoins that a
person can be tried at the same trial where several acts of which one or more than
one would by itself or themselves constitute an offence, but section 71 of the
Indian Penal Code deals with punishment and has no application to conviction.
As has been pointed out by Muttusami Aiyer, J. : “ The Legislature by section
235 of the Code of Criminal Procedure provides rules of criminal pleading only
and leaves the rules for assessing punishment to be found in sections 71 and 72 of
the Indian Penal Code and section 35 of the Code of Criminal Procedure M (a).

Mr. Mayne has summarised with respect to s. 71 of the Penal Code and s. 235
of the Criminal Procedure Code as follows •

First . — Where the repetition of several offences constitutes one offence of
exactly the same character, all the instances taken together can only be treated as
making up one offence, though the greater and lesser number of the instances may
add to or diminish the heinousness of the offence. For example, a number of
blows following upon each other only constitute one beating under section 71 , ill. (A).

Cases. — Where the accused broke into a house at night and removed property
belonging to two different persons from the same room, it was held by the Calcutta
High Court that he could not be sentenced separately for two offences of theft as
he would be guilty of one offence only (b).

A number of lies in a continuous deposition only constitute one piece of false
evidence, though the same lie in two depositions would be indictable and punish?
able separately as two distinct offences (c).

Where a guard in charge of a goods-train stole articles belonging to two differ-
ent persons from separate bags in a truck, it was held that he could not be sentenced
separately for two distinct offences of theft (d).

Where a gang of dacoits in pursuance of the common object of robbery attacked
at the same time two houses of different owners in the same village, held, they
could not be punished separately for two separate charges of dacoity in each hour
for one dacoity (e).

(y) (1928) 66 M. L. J. 654: (1929) M. W. N. 279.

(z) (1896) 23 A. 847.

(a) Nirichon, (1888) 12 M. 36 (39).

(b) Sheikh Mineeah, (1869) 11. W. R. (Cr.) 38.

(c) Thomas Castri V. The Queen, (1881) L. R. 6 App. cases 229.
<d) Hat Dial, (1906) P. R. No. 68 of 1905.

*(e) Nga San Dun . (1889) S. J. L. B. 444.

76

THE INDIAN PENAL CODE

[CHAP. Ill

Secondly : — When a single transaction or connected series of events give rise
to several offences of the same character affecting different persons, each such
offence is separately indictable and punishable. For example, a man beats two
people in the same crowd, s. 71, ill. f b ) and s. 235 ill. (a), (/) and (g). Criminal
Procedure Code.

Cases : — House-breaking to commit mischief and assault : — An accused person
was convicted under s. 457 of house-breaking by night in order to commit an
offence (mischief and assault) and also under Ss. 426 and 352 for the offences of
mischief and assault and punished separately for each offence. These offences
formed a part of the same transaction, held, that sentences were legal (f).

Criminal intimidation to three persons at one time : — Where an accused at one
time originally intimidated three different persons and each of these brought a
separate charge against him, he may be convicted for an offence as against each
person, and be punished separately for each offence (g).

Effect of amendment of section 35 of the Code of Criminal Proce-
dure: — S. 71 has not been amended, but the effect of the amendment of s. 35 of the
Code of Criminal Procedure is that the divergent rulings of the different High Courts
based on distinct offences in old s. 35, Cr. P. Code have little importance
now. There were a number of cases decided by the different High Courts,
as to what are and what are not distinct offences. They are not now
of practical importance in view of the fact that the amending Act of 1923 has
deleted the word distinct in cf. (1), s. 35 of the Code of Criminal Procedure, but
whether the offence is distinct or not is immaterial, as the case-law under the old
s. 35, Cr. P. Code is still good law when the same set of facts fall within the purview
of this section (h).

The case-law as it stood before the amending Act of 1923 under s. 35 of the
Criminal Procedure Code is summarised hereunder : — The following have been
held to be * distinct offences (1) Rioting and causing hurt: — Rioting and causing
hurt in the course of such rioting are separate and distinct offences and each
offence is separately punishable (i). Rioting and murder : — committed in
prosecution of common object, all convicts should be sentenced to extreme
penalty (j).

. A Full Bench decision of the Bombay High Court has held that when a prison-
er is convicted of rioting and of hurt, and the conviction for hurt depends upon
the application of section 1 49 of the Code, it is not illegal to pass two sentences, one
for rioting and one for the hurt, provided the total punishment does net exceed
the maximum which the Court might pass for any one of the offences— when how-
ever, the accused is guilty of rioting and is also found to have himself caused the
hurt, he may be punished both for rioting and for hurt and it was further held that
in such a case, the total punishment cannot legally exceed the maximum which
the Court might pass for any of the offences (j 1 ). Where 4 persons were convicted
of being members of an unlawful assembly with the common object of resisting

(f) Nirichan , (1888) 12 M. 36.

(g) Goolzar Khan , (1868) 9 W. R. (Cr.) 30.

(h) See Kanchan Molla, (1926) 41 C. L. J. 663, where held case, law on the old
s. 36 is obsolete.

(i) Ramadhin, (1879) 2 A. 139. Bana Punja, (1892) 17 B. 260 (F. B.) followed in

Pint Rama Havildar , (1926) 49 B. 916 : 27 Bom. L. R. 1371 ; Anthoni Udgiyan V
Rayappudayar, (1926) 63 M. L J. 663: (1927) M. W. N. 850 : 106 I. C. 806:

Batesher, (1916) 37 A. 628.

(j) Shaft Khan, , (1928) 8 P. 181.

(ji) Bana Punja , (1892) 17 B. 260 (F. B.) followed in Pint Rama Havildat
(1926) 49 B. 918 : 27 Bom. L. R. 1371; Dharam Das Singh , (1916) 14 A. L. J. 788 :
17 Cr. L. J. 418 : 26 I. C. 978; Chidda , , (1926) 24 A. L. J. 178. «

SEC. 71]

OF PUNISHMENTS

77

the execution of a legal process namely the arrest of a judgment-debtor by a civil
court peon, and where the acts separately constituted offences under Ss. 143 and
353, 4 held ’ that separate sentences under ss. 147, and 353, were legal
provided the punishment did not exceed the limit imposed by s. 71 of the Penal
Code (k). The offences of rioting or voluntarily causing hurt and of voluntarily
causing grievous hurt , each of the latter offences committed against a different
person, are all distinct offences within the meaning of s. 35 of the Criminal Pro-
cedure Code, and a separate sentence may be passed in respect of each when it is
found that each person took an individual part in the assault (1).

(2) Rioting and grievous hurt : — A Full Bench of the Calcutta High Court
has held that separate sentences passed upon persons for the offences of rioting
and grie\ous hurt are not legal where it is found that such persons individually
did not commit any act which amounted to voluntarily causing hurt, but were
guilty of that offence under s. 149 (m). Separate sentences under Ss. 147, 325, and
149, 1. P. C. , are illegal under the first paragraph of s. 71 even when they are made
to run concurrently (n). But rioting and grievous hurt has been held to be
distinct ofTences, and separate sentences passed by the magistrate were held to
be legal (o).

(3) Joining an unlawful assembly armed with a deadly weapon and rioting ; —

The offence of rioting armed with deadly weapons and stabbing a person on whose
premises the riot takes place, are distinct offences and punishable as separate
offences under Ss. 148, 149 and 324 (p). Where prisoners were charged both for
rioting, being armed with deadly weapons, and with causing hurt by shooting, and
their conviction of the latter offence rests solely on the fact of their belonging to a
party by one of whom (not one of the prisoners) fire-arms were used, it is wrong
to pass a cumulative sentence and to punish the prisoner both for the rioting and
for causing hurt. The punishment should be for either one or other of those
offences (q). *

The offences of rioting armed with a deadly weapon and voluntarily causing
hurt with a dangeious weapon are distinct offences and the Calcutta High Court
held separate sentences to be legal (q x ).

(4) Being members of an unlawful assembly , rioting and using criminal force . —
Where acts separately constituting offences under Ss. 1 43 and 353 when combined
constituted an offence under s. 147, it was held that separate sentences were legal (r)

(5) Robbery and voluntarily causing hurt : — The two offences of robbery and
of voluntarily causing hurt, when combined are punishable under, s. 394 alone
and not under Ss. 392 and 394 (s).

(k) Chandrakanta Bhattacharji, (1885) 12 C. 495; Ferasat, (1891) 19 C. 105;
Ram Angutha Singh , (1913) 40 C. L. J. 66 : 18 I. C. 402 followed in Kapil Mortdal V.
Rabbani Sheikh, (1925) 41 C L. J. 471 where Sarat Chandra Ghosh , (1922) 37 C. L. J.
171 : 24 Cr. L. J. 851 : 74 I. C. 1043 : A. I. R. (1923) Cal. 408 was distinguished;
Rahimatulla , 1 Pat. L. J. 373 : 18 Cr. L. J. 321 : 38 I. C. 433.

(l) Dttngar Singh , (1884) 7 A. 29 (34).

(m) Nilmony Poddar, (1889) 16 C. 442 (F B.).

(n) Keamudin Karikar, (1923) 51 C. 79 : 28 C. W. N. 347, following Nilmoney
Poddar , (1889) 16 C. 442; Bajo Singh, (1928) 8 P. 274.

(o) Mohur Mir , (1889) 16 C. 725 see also Persad, (1885) 7 A. 414 (F. B.) ; Bishe -
shar , (1887) 9 A. 646 and Ramsarup, (1885) 7 A. 757 (F. B.).

(p) Callachand, (1867) 7 W. R. 60 (Cr.).

(q) Durnovai , (1868) 9 W.R. (Cr.) 33 (35).

(qi) Cokenath Sarkar, (1885) 11 C. 349.

(r) Chandra Kanta Bhattacharji, (1865) 12 C. 495.

(s) Mootkee Kora, (1865) 2 W. R. (Cr.) 1 .

78

THE INDIAN PENAL CODE

[CHAP. Ill

(6) Theft and receiving stolen property : — Where a person had obtained pro-
perty by criminal breach of trust he cannot be convicted at the same time of re-
ceiving stolen property and of criminal breach of trust (t).

(7) Kidnapping and selling the kidnapped girl .—The offence of kidnapping
and the offence of selling for the purpose of prostitution are distinct and separate
offences and separate sentences were held to be legal (u).

The following have been held not to be distinct offences : —

(1) Rioting and using criminal force : — A double sentence under Ss. 147
and 353 is illegal where the force which was used, and which formed one of the
component elements of the offence of rioting, was the criminal force used to the
public servants (v).

Separate sentences should not be passed for rioting and assaulting a public
servant in execution of his duty when practically the offence of assaulting a public
servant in execution of his duty was the common object of the unlawful assembly,
the members of which committed such rioting (w).

(2) Rioting and causing grievous hurt : — It is illegal to pass separate sentences
for the offences of rioting and grievous hurt upon persons who are not proved to
have individually committed any acts to cause such grievous hurt but are guilty of
that offence under section 149 of the Penal Code (x). A member of an unlawful
assembly, some members of which have caused grievous hurt, cannot lawfully
be punished for the offence of rioting as well as for the offence of causing
grievous hurt (y).

(3) Rioting and theft : — Where persons are charged with rioting and theft
and the common object of the unlawful assembly by which the rioting was caused
is theft and they are convicted for rioting and theft, without any finding by the
Court that any one of the accused persons individually committed theft, held that
under this section, where r the offence of rioting is but an element of theft, it is im-
proper to pass separate sentences (z).

(4) Rioting and being members of an unlawful assembly : — There cannot be
conviction both for rioting and of being memebrs of an unlawful assembly . The greater
charge includes the less, and to punish under both sections of the Penal Code
would be cumulative and illegal (a).

(5) Being members of an unlawful assembly and wrongful confinement : —
Separate sentences for wrongful confinement and rioting, having regard to the
provisions of section 71, are illegal, when the common object of the unlawful
assembly is the wrongful confinement of the complainant and is the essential
ingredient in the constitution of the offence under section 147 (b) Where several
persons were put on their trial on a charge of rioting and some of them were
charged with simple hurt, the Court held that there is no legal objection to
charging such persons under that section and convicting and separately sentencing
them (c).

(t) Shun/tar . 2 N. W. P. H. C. R. 312.

(u) Doorga Das , (1867) 7 W. R. (Cr.) 68 ; 4 M. H. C. (App) xxvii.

(v) Ramdhial, (1898) 3 C. W N. 174; Ferasat , (1891) 19 C. 105.

(w) Hridoy Mondal, (1899) 4 C. W. N. 245. Contra. Chandrakanta Bhattachatji,
(1885) 12 C. 495.

(x) Sahadev A hit, (1903) 8 C. W. N. 344 followed in Ameruddin Pramanik ,
(1924) 40 C. L. J. 306.

(y) Ram Pertab, (1883) 6 A. 121.

(z) Mithoo Singh , (1899) 3 C. W. N. 761 ; Prayag Gope, (1924) 3 P. 1015.

(a) Meelan Khalifa, (1864) I. W. R. (Cr.) 7.

(b) Alim Shaikh, (1904) 8 C. W. N. 483 following Ramdhial , (1898) 3 C. W. N.

174.

(c) Katwari Rai t (1917) 39 A. 623.

SEC. 71 ]

OF PUNISHMENTS

79

(6) Culpable homicide not amounting to murder and being member of an un-
lawful assembly : — Where a prisoner was convicted and sentenced separately {or
culpable homicide not amounting to murder and for being a member of an unlawful
assembly, the two offences, however, being held to be one, the conviction and
sentence for the second offence was quashed (d).

(7) Dacoity or retaining stolen property : — When stolen property is found
in the possession of dacoits, the offence of knowingly having in possession is to be
considered as included in the original act of dacoity unless there are circumstances
clearly separating the one crime from the other, for example, length of time or
distance and as such separate sentences were held to be illegal (e).

A person convicted under Ss. 411 and 414, can be sentenced to consecutive
periods of imprisonment (0*

(8) Theft or dacoity : — Where the accused stole property at night belonging
to two different persons from the same room of a house, it was held that he could
not be sentenced separately as for two offences of theft (g).

(9) Robbery and theft and dishonestly receiving : — A person convicted of
robbery or theft, cannot be also convicted of dishonestly receiving in respect of the
same property, the two offences being identical, the one being a necessary sequence
of the other (h). Where the accused was convicted of dacoity and of receiving
property stolen in a dacoity and there was no evidence to show that more than one
offence was committed, the Calcutta High Court set aside separate convictions and
sentences (i).

(10) House-breaking by night and theft : — The Bombay High Court by a Full
Bench has held that where a person commits house-breaking in order to commit
theft, and theft, he may be charged with, and convicted of each of these offences.
In awarding punishment under the provisions of this section the Court should
pass one sentence for either of the offences in question and not a separate one for
each offence, but if two sentences are passed and the aggregate of these do not
exceed the punishment provided by law for any one of the offences it would be an
irregularity and not an illegality (j). Separate sentences can be passed for offences
under Ss. 457 and 380 (k). The Patna High Court in Makru Doshad's case (1)
held a contrary view following the earlier decisions of the Calcutta High Court (m)
without considering the effect of the amendment of s. 35, Cr. P. Code.

Separate convictions and sentences under Ss. 429 and 379 and under Ss. 456
and 380 were set aside ; and the convictions under section 429 (mischief by killing
animal of the value of fifty rupees) in the former case, and under section 457 in the
latter, were allowed to stand (n). Theft is the sequel of, and cannot be separated
from, house-breaking. A cumulative sentence of 3 years’ imprisonment was held
to be illegal in such a case (o). In cases of separate convictions and sentences for

(d) Rubbeoollah, (1864) 7 W. R. 38 (Cr.).

(e) Abdool Hossein, (1864) 1. W. R. 48 (Cr.) see Sahabut Shaikh, (1870) 13 W. R.
42.

(f) Hamma Timma Bhandiwadder, (1928) 30 Bom. L. R. 683.

(g) Shaikh Moneeah , (1869) II W. R 38 (Cr.).

(h) Shaikh Muddun Ally, (1864) 1. W. R. 27 (Cr.).

(i) Seeb Chandra Haree , (1869) 11. W. R. 12 (Cr ).

(j) Main Arjun , (1899) 23 B. 706 (F. B.) : 1 Bom. L. R. 142.

(k) Kanchan Molla, (1926) 41 C. L. I. 663.

(l) (1926) 6 P. 404.

(m) Tonakoch, (1806) 2 W. R. (Cr.) 64 ; Sahrae, (1867) 8. W. R (Cr.) 31. Jogun
V Nobo t (1800) 0. W. R. (Cr.) 49, Musaher Daudh, (1866) 6 W. R. (Cr.) 92; Chyi-
tam Brown , (1806) 6 W. R. (Cr.) 49.

(n) Sahrae (1807) 8 W. R. 31 ; Nobo Pulee , (1866) 6 W. R. (Cr.) 49.

(o) Musaher Daudh, , (1866) 0 W. R. 92, Jonad Koch, (1866) 2 W. R, 63, Musst.
Minen Nuggerbhatin, (1866) 3 W. R. 19.

THE INDIAN PENAL CODE

80

[CHAP. Ill

House-breaking by night and theft under s. 379 they were quashed and those under
$• 457 were upheld (p).

S. 71 of the Pena] Code applies to the case of a person charged with house-
breaking under s. 457 and theft committed on the same occasion under s. 380.
A magistrate has power to inflict only two years* imprisonment for a single offence.(q)
In a later case the Bombay High Court held a contrary view — it is competent
to a magistrate to pass a separate sentence in respect of each of the two charges,
of house-breaking in order to commit theft, and of theft in a human dwelling, of
which a prisoner is found guilty, provided the aggregate punishment awarded on
the two charges does not exceed the punishment which the case warrants for the
greater of the two offences of which the accused has been convicted, and provided
further such aggregate punishment does not exceed the jurisdiction of the Court
passing the sentences (r).

(11) Ss. 411 and 415 — separate punishment cannot be awarded in cases
where a person is convicted under s. 41 1 for dishonestly receiving stolen property
and for assisting in concealment of stolen property (s).

(12) Theft and mischief : — A double sentence for theft and mischief is illegal
and improper (t).

(13) Criminal trespass and mischief : — Where a person committed a trespass
with the intention of committing mischief and thereby committed mischief, held
that he could not be separately punished for both the offences (u).

(T4) House trespass and grievous hurt : — Where a prisoner entered a house
for the purpose of committing an assault, and in carrying out that intention, caused
grievous hurt, in convicting and punishing him for the substantive offence (griv-
ous hurt), held that it was not necessary to pass a separate sentence for the offence
of house-trespass (v).

(15) Abducting a child in order to take property from its person and theft : —
An accused cannot be separately punished for abducting a child with intent dis-
honestly to take moveable property (s. 369) and also for the theft of a part of the
immoveable property (s. 379) which he dishonestly intended to take by means of
the abduction. Separate sentences cannot be awarded in one case for abducting
a child in order to take property from its person (s. 369) and theft after preparation
to cause death (s. 382), where the evidence shows that the act was one and the same.
The sentence under the latter section was cancelled, there being no evidence of any
preparatoin having been made to cause death, etc., within the meaning of that
section (w).

(16) Counterfeiting Ktng's coin and being in possession of implements and
materials for using counterfeiting coin : — Separate sentences cannot be passed on an
accused person for offences under Ss. 232 and 235 for* counterfeiting King*s coin
and having in his possession implements and materials used for counterfeiting
such coin (x).

Thirdly .—Where the same facts will constitute different offences, the indict-
ment may, and ought to charge each such offence so as to meet every possible view

(p) Nobo Pullee, (18(55) f> W. R.49. see also Nirichan, (188«) 12, M. 36; Ram-
adhin , (1879) 2 A. 644. Contra Kantha Mollan , 41 C. L. T. 563.

(q) Arjun, (1863) 1 B. H. C. R. 87.

(r) Anvar/than Valad Kulkhan, (1872) 9 B. H. C. 172.

(s) 4 M. H. C. App. 13.

(t) Bichuk AheerV. Auhuch Bhoonea, (1866) 6 W. R. 5. (Cr.),

(u) Budh Singh, (1879) 2 A. 101.

(v) Bassoo Rannak , (1865) 2 W. R. 29 (Cr.).

(w) Kasheenath Chango, (1867) 8 W. R. 84 ; Noujan, (1874) 7 M. H. C. App. *
13.

(x) Bishan Das , 61* L. J. 272.

OF PUNISHMENTS

SEC. 71]

81

of the case. But only one offence has been committed, and the punishment must
not exceed that applicable to the graver offence, (s. 71 , cl. 2).

Cases : — The Bombay High Court has held that a prisoner could not be at the
same time punished for committing an offence by fire with intent to destroy a
warehouse under s. 436 and for the offence of mischief by fire fs. 435). It is a
general rule that when, in the same penal statute, there are two clauses applicable
to the same act of the accused the punishments are not to be regarded as cumula-
tive unless it be so expressly provided fy). An accused cannot be punished for
rioting and being member of an unlawful assembly (z), for rioting and wrongful
confinement when the common object of the unlawful assembly is the wrongful
confinement of the complainant (a), for rioting and assaulting public servant in the
execution of his duty when the common object was to assault the public servant (b),
for rioting and causing hurt (c), or for rioting and grievous hurt where they are
found guilty of the offence of grievous hurt read with s. 149 (d), for causing
grievous hurt by dangerous weapon fs. 326) and for committing robbery or dacoity
with preparation to cause grievous hurt (e), for adultery (s. 497) and for enticing
with a view to illicit intercourse (f), for culpable homicide not amounting to murder
and being member of an unlawful assembly, the latter being a component part of the
former (g), for dacoity and retaining stolen property the latter offence being found to
be included within the former (h), for abetment of abduction of a woman [Ss. 109 and
498(i)], for dishonestly receiving stolen property (s. 411) and for assisting in
concealment of such property (s. 414) (j), for kidnapping with intent secretly and
wrongfully to confine a person (s. 365) and also for putting a person in fear of death
or of grievous hurt in order to commit extortion (k), for counterfeiting King's coin
and having in his possession implements and materials for using the svne for
counterfeiting King's coin (1), for wrongful confinement and assault (m) the facts
proved being that the accused had seized, dragged and pushed the complainant
to a certain place in order to punish him, held that all the acts of the accused fell
within the second paragraph of s. 71.

Fourthly : — Sometimes an act, which is in itself an offence, becomes either a
different offence or an aggravated form of the same offence when combined with other
facts either in themselves innocent or criminal. Here also it may be proper not
only to charge the offender with the compound offence, but the minor offences of
which it is made up. But if the compound offence is made out, no punishment
can be awarded beyond that which can be given in respect of it. For instance,
upon the same facts, a man may be charged for using criminal force under
s. 352 and under s. 152 for the same force against a public servant. (FerasatV.
(Reg.)( n).

Cases .* — A Full Bench of the Bombay High Court held that in a case of convic-
tion of house-breaking by night, in order to commit theft under s. 457 and theft under

(V) Reg. V. Dodd Basaya, (1874) 11 B. H. C. 13, see also Bamti, (1879) 2 A 349.

(z) Meet an Khalifa, (1804) l \V. R. Cr. 7.

(a) Alim Shaikh, (1904) 8 C. W. N. 483.

(b) Hridoy Mondal , (1899) 4 C. W. N. 245.

(c) Hardut Singh, (1911) P. L. R. No. lOfof 1911,

(d) Sahadev Ahir, (1903), 8 C. W. N. 344. *

(e) Kotliagedu, (1915) M. W. N. 544.

(f) Pochun Chung, (1865) 2 W. R. 55.

(g) Rubbeoolah , (1867) 7 W. R. 13.

(h) Abdool Hossein, (1864) 1 W. R. 48.

(i) Ishur Chandra Jogee, (1864) W. R. (gap.) No. 21.

(j) (1868) 4 M. H. C. (App.) 13.

(k) Po Lan t (1912) 6 L. B. R. 160 : 14 Cr. L. J. 167.

(l) Bishun Das , 5 L. L. J. 272.

(m) Fakir a Khan, (1915) 19 C. W. N. 181,

fa) Ferasat , (1891) 19 C. 105.

II

82

THE INDIAN PENAL CODE

[ CHAP. Ill

a. 380, there may either be one sentence for both offences, or separate sentences
for each offence, provided that the total punishment awarded does not exceed
that which may be given for the greater offence (n x ). The Bombay High Court
in a later case (o) distinguished the Full Bench decision (n r ) in a case where an
accused was convicted under Ss. 457 and 330 and held that as the accused committed
two distinct offences which did not 4 constitute * when combined * a different offence *
punishable under any section of the Indian Penal Code, s. 71 did not apply, and
as the aggregate punishment did not exceed twice the amount ot punishment which
the trying magistrate was competent to inflict, the sentences were legal under s. 35
of the Criminal Procedure Code, as also s. 235 of the Code of Criminal Procedure
(illustration) had been amended after the decision of the aforesaid Full Bench
case fo). But in a later Full Bench decision the Bombay High Court held, where
a person commits house-breaking in order to commit theft, and theft , he may be
charged with, and convicted of, each of these offences. In awarding punishment
under the provisions of s. 71 of the Indian Penal Code the Court should pass one
sentence for either of the offences in question and not a separate one for each
offence. But if in such a case two sentences are passed, and the aggregate of
those does not exceed the punishment provided by law for any one of the offences
or the jurisdiction of the Court, that would be an irregularity and not an illegality
calling for the interference of a Court of appeal or revision (p).

The Calcutta High Court has held that separate sentences can be passed
under s. 35 ‘Criminal Procedure’ as amended read with s. 71, 1. P. C. t for an offence
under Ss. 457 and 380 (q).

The Allahabad High Court held in a case where a person committed a tres-
pass with the intention of committing mischief thereby committing criminal trespass
that such person could not receive a punishment more severe than might have
been awarded for either of such offences (r). Where a person who broke into a
house by night and committed theft therein and was convicted and sentenced
under Ss. 457 and 380, held separate sentence under s. 380 was bad (s).
In a trial for offences under Ss. 170 and 383, committed in the
same transaction where it appeared that but for personating a public servant
the accused would not have been in a position to commit the act of extortion
complained of, held that the first and second paragraphs of s. 71 did not apply to the
cause ; that the third paragraph also did not apply, because the words ' constitute
an offence refer to the definitions of offences contained in the Code, irrespective
of the evidence whereby the acts complained of are proved, and personating a
public servant as defined in s. 1 70 was not a constituent element of extortion as
defined in s. 383, and in that case the former offence was completed before the
latter had begun ; and that separate sentences for each offence were therefore not
illegal (t).

Where a prisonei was tried, convicted and punished under s. 369 of abducting
a child with intent dishonestly to take moveable property, could not also be punished
for the theft of a part of the moveable property which he intended dishonestly to
take by means of the abduction ; end the second punishment for a theft was
according to the Code of Criminal Procedure of 1872, held illegal (u).

After having discussed the oli case-law it is pertinent here to discuss the

(ni) Tukya , (1801) I B. 214 (F. B.). ,

(o) Sakharam Bhau, (1883) 10 B. 493.

i p) Malu , (1899) 23 B, 708 (F. B.).

q) Kanchan Molla , 41 C. L. J. 603.

(r) Budh Singh, (1879) 2 A. 101.

(s) Ajudhya, (1880) 2 A. 644.

i t) Wajirjan, (1887) 10 A. 68.

in) Noujan,1 M. H. C. R. 376.

OF PUNISHMENTS

SEC. 71]

83

case-law with reference to the effect of the amendment of s. 33 of the Criminal
Procedure Code.

Calcutta The Calcutta High Court in Kanchan Mulla's case (v) has rightly
held that we have now only to consider whether the offences are of the nature des-
cribed ins. 71, I.P.C., but the view taken by Newbould, J., in Kanchan Mulla's
case (v) or rather his obiter, viz., that the case-law on the subject has been over-
ruled by the amendment of s. 35, Cr. P. Code does not seem to be correct. True,
most of the decisions on the Code of 1 898 are based upon the 4 Illustrations ’ and the
4 Explanation ' to s. 33 which haring been deleted, those decisions cannot be
treated as good law, but the decisions in the following cases (w) where the accused
have been held guilty by operation of s. 149, 1. P. C. cannot be treated as having
been overruled, os has been held in the following cases (x).

Fatiar Baps case (y) which follows Kanchan Mulla's case (v) without any
examination cannot be treated as good law.

Bombay The Bombay High Court has held that the amendment of 8. 35,
Cr. P. Code restores the previous view of the law as indicated in Bana Panja , 17 B.
260 (F.B.) that separate sentences under Ss. 148 and 326, I. P. C. are legal, subject
to the provisions of s. 71 , I. P. C., which prevent the offender being punished with
a more severe punishment than the Court could have awarded for any of the
offences coming within the scope of this section (z). This case however distinguish-
ed Keamuddi's case (a) as having been decided before the amendment. The
Bombay High Court in Hamma Timon Bhandiwaddar (b) has held that a person
convicted under 9. 411, I. P. C. and also under s. 414, 1. P. C. can be sentenced to
consecutive periods of imprisonment.

Allahabad : — The Allahabad High Court has held that separate sentences
under Ss. 147, 323 and 149, I. P. C. are not illegal (c).

Madras : — The Madras High Court has held that separate sentences for rioting
and causing hurt (d) and those under Ss. 471 and 167, I. P. C. (e) are legal.

Patna The Patna High Court in Prayag Gopi's case (0 following old deci-
sions of the Calcutta High Court ($) held that separate sentences for rioting and theft
were illegal when the common object set out in the charge of rioting involved ‘ theft.’
In Makru Dusadh's case (h) it has been held that separate sentences under Ss. 380
and 457, I. P. C. are illegal, although the effect of amendment of s. 35, Cr. P. Code
was not considered in that case. In Bajo Singh's case (i) the amendment has been
considered and it was held that separate sentences under Ss. 147, 326 and 149,
I. P. C. were illegal. There the learned Judges did not follow Piru Ram Havil~
dars case (j) but followed Nilmony Poddar's case (k) and Palta Singh's case (1).

(v) (1925) 41 C. L. J. 563.

(w) Ram Pratab, 6 A. 121 ; Nilmony Poddar, (18S0) 15 C. 442 (F. B.); Keamuddi
Karikar, 51 C. 79 : 28 C. W. N. 347 ; Ameeruddi, (1924) 40 C. L. J. 306 (307).

(x) Basiruddin, (1927) 31 C. W. N. 532 ; Bajo Singh , (1928) 8 P. 274, followed
in Kitabdi , (1930) 35 C. W. N. 184 ; Harendra Barman , (1930) 35 C. W. N. 345.

(y) 31 C. W. N. 691.

(z) Piru Rama Havildar, (1925) 49 B. 916 : 27 Bom. L. R. 1371.

(a) 51 C. 79 : 28 C. W. N. 347.

(b) (1928) 30 Bom. L. R. 383.

(c) Chidda , (1925) 24 A. L. J. 178.

(d) Anthoni Udayan V. Rauapuddayar , 53 M. L. J. 653 : (192 7) M. W. N. 850
A. I. R. (1928) M. 18 (1).

(e) Sriramalu Naidu, (1928) 56 M. L. J. 554: (1929) M. W. N. 279.

(f) 3 P. 1015.

(g) Ramdihal , 3 C. W. N. 174 ; Mihtoo Singh , 3 C. W, N. 761.

(hi 6 P.464. *

(i) (1928) 8 P, 274. *

84

THE INDIAN PENAL CODE

[CHAP. Ill

72. In all cases in which judgment is given! that a person
is guilty of one of several offences specified
°L pe ;; in the judgment, but that it is doubtful of
several offences, the which or these offences he is guilty, the
judgment stating that offender shall be punished for the offence

for which the lowest punishment is provided
if the same punishment is not provided for all.

Applicability of the section— see note to s. 60.

The Authors of the Code observe : “ This provision is intended to prevent
an offender whose guilt is fully established from eluding punishment, on the ground
that the evidence does not enable the tribunals to pronounce with certainty under
what penal provision his case falls. Where the doubt is merely between an aggra-
vated and mitigated form of the same offence, the difficulty will not be great. In
such cases the offender ought always to be convicted of the minor offence. But
the doubt may be between two offences, neither of which is a mitigated form of the
other. The doubt, for example, may lie between murder and the aiding of murder.
It may be certain, for example, that either A or B murdered Z and that which-
ever was the murdered, he was aided by the other in the commission of the murder ;
but which committed the murder, and which aided the commission it may be
impossible to ascertain. To suffer both to go unpunished, though it is certain that
both are guilty of capital crimes, merely because it is doubtful under what clause
each of them is punishable, would be most unreasonable. It appears to us that
a conviction in the alternative has this recommendation that it is altogether free
from fiction, that it is exactly consonant to the truth of the facts. If the Court
find both A and B guilty of murder, or of aiding murder, the Court affirms that
which is not literally true and on all occasions but especially in judicial proceedings,
there is a strong presumption in favour of literal truth. If the Court finds that
A has either murdered M or aided B to murder and that B has either murdered
M or aided A to murder Af, the Court finds that which is the literal truth ; nor will
there, under the rule which we have laid down, be the smallest difficulty in pres-
cribing the punishment.

'■■/V '

“It is chiefly in cases where property has been fraudulently appropriated that
the necessity for such a provision as that which we are considering will be felt. It
will often be certain that there has been a fraudulent appropriation of property ;
and the only doubt will be whether this fraudulent appropriation was a theft or a
criminal breach of trust. To allow the offender to escape unpunished oh account
of such a doubt would be absurd. To subject him to the punishment of theft
which is the higher of the two crimes, between which the doubt lies,
would be grossly unjust. The punishment to which he ought to be liable is evi-
dently that of criminal breach of trust ; but that a Court should convict an offender
of a ciminal breach of trust, when the opinion of the Court perhaps is, that it is
an even chance, or more than an even chance, that no trust was ever reposed in him,
seems to us an objectionable mode of proceeding. We will not, in this stage of our
labours, venture to lay it down as an unbending rule that the tribunal ought never
to employ phrases which though literally false are conventionally true. Yet we
are fully satisfied that the presumption is always strongly in favour of that form oF
expression which accurately sets forth the real state of the facts. In the case which
we have supposed, the real state of the fads* is that the Offender has certainly either
committed theft or criminal breach *of trust, ai\d that the Court does not know
which. This ought, therefore^ in our opinion to fye the form of the judgment (i)’\

(i) Note A.

SEC. 73]

OF PUNISHMENTS

35

Conviction lor doubtful offences : — This section and sections 236 and
367 (3) of the Code of Criminal Procedure deal with a case where the facts are
certain but it is doubtful of which of the offences he is to be held guilty. This
section provides that in such cases the offender shall be punished for the offence
for which the lowest punishment is provided. But according to s. 367 (3) the Court
shall in such cases pass judgment in the alternative, only the sentence being regu-
lated in view of the minor offence (j), of course, judgment in the alternative cannot
be passed, where it is doubtful whether the accused is guilty of any of the offences
charged (k). When an accused person is convicted in the alternative, one of the
offences of which he might be guilty being murder punishable under s. 302 of the
Penal ('ode, s. 72, so far overrides s. 302 as to provide imprisonment in place of
transportation for life (1).

73. Whenever any person is convicted of an offence for

Solitary confinement. which UXlde \ * his Co(3e the C °. Urt P° Wer

to sentence him to rigorous imprisonment,
the Court may, by its sentence, order that the offender shall be
kept in solitary confinement for any portion or portions of the
imprisonment to which he is sentenced, not exceeding three
months in the whole, according to the following scale, that is
to say —

a time not exceeding one month if the term of imprisonment
shall not exceed six months :

a time not exceeding two months if the term of imprisonment
shall exceed six months and [shall not exceed one year] :

a time not exceeding three months if the term of imprison-
ment shall exceed one year.

Legislative changes ' The words in brackets “ shall not exceed one year "
were substituted for “ he less than a ” by section 5 of the Indian Penal Code
Amendment Act, 1882 (VIII of 1882).

Analogous Law : — In England the sentence of solitary confinement which
was at one time legal though very rarely exercised has now been repealed by the
Statute Law Revision Act of 1893 (56 and 57 Viet., c. 54). Under the Code it is
not a substantive sentence by itself but can only be awarded where the Court inflicts
rigorous imprisonment. It is illegal to award solitary imprisonment where the
offender has been sentenced to imprisonment in default of fine (m).

Solitary confinement for any portion .—These words ‘ any portion ’ imply that
the solitary confinement if inflicted for the whole term of imprisonment is illegal (n).

Sentence of solitary confinement cannot be passed for offences under
special or local law :—-There is no authority under s. 73 for imposing a sentence
of solitary confinement *on a person convicted under s. 22 of the Criminal Tribes
Act, (III of 1911). Whenever a person is convicted of an offence under this
section for which under this Code the Court jias power to sentence him to rigorous
. imprisonment, the Court may, by its sentence, order that the offender shall be kept

(j) Tarinee, (1867) 7 W. R. (Cr.) 3.

(k) Partapa, P. R. Nq. lltof 1913*U4 Cr. L; J. 664 : 21 I. C. 904, see

also Khan Mahmud, (1867) P. R: No.*ll *>1*1887, and Jamurha, (1876) 7 N. W, P. H.
C. R. 137.

(l) Sahee Singh , (1906) A. W. N. 93.

(m) Jita, (1873) *P. R. o : 26. of 1873, J^mdad, (1887) P. R. No. 63 of 188 7.

(n) Nay an Sukh Methcr A (1869) 3 B.JL. R. 49.

THE INDIAN PENAL CODE

86

[CHAP. Ill

in solitary confinement for any portion of the imprisonment to which he has been
sentenced (o).

‘not excee ding three months*: — Separate sentences of solitary confinement
are not illegal, but as a matter of practice a sentence of more than 3 months* solitary
confinement should not be passed on a person convicted at one trial for more than
one offence (p).

Solitary confinement in summary trial i — It is not illegal to impose a
sentence of solitary confinement as a part of the sentence in a case tried summari-

l y (q)-

In default of furnishing security for good behaviour The imprison-
ment which a person may be ordered to undergo in default of furnishing security
for good behaviour cannot be made to include solitary confinement (r).

Cumulative sentences whether legal : — The Burma High Court has held
that cumulative sentences of solitary confinement are contrary to the intention of
s. 73 (s).

74 . In executing a sentence of solitary confinement.
Limit of solitary con* such confinement shall in no case exceed
iinement. fourteen days at a time, with intervals

between the periods of solitary confinement of not less duration
than such periods, and when the imprisonment awarded shall
exceed three months, the solitary confinement shall not exceed
seven days in any one month of the whole imprisonment award-
ed, with intervals between the periods of solitary confinement
of not less duration than such periods.

This section prescribes the limit cf solitary confinement on medical grounds
as the effect of solitary confinement for a continuous long period is sure to produce
mental derangement and affect the health cf the prisoner.

Limit of solitary confinement Solitary imprisonment must be imposed
at intervals. A sentence inflicting solitary confinement for the whole term of
imprisonment is illegal, though not more than fourteen days is awarded (t(.

In the case of the substantive sentence exceeding three months, single period
of solitary confinement cannot exceed seven days in any one month. Where an
accused was sentenced to a term of one year and one day out of which 3 months
were to be passed in solitary confinement, the sentence was held to be illegal and
the Madras High Court reduced the period of solitary confinement to 84 days (u).
But the Chief Court of Punjab held a different view in a case where the accused
was sentenced to rigorous imprisonment for a period of 4 months, of which one
month was ordered to be passed in solitary confinement. The sentence of solitary
imprisonment was upheld as legal 9 notwithstanding that the accused could not law-

(o) Bidha , (1923) 46 A.1H: 21 A. L. J. 914 : A. I. R. (1024) A. 319, see also

Gholam Hossain, (1866) P. R No. 120 pf 1866 ; Harnarain, (1870) P. R. No. 20 of 1870:
Munawar, (1876) P. R. No. 4 of 1876; Mukh Ram, (1879) P. R. 24 of 1879; Jamnu
(1849) P. R. No. 17 of 1879, Gurdit Singh , (1889) P. R. No. 17 of 1889. — <

(p) Danget Khan, (1922) 6 L. L. J. 224 : 23 Cr. L. J. 693 : 68 I. C. 817 : A. I. R.

(1922) Lah. 104. * ■ . . #

fa) AnnuKhan, (1883) 6 A.%3: (1883f A. W. N. 224#

(r) Kundan, (1914) 36 A. 496.

(s) Nga Sein Po, (1923) fc R. 300 : 2 Bur. L. J. $2 : " 25 Cr. L. J. 86 : 76 I. C.

21: A. I.R. (1923) Rang. 197. J

(t) Nayan Suck Metker, (1869) 3 B. L. R. 49. <■

(u) Anon, (1879) 1 Weir 35.

OF PUNISHMENTS

SEC. 75]

87

fully be sentenced to more than twenty-eight days ' solitary confinement, if the
imprisonment continued for four months (v).

75 . Whoever, having been convicted, —

(a) by a Court in British India, of an offence punishable
Enhanced punish- under Chapter XII or Chapter XVII of

rdeVchap r ter n xn nC or th . is P> d ® wlth imprisonment of either des-
Chapter xvii after cription tor a term of three years or up-
previous conviction. VVards, or

(b) by a Court or tribunal in the territories of any Native

Prince or State in India acting under the general or
special authority of the Governor-General in Coun-
cil or of any Local Government, of an offence which
would, if committed in British India, have been
punishable under those Chapters of this Code with
like imprisonment for the like term,
shall be guilty of any offence punishable under either of
those Chapters with like imprisonment for the like term, shall
be subject for every such subsequent offence to transportation
for life, or to imprisonment of either description for a term which
may extend to ten years.

Legislative changes : — S. 75 was substituted by the Indian Penal Code
Amendment Act, 1910 (III of 1910). The original section as amended by the
Indian Criminal Law Amendment Act, 1886 (X of 1886), s. 22 ran as follows : —

Whoever having been convicted of an offence punishable under Chapter XII
or Chapter XVII of this Code with imprisonment of cither description for a term of
three years or upwards, shall be guilty of any offence punishable under either
of those chapters with imprisonment of either description for three years or upwards,
shall be subject for eveiy subsequent offence to transportation for life or to imprison-
ment of either description for a tcim which may extend to ten yeais.

In its application to hill-tribes to which the Kachin Hill-Tribes Regulation,
1895 (I of 1895) is applied, Ss. 1 (3) and 3 of that Regulation, Bur Code is to be
read as if the following additional section were inserted : —

"76A. Notwithstanding anything in this Code oi in any'other enactment for the
time being in force, a person convicted of any offence punishable with fine in lieu
of or in addition to any other punishment to which he may be liable."

In the Chin Hills the Code is to be read as if a section similar to the preceding,
save a few verbal differences, and similarly numbered, were inserted — see the
Chin Hill Regulation, 1896 (V of 1896), Bur. Code.

Object ^-As was observed by Prinsep, J., the object of the section is to provide
for an additional sentence, not for a less severe sentence on a second conviction.
Recourse should not be had to it if the punishment for the offence committed is
itself sufficient (w).

It is not the intention of the legislature that previous conviction should cnor*
mously enhance the heinousness of the offence . Where, for instance, soon after his
release on expiry of a sentence of seven years* imprisonment on conviction of
* receiving stolen property acquired By dacoity,’ a person is convicted of house-

.(v) Futta, (1878) P. R. No. 7 of 1878.
(w) Shm Satan Tato , (1883) 9 C. 877.

88

THE INDIAN PENAL CODE

[ CHAP. Ill

breaking and theft he is sufficiently punished by a sentence of seven years’ trans-
portation ; a sentence of transportation for life passed by the Sessions Judge was
held to be too severe (x).

The highly penal provisions of the section are not retrospective and have no
application to an offence committed before the Penal Code came into opera-
tion (y).

S. 562, Cr. P. Code, is wider than s. 75 (z).

Conditions for enhanced punishment To bring an offence within the

r*Tl i d'i f Jl r 'M • ) a j « i ■ i iT.

■ m I ft) I n m

^WTnTriti irfn if?

(1) The accused must have been previously convicted (a) by a Court in
British India, or ( b ) by a Court in the territory of a Native State acting under the
authority of the Government, of an offence which is punishable with imprisonment
for at least three years :

(2) the offence of which he had been convicted and of which he is sub-
sequently charged, must be one under either Chapter XII or Chapter XVIII of this
.Code;

(3) the subsequent offence must also be punishable with imprisonment for
at least three years (a).

Reasons for reducing or enhancing punishment : — The Madras
High Court, in the case of Karuppatevan (b) following the view taken by English
Courts, explained the decision in re. Mayandi Thevan (c) and laid down that
besides something apart from the nature of the offence such as youth, age, illness
or sex, one special reason for enhancing or reducing the sentence would be the
internal of time which had elapsed between the accused person coming out of
prison after serving his last sentence and the commission of the offence.

Scope s — This section declares that if any person having been convicted
of any offence punishable under certain chapters of the Indian Penal Code,
shall be guilty of any offence punishable under those parts of the Code, he
shall for every such subsequent offence be liable to the penalties therein declared.

The section then prescribes enhanced punishments for particular offences
committed after conviction of any one of such offences and not merely on a second
conviction (d).

It is not proper for a Court to impose a heavy sentence for a trivial offence even
in case of habitual offender (e).

The section does not apply to sentences passed by the magistrate beyond his
competency in classes of offences committed at one and the same time 1 (0-

The Calcutta High Court about the scope and meaning of this section has
held : " The meaning of the law appears to us to be that when an offender, after
having been punished with imprisonment for a crime under Chapter XVIII, again,
after his release from prison commits a similar description of crime or a crime

(x) Shamjee Nashyo, (1878) l C. L. R. 481 ; Guhi Jena, (1908) 12 C. W. N.

xxxiii; Jowahir Singh, (1913) P. L. R. No. 4 of 1914 : P. W. R. No. 3 of 1914 (Cr.) :

15 Cr. L. J. 183 : 22 I. C. 757.

(y) Kushyabin Yesa , (1867) 4 B. II. C. R. (Cr.) 11 ; Moluk Chand Khalifa, (1865)
3 W. R. 17 ; Pubon, (18(36) 5. W. R. (Cr.) 66.

(z) Saban Sahib, (1928) 56 M. L. J. 595 (597) : (1929) M. W. N. 393.

(a) Chandaria, (1911) 11 I. C. 623 : P. L. R. No. 235 of 1911 (Cr.) : P. W. R.

No. 36 of 1911 (Cr.) : 12 Cr. L. J. 439.

(b) 35 L. W*«710 : A. I. R. (1929) M. 41 (2).

(c) 50 M. 474.

(d) Megha, (1878) l A. 637. *

(e) Maulu, (1929) 11 L. 115.

(f) Jhoomuck Chatnar, (1866) 6 W. R. 90 (Cr.). *

SEC. 75]

OF PUNISHMENTS

89

punishable under the same chapter, he is liable under section 75 to enhanced punish-
ment, on the ground that the sentence already borne has had no effect in preventing
a repetition of his crime and has been, therefore, insufficient as a warning. But
where the prisoners’ conviction has taken place a very short time before, and where
no imprisonment under it has yet been undergone, and no time has been given
for reformation, if cannot be said that a prisoner has had any opportunity of shew-
ing what the effect of the first sentence would have been upon him, and it would
not be just to punish him as though he were an incorrigible offender whom no
comparatively light punishment could wean from evil courses” (g). The Madras
High Court has held that section 75 clearly postulates the commission of the
offence which forms the subject of the subsequent charge at a period subsequent
to the date of the offence of which the accused was before convicted (h). The
Burma Court has held that this section restricts enhancement of punishment
to cases of previous convictions before commission of particular offence charged (i)
This section does not create an offence : — S. 75 does not constitute a separate offence,
but only imposes a liability to enhanced punishment (j).

Hie provisions of this section are confined to offences punishable under the
Penal Code (k). To justify enhanced punishment under this section on account
of previous conviction, both convictions must be of offences punishable under
Chapters XII and XVII of the Code and after the Code came into operation (1).

Conviction of an accused person in foreign territory : — A previous convic-
tion of an accused person in a foreign territory cannot be proved against him under
s. 75 of the Code (m).

Clause (a) : — This section requires that both the previous and subsequent
offences shall be offences of the class punishable with imprisonment for a term of
three years or upwards (n).

Clause (b) : — Conviction by a Court in a Native State which is not under
the authprity of the Local or Supreme Government could not be taken into consi-
deration in enhancing punishment under this section (o).

Attempt : — This section is restricted to offences under Chapters XII and
XVII of the Code when the term of imprisonment awardable is three years* im-
prisonment and upwards, and does not refer to an attempt to commit any of those
offences, nor can any case be brought within it merely because the punishment that
may be given for it extends to three years and upwards (p). S. 75 of the Indian
Penal Code does not apply to cases which are confined to s. 51 1 of that Code. The

(g) Pubon, (1866) 5 W. R. 66 (Cr.).

(h) (1875) 1 Weir 39.

(i) Po . So, (1917) 11 Bur. L. T. 107 : 9 L. B. R. 77 : 19 Cr. L. J. 47 : 42 I. C.
1007 ; see (a) Nga Ba Shein, (1928) 6 R. 391 (F. B.) at page 390.

(j) (1869) 1 Weir 37.

(k) (1877) 1 Weir 39.

(l) Moluck Chand Khalifa , (1865) 3 W. R. 17; Hirapal , (1865) 4 W. R. 9;
Fatter, (1822) 6 L. L. J. 110 : 24 Cr. L. J. 944 : 75 I. C. 368 : A. I. R. (1923) Lah.
286.

(m) (1889) 1 Weir 40 ; Bhanwar, (1920) 18 A. L. J. 58 : 21 Cr. L. J. 144 : 54
I. C. 624.

(n) (1874) 1 Weir 38; Chandaria, (1911) P. L. R. No. 235 of 1911: (1911)
P. W. R. No. 36 of 1911 : 12 Cr. L. J. 439 : 1 1 I. C. 623, see also Damn Haree, (1874)
21 W. R. (Cr.) 35.

(6) Bhawal, (1913) P. R. No. 17 of 1913 : P. W. R. No. 42 of 1913 (Cr.) : P. L.R.
No. 329 of 1913 : 20 I. C. 1007 ; Bhanwar , (1920) 18 A. L. J. 58 . 21 Cr. L. J. 144 :
54 I. C. 624.

(p) Damn Haree . ((1874) 21 W. R. (Cr.) 35 ; Srickaran Bauri , (1887) 14 C. 357 ;
Nana* Rahim, (1880) 5 B. 140 ; Ramdoyal, (1881) 3 A. 773 ; (1868) 1 Weir 36 ; Harnam,
(1907) P. R. No. Hof 1907.

90 THE INDIAN PENAL CODE [ CHAP. Ill

offences which come under s. 511 must be punished entirely irrespective of this
section (q).

Abetment : — The previous conviction of an accused for an offends under
Chapters XII and XVII cannot be taken into consideration at a subsequent con-
viction for abetment of an offence under those chapters for the purpose of enhanc-
ing punishment under this section (r).

Procedure : — Courts should exercise discretion in making the penalty fit for
the crime. The practice of committing petty offences to the Court of Sessions
after three or four convictions should cease (s).

For proof of previous conviction see s. 51 1 of the Code of Criminal Procedure.

The previous conviction not contemplated by this section may be proved if
it is relevant under the Evidence Act (t). Previous conviction must be proved
strictly and in accordance with law (u). A previous conviction cannot be proved
by the examination of an accused under, s. 342, Cr. P. Code (v). A contrary view
was held in Kisan Yasu (w) which cannot be regarded as good law in view of the
amendment of s. 310, Cr. P. Code, which no longer embodies s. 310 (c) of the
Code of Criminal Procedure of 1898. Such previous convictions may be proved
by the production of some judgment or extract from a judgment or some other
documentary evidence of the fact of such previous convictions as is required by
s. 91 of the Evidence Act or s. 51 1, Cr. P. Code (x).

For procedure regarding order for notifying address of previously convicted
offender see s. 565 of the Code of Criminal Procedure.

For procedure relating trial of persons previously convicted of offences against
coinage f stamp-law or property , see s. 348 of the Code of Criminal Procedure.

Records of previous conviction when to put in s— It is only after the trial
is concluded that records of previous conviction should be put in (y). The record
should invariably show that reference to the previous conviction has not been made
until the subsequent offence has been found proved against the accused (z).

In the case of trial by a Jury or with the aid of assessors when the accused is
charged with an offence and further charged that he is by reason of previous
conviction liable to enhanced punishment or to punishment of a different kind
for such subsequent offence the procedure shall be as follows : —

(a) Such further charge shall not be read out in Court and the accused shall
not be asked to plead thereto, nor shall the same be referred to by the prosecution,
or any evidence adduced thereon unless and until (/) he has been convicted of
the subsequent offence, or (ff) the Jury have delivered their verdict or the opinions
of the assessors have been recorded on the charge of the subsequent offence.

(q) Queen Emperor V. Bharosa, (1895) 17 A. 123 ; Sheikh Chamman, (1919)

1 Pat. L. T. 11 : 1919 Pat. Supp- C. V . N. 463 : 21 Cr. L. J. 143 : 54 I. C. 623 ■
Bantia, (1921) 22 Cr. L. J. 750 : 64 I. C. 142.

(r) Kashia Antoo , (1907) 10 Bom. L. R. 26.

(s) Gala Mana, (1924) 20 Bom. L. R. 434.

(t) Ismail Ali Bhai, (1915) 39 B. 326 : 16 Bom. L. R. 934 : 16 Cr. L. J. 83 : 26
T. C. 995.

(u) Sheikh Abdul, (1916) 43 C. 1128 : 20 C. W N. 725: 17 Cr. L. T. 185: 33
I C. 825.

(v) Yasin, (1901) 28 C. 689 : 5 C. W. N. 670.

(w) (1906) 4 N. L. R. 163 : 0 Cr. L. J. 56.

(x) Yasin , (1901) 28 C. 689 : Basanta Kumar Ghatak, (1898) 26 C. 49.

(y) Shtboo Mundle, (1865) 3 W. R. (Cr.) 38 ; Jehan Mullick, (1865)5 W. R, (Cr.) 67.

(a) Kristo Behary Dass, (1883) 12 C. L. R. 555.

SEC. 75]

OF PUNISHMENTS

91

(b) In the case of a trial held with the aid of assessors, the Court may, in its
discretion, proceed or refrain from proceeding with the trial of the accused on the
charge of the previous conviction (a).

But evidence of the previous conviction may be given at the trial for the sub-
sequent offence if the fact of previous conviction is relevant under the provisions
of the Indian Evidence Act (b).

Charge : — If the accused having been previously convicted of any offence
is liable , by reason of such previous conviction to enhanced punishment or to
punishment of a different kind for a subsequent offence, and it is intended to prove
such previous conviction for the purpose of affecting the punishment which the
Court may think fit to award for the subsequent offence , the'fact, date and place
of the previous conviction shall be stated in the charge. If such statement has
been omitted , the Court may add it at any time before sentence is passed (c). The
object of this statement in the charge is to give the accused notice of his liability
to enhanced punishment in order, therefore, to put the accused upon enquiry ; men-
tion of the fact, date and place of the previous conviction is essential otherwise
the accused cannot be legally sentenced to enhanced punishment (d).

If a prisoner is to be tried for an offence punishable under section 75 of the
Indian Penal Code, a separate charge under that section must be framed and
recorded (e). If the charge states that he 1 is an old offender * that is sufficient (f).

' Charge after previous conviction should run thus

I (name end office of the magistrate , etc) hereby charge you as

follows :

That you, on or about the day cf at committed

f ....... . .and thereby committed an offence punishable under section

of the Indian Penal Code and within my cognizance or within the cognizance of
the Court of Session (or the High Court).

And you the said stand further charged that you, before the com-
mitting of the said offence, had been convicted on the day of in

Calendar No of on the File of of an offence

punishable under chapter XII (or chapter XVII) of the Indian Penal Code with

imprisonment for a term of three years, to wit, the offence of which

conviction is still in force and effect, and that you are thereby liable to enhanced
punishment under s. 75 of the Indian Penal Code

And I hereby direct that you be tried by the said Court of Session, (or High
Court) on the said charge.

In all cases in which a previous conviction of any offence renders an accused
person liable to whipping, if he is convicted on the charge for which he is under
trial, and it is intended to prove such previous conviction to enable the Court to
pass the additional sentence of whipping, the charge should be drawn up as
follows : —

That at a date previous to the date of the offence of now charged

against you .viz., on the you. ...... .were convicted by

the Court of of the offence of specified in section 3 or 4

(as the case may be) of the Whipping Act (IV of 1909) and that this conviction of
is still in full force and effect and being a conviction for the same

(a) Section 310 of the Code of Criminal Procedure.

(b) Section 311 of the Code of Criminal Procedure.

(c) S. 221 (7), Code of Criminal Procedure.

(d) Haider , (1883) A. W. N. 110.

(e) Dorasami , (1886) 9 M. 284 ; Durtgri, (1911) P. W. R. No. 40 of 1911 : 10 I. C.
241 yEshan Chander Bey. (1873) 21 W. R. (Or.) 40.

(f) Yippika, (1881) 1 Weir 885.

92

THE INDIAN PENAL CODE

[CHAP. IV

specific offence as that now charged against you, renders’ you liable in case you

should now be again convicted of to the punishment of whipping

in addition to the punishment provided for the said offence by the Indian Penal
Code.

CHAPTER IV.

General Exceptions.

The Authors of the Code observe as follows : — “ This Chapter has been
framed in order to obviate the necessity of repeating in every penal clause a con-
siderable number of limitations. Some limitations relate only to a single provision,

or to a very small class of provisions Every such exception evidently

ought to be appended to the rule which it is intended to modify. But there are
other exceptions which are common to all the penal clauses of the Code, or to a
great variety of clauses dispersed over many chapters. Such are the exceptions in
favour of infants, lunatics, idiots, persons under the influence of delirium ; the
exceptions in favour of acts done by the direction of the law, of acts done in the
exercise of the right of self-defence, of acts done by the consent of the party harmed
by them. It would obviously be inconvenient to repeat these exceptions several
times in every page. We have, therefore, placed them in a separate chapter, -and
we have provided that every definition of an offence, every penal provision, and
every illustration of a definition or penal provision, shall be construed subject to
the provisions contained in that chapter” (g).

Throughout this chapter the word * offence * denotes a thing punishable
under the Penal Code, or under any special or local law (h). Under s. 6 of the
Code every definition of an offence, every penal provision, and every illustration
of every such definition or penal provision, throughout the Penal Code, shall be
understood subject to the exceptions contained in this Chapter. Under s. 5 it is
expressly enacted that nothing in this Act is intended to repeal, vary, suspend, or
affect, any of the provisions of any special or local law.

Burden of proof on the accused .•—Under s. 105 of the Indian Evidence
Act the burden of proving the existence of circumstances bringing the case within
any of the general exceptions in the Penal Code or within any special exception
or provision contained in any other part of the same Code or in any law defining
the offence, is upon the accused, and the Court shall presume the absence of such
circumstances f i).

Legislative changes : — This chapter applies to offences punishable under
Ss. 121 -A, 124- A, 225-A, 225-B, 294-A and 304-A (j).

bounl d “ e bymr s t^ S o n f , 76 \ Nothing is an offence which is
fact believing himself done by a person who is, or who by reason
bound, by law, 0 f a mistake of fact ana not by reason of a

mistake of law in good faith believes himself to be, bound by law
to do it.

(g) Note B.

(h) S. 40, supra. »

(i) In re. Shibo Prosad Pandah t (1878) 4 C. 124 ; Dwijendra Chandra , (1915) 19
C. W. N. 1043. See also Wajid Hossain , (1910) 7 A. L. J. 438.

(j) The Indian Penal Code Amendment Act, 1870 (XXVII of 1870) 5?. 13 as
amended by the Amending Act 1891 (XII of 1891).

SEC. 76]

GENERAL EXCEPTIONS

93

Illustrations .

(а) A, a soldier, fires on a mob by the order of' his superior officer, in conform-
ity Ivith the commands of the law. A has committed no offence.

(б) A, an officer of a Court Justice, being ordered by that Court to arrest Y, and,
after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

Distinction between sections 76 and 79 : — Under s. 76 a person believes
himself to be bound by law to do a thing, while under section 79 he similarly be-
lieves himself to be justified by law in doing it. In other words under section 76
a person believes that he is under a legal obligation to do a thing whereas under s. 79
he thinks he has legal justification to do that thing.

Ignorance of law is no excuse : — “ Ignorantia juris non excusat " i\e.,
ignorance of law does not excuse (k). This is a well known legal maxim which is
sometimes explained as follows : “ ignorantia juris quod quisque scire tenalur nemo -
nem excusat ," i'.e., ignorance of the law which every man is presumed to know
excuseth none (I). Mistake in point of law is no defence in criminal cases. “ Ignor-
ance of the municipal law of the kingdom, or of the penalty thereby inflicted upon
offenders, doth not excuse any, that is, of the age of discretion and composmentis
from the penalty for the breach of it, because every person of the age of discretion
and composmentis is bound to know the law, and presumed so to do" (m). Ignorance
of law is therefore no excuse, and all persons residing within a State, whether
they are subjects or foreigners are bound by it. As Coleridge, J. # observed :
“ We are told to lay down a different rule to what we should apply to native-born
subjects, because these persons are foreigners and ignorant of our law relating
to dwelling. But I agree with the Lord Chief Justice that foreigners who come
to England must in this respect be dealt with in the same way as native subjects.
Ignorance of the law cannot, in the case of a native, be received as an excuse for a
berime, nor can it any more be urged in favour of a foreigner" (n). This rule was
applied in India to a case where the defendant was charged under s. 68 of the
Christian Marriage Act, XV of 1872, for having solemnised a marriage between
persons under the impression that he being a lay trustee of the Church had author-
ity to perform such marriage. The High Court of Madras on appeal in affirming
his conviction said : “ If he had looked at the Act he would have seen at once
that he was not one of the persons authorised to perform the ceremony, and his
real or assumed ignorance of the law could not avail him. The word ‘knowingly’
in s. 68 of the Christian Marriage Act, only applies to the fact that the person is
aware that he is solemnising a marriage, and that one or both of the parties are
Christians" (o).

Austin says : “ If ignorance of law were admitted as a ground of exemption,
the Courts would be involved in questions which it were scarcely possible to solve,
and which would render the administration of justice next to impracticable.
If ignorance of la\y were admitted as a ground of exemption, ignorance
of law would always be alleged by the pa/ty, and the Court in every
case would be bound to decide the point. Whether the party was really ignorant
of the law, and was so ignorant of the law that he had no surmise of its provisions,
could scarcely be determined by any evidence accessible to others. And for the
purpose^ of determining the cause of his ignorance (its reality being ascertained),
it were incumbent upon the tribunal to unravel his previous history, and to search
his whole life for the elements of a just solution" (p).

(k) Broom’s Legal Maxims, p. 231.

(l) Broom’s Legal Maxims, p. 232. This maxim is quoted by Blackstone in 4
Blackstones Commentaries, 21st edition 27.

(m) I. Hale P. C. 42.

(n) Reg. V. Barronet and Attain , (1852) Dearsley 51, see also, Esop , (1836) 7 C. &
P. 466.

(«) Fischer, (1891) 14 M. 342.

(p) Jurisprudence (3rd Edition) Vol. I, p. 498.

94

THE INDIAN PENAL CODE

[ CHAP. IV

Mr. Bishop remarks : “ In civil causes it would seem that if law and fact are
blended as a mixed question or if one*s ignorance of fact are blended as a mixed
question, or if one’s ignorance of fact is produced by ignorance of law, the whole
may be regarded as ignorance of fact, or which the party is at liberty to take ad-
vantage, so, in criminal jurisprudence, if the guilt or innocence of the prisoner
depends on the fact, to be found by the jury, of his having been or not, when he did
the act, in some precise mental condition, which mental condition is the gist of the
offence, the jury in determining the question of mental condition, may take into
consideration his ignorance or misinformation in a matter of law. Thus to consti-
tute larceny, there must be an intent to steal, which involves the knowledge that
the property taken belongs not to the latter. Yet if all the facts concerning the title
are known to the accused, and so the question is merely one of law whether the
property is his or not, still he may show, and the showing will be a defence to him
againt criminal process, that he honestly believed it his, through a misapprehen-
sion of law. A mere pretence of claim set up by one who does not himself believe
it to be valid, does not prevent the act of taking from being larceny” (q).

Where the accused, who was the captain of the ship, had hired native labourers
and carried them on board, and when he set sail, there was no prohibition against
the employment of native labour, but before the native labourers were engaged
Kidnapping Act of 1872 (35 and 36 Viet., c. 19) was passed which prohibited the
enlistment of native labourers without a license and declared it a felony to con-
fine and remove them from one place to another, Bagally, L. J., said : ” It may
however b~ suggested, that the carrying, though not unlawful in its commence-
ment, became so when the Act came into operation, notwithstanding the igno-
rance of the master that any such act was in force and though it was then out of his
power to obtain a license. But before a continuous act or proceeding, not originally
unlawful, can be treated as unlawful by reason of the passing of an Act of Parlies
ment by which it is in terms made so, a reasonable time must be allowed for its
discontinuance and though ignorance of the law may, of itself, be no excuse for the
master of a vessel whr* may act in contravention of it, such ignorance may never-
theless be taken into account when the act or proceeding alleged to be unlawful
was continued, and when and how it was discontinued with a view to determine
whether a reasonable time had elapsed without its being discontinued” (r). It is
no defence on behalf of a foreigner charged in England with a crime committed
there, that he did not know he was doing wrong, the act not being an offence in his
own country. But though it is not a defence in law, yet it is a matter to be consi-
dered in mitigation of punishment (s).

In another case, however, ignorance of law was held to be a case of pardon and
not for acquittal. . In that case, the accused, the master of a ship, was indicted for
maliciously shooting a mariner of another vessel on the high seas. The latter
vessel was sailing without cc lours and was so conducting herself as to give the
accused reasonable ground to think that she was an enemy. On boarding the
latter vessel he found her to be an English vessel but there he quarrelled with
the Captain and after returning to his vessel he ordered three guns to be fired, one
of which wounded the mariner of the latter vessel, because the Captain did not
produce her papers and it was further urged that he did not shoot at the mariner
but at the ship ; and that the prisoner could not be found guilty of the offence with
which he was charged because the Statute 39, Geo. Ill, c. 37 upon which the acr
cused was charged came into force on the 10th May 1799, i.e., six weeks before the
commission of the crime which took place on the 27th June 1 799 and the accused
could not know of the passing cf such statute. The Jury found that the accused

(q) Bishop's Criminal Law (8th Edition), section 311.

(r) Burns V. Nowell, (1880) L. R. 8 Q. B. 444 at 454,

(s) E$op t 1836) 7 C. and P. 456.

SEC. 76]

GENERAL EXCEPTIONS

95

did not lire upon the vessel for non-production of her papers but in consequence
of the general communication which had taken place between him and the mariner
of the latter vessel and that the act of the accused fell within the Statute 39, Geo.
Ill, c. 37, and Lord Eldon held that the guns might be considered as shot at each
individual on board her and that the accused was guilty under Statute 39, Gao. Ill,
c. 37 though he was unaware of its existence and which he thought might be a case
for pardon. But on reference to twelve other judges, it wa3 held that the accused
could not be indicted under a statute of whose existence he had no knowledge ,
and that therefore they thought it right that he should have a pardon (t). Where
a poacher forcibly retook from a game-keeper snares which he had set, in ignorance
of a statute which entitled th<. game-keeper to seize them, held, that he had com-
mitted no offence (u). So where an ignorant person found a five-pound note and
appropriated it, not knowing that he was bound by law to endeavour to discover
the true owner thereof before converting the same to his use, the Court directed
that if the Jury thought that the accused believed the note to be his own because
he had found it, the Jury should return a verdict of not-guilty. Coleridge, J.,
said : “ Ignorance of the law cannot excuse any one but at the same time when the
question is with what intent a person takes what he believes to be his own, it is
impossible to say that he is guilty of felony ” (v).

“ Every man is presumed to be cognisant of the statute law of the realm, and
to construe it aright. It will not be competent to a man to aver in a Court of Justice
that he has mistaken the law, this being a plea which no Court of Justice is at
liberty to receive " (w).

Bona fide mistake of law is a defence s — It has been held by the Calcutta
High Court that the removal of property in the assertion of bona fide claim cf right,
though unfounded in law as also on facts does not constitute theft and that a Court
ought not to convict unless it comes to the conclusion, that the claim set up is a
mere pretence (x). Where the prisoner bona fide seized the nets of fishermen
poaching on his master’s fisheries and refused to give them up without orders from
his master, held that he had committed no offence (y).

Mistake of fact s — As Mayne in his Criminal Law puts it : “ Each of the
sections 76 and 79 contains e reservation in favour of a person who, though neither
bound nor justified by law in doing a particular act, yet by reason of a mistake of
fact, and not by reason of a mistake of law in good faith believes that he is so
bound or justified.”

Mistake may or may not be due to forgetfulness, ignorence, imperfect inform-
ation, or faulty ratiocination. It may be due to chance, negligence or stupidity,
but it must not be due to design, pre-arrangement or pre-concert (z).

Stephen, J., observed about the rule as to mistake of fact as follows : M I
think it may be laid down as a general rule, that an alleged offender is deemed to
have acted under that state of facts, which he, in good faith, and on reasonable
ground believed to exist when he did the act alleged to be an offence " (a). This is
in accordance with Ss. 76 and 79 and with the definition of good faith in s. 52,
where for instance, a hunter mistakes a man for animal and fires, his mistake may
be due to defective vision or defective intellect. In either case if there was no

(t) Richard Bailey , (1800) R. & R. 1.

. (u) Hall, (1823) 3 C. & P. 409.

(v) Reg. V. John Reed , (1842) C. & M. 306 (308).

(w) The Charlotta , 1 Dods. R. 386 (392) and Middleton V. Croft, Stra. 1050
quoted in Broom's Legal Maxims, 9t;h Ed. p. 188.

(x) Arfan Alt V. Emp., (1910) 44 C. 60 ; 20 C. W. N. 1270, see also Hall, (1823)
3 C. & P. 409.

(y) Nobin Chunder, 6 W. R. (Cr.) 79, followed in Nagappa, (1890) 15 B. 344.

(*) Per Russel, C. J., in Sandford V. Beal, (1895) 65 L. J. Q. B. 73. (74.).

(a)* Tolson, (1889) 23 Q. B. D. 168 (1 88) : 16 Cox. 629.

96

THE INDIAN PENAL CODE

[CHAP. IV

mensrea there was mistake as a result of which the hunter intending to do a lawful
act has done what is unlawful. But here is not that conjunction between the deed
and the will which is necessary to form a criminal act/'

** Ignorantia Jacit cxcusatj.e., (ignorance of fact excuses) for such an igno-
rance many times makes the act itself morally involuntary. It is known in war that
it is the greatest offence for a soldier to kill, or so much as to assault his General :
suppose then the inferior officer sets jhis watch or sentinels and the General to try
the vigillance or courage of his sentinels comes upon them in the night in the
posture of an enemy, the sentinels strike or shoot him, taking him to be an enemy,
his ignorance of the person excuseth his offence” (b). So when a man made a
thrust with a sword at a place where upon reasonable grounds he supposed a burg-
lar to be, and killed a person who was not a burglar, he was held to have committed
no offence (c). A constable, who was placed on duty for the express pur-
pose of preventing stolen property from being carried off, saw one early morning
the complainant carrying under his arms three pieces of cloth and suspecting the
same to be stolen property, questioned him and not being satisfied with his an-
swers took him into custody, but the Inspector of Police released the complainant
who thereafter prosecuted the constable for wrongful restraint and confinement
and the Magistrate convicted the constable of the said offence. The High Court
of Bombay held that the accused acted under a bona fide belief that he was legally
justified in detaining property which he suspected to be stolen. The putting
of questions to complainant to clear up his suspicions indicated that he was not
acting otherwise than with due care and attention and he was therefore acquitted (d).
So also, where a Court peon, having a warrant to arrest a judgment-debtor, saw a
palanquin with closed doors coming out of the male apartment of the house and
stopped it, believing it probable that the judgment-debtor was endeavouring to
evade arrest and examined* it, although the persons accompanying it protested and
said that there was a lady in it and the only person found in the palki turned out to
be a pardanashin lady of rank, it was held that the accused were protected by this
section fe). Where the accused, a police-officer came down to Bombay from up-
country with a warrant to arrest one G., and after reasonable enquiries and on
well founded suspicion he arrested the complainant under the warrant believing
in good faith that he was G., then the complainant proceeded against the accused
for wrongful confinement, held that the accused had committed no offence since he
was protected by this section (0- A chaukidar in good faith took the complain-
ant for a thief and captured him, held : “ If there was any mistake regarding the
fact of complainant’s being a thief, it was a mistake of fact , and not mistake of
law” (g). Where a woman administered arsenic to the deceased her lover believing
that the drug would revive love for her and without knowing that it was a deadly
poison, it was held that she was not guilty of an offence under s. 328 as the evidence
did not establish mensrea (h). Where the act of conveying liquor without a license
was made penal by the Madras Abkari Act (i), and the accused proved that they
bona fide believed that they were not transporting liquor, it was held that the accused
having discharged the onus placed upon them by the Act they were entitled to an
acquittal (j). Where an accused charged with selling liquor to a police constable

(b) Hale P. C. 42. _ ~ ~ — —

(c) Levet’s case, (1839) I Hale P. C. 42, cited per Stephen, J., in Tolson , (1889)
23 Q. B. D. 168 (187, 188).

(d) Bhawoo Jivaji V. Mulji Daval, (1888) 12 B. 377, see also Lawrence V. Hedger,
(1810) 3 Taunt 14.

(e) Kanai Lai Gowala, (1897) 24 C. 885.

(f) Gopalia, (1923) 26 Bom. L. R. 138.

(g) Per Campbell, J., in Protap Choukidar, (1865) 2 W. R. (Cr.) 9.

(h) Nagawa, (1902) 4 Bom. L. R. 425.

(i) Madras Aet I of 1866.

(j) Kadan, (1894) 1 Weir 40.

SEC. 76]

GENERAL EXCEPTIONS

97

on duty made good his defence by proving that he bona fide believed that the con-
stable was off duty* it was held that he had committed no offence (k). In another
case the prisoner was convicted of bigamy having gone through the ceremony of
marriage within seven years after she had been deserted by her husband, she believed
in good faith that her first husband was dead and that she had reasonable grounds
for believing the fact at the time of the second marriage, held , that he had commit-
ted no offence and the conviction was set aside (1).

Mistake of fact when not a good defence 5 — There are three exceptions
to the legal maxim, ignorant ia facit excusat , (mistake of fact is an excuse),
namely : —

(1) When the act is clearly wrong in itself ; (2) Mistake without good faith is
insufficient ; (3) Where the act is penal and knowledge is immaterial.

1 . Act clearly wrong in itself : — An English girl (unmarried) under the age
of 16 years told the prisoner that she was 18 and the accused bona fide and reasonably
believed that the girl was older than sixteen and unlawfully took her out of the
possession and against the will of her father, it was held that he was guilty notwith-
standing his erroneous bona fide belief (m), for a man deals with an unmarried
girl at his peril (n). Similarly, where a man aged 58 administered poison (arsenic)
to two little boys and took the precaution that his own sons should not have any
share of it, held , that he was guilty of murder even though his intention may not
have been to cause death, for a man must be presumed to intend the natural and
probable consequences of his act (o).

2. Act committed without good faith ; — Mistake of fact will not excuse a
person who acts without good faith, i.e.. without due care and attention (s. 52
supra).

A person, who kills another on suspicion that he carries on intrigue with his
wife, cannot plead mistake, for in the particular facts and circumstances of the case,
he could not establish his honest belief as required by law (p). Where a police
officer seeing a horse tied up resembling one which his father had lost without
sending for the supposed owner or obtaining credible information whether it was
his father’s horse or not, arrested the vendor and released him on bail, the Court
held that the mistake of fact did not exculpate him since he had acted without due
care and attention (q). A woman who obtained a powder from the enemy of her
relative and mixed it with her relation’s food without taking care to ascertain whe-
ther it was noxious, thinking that she would thereby become rich, she was held
guilty of an offence under s. 304-A, and was not protected by this sec-
tion (r), so too, a woman who administered poison that she had received from
her paramour thinking it was love potion was not protected (s). Where a man
in the early hours of the morning saw a child stooping at a place which was
supposed to be haunted and killed the child thinking it was a demon, held 9 that he
was rightly convicted under s. 304-A since he did not act in good faith (t). A
man ignorant of surgery performing a dangerous operation cannot be protected
by this section as he can hardly be said to have acted in good faith (u).

(k) Sherras V. Be Ruzen , (1895) I Q. B. 978.

(l) Tolson, (1889) 23 Q. B. D. 178.

(m) Prince , (1875) L. R. 2 C. C. R. 154, referred tom Reg. V. Tolson , (1889)23
Q. B. D. 168.

• (n) Reg. V. Ollifer, 10 Cox 404.

(o) Gourisqnkar, (1918) 40 A. 360.

(p) Deoji, (1895) 20 B. 215.

(q) Sheo Shut an Sakai V. Mahamed Fazil Khan, (1868) 10 W. R. (Cr.) 20.

(r) Jamni, (1909) 31 A. 293. V

(s) Pika Bewa t (1912) 39 C. 855 ; Giriyappa, 4 Bom. Cr. C. I., see also Mussantat
Bhukhan. (1887J P. R. No. 60.

(t) , Hayat, {1888) P. R. No. 11 of 1888.

(u) Sukaroo , (1887) 14 C. 566, *

13

98

THE INDIAN PENAL CODE

[CHAP. IV

3. Act penal : knowledge immaterial .‘—When an act is absolutely prohibited,
presence or absence of knowledge is immaterial, mistake of fact will be no defence.
The Bombay High Court has held in a case under the Bombay Salt Act (Bom. Act
II of 1890) that in order to support a conviction under s. 47(a) of the Bombay
Salt Act it was not necessary to prove knowledge or intention as those were not
essential ingredients of the offence (v).

Where, for instance, a statute rendered it an offence to receive a lunatic into an
unlicensed house, the conviction was upheld, although the jury found that the
accused bona fide believed that the person received was sane (w) ; and similarly
under a statute which made it an offence to sell intoxicating liquor to any drunken
person, held , that the offence was committed, although the vendor did not know
that the vendee was drunk and the purchaser had not indicated that he was under
intoxication (x). In another case it was held to be no defence for a person charged
with selling liquor to a child under 1 4 in a vessel not corked and sealed to establish
that he bona fide believed that the vessel was corked or sealed (y).

Mistake both of law and fact : — It is in some cases that the mistake pleaded
is both a mistake of fact as well as of law, e. g. f where two persons, one a police-man
and the other a private citizen, chase two persons reasonably suspected of having
committed a murder and if each of them kills the supposed cujprits, it has been
held that the police-man will be justified , but not the private citizen (z).

Mr. Bishop says : — M In civil causes it seems that if law and fact are blended
as mixed question, or if one’s ignorance of facts is produced by ignorance of law*
the whole is treated as ignorance of fact of which the party may take advantage” (a).

Obedience to orders when justified : — S. 76 provides for acts done in obe-
dience to orders under a mistake, but the mistake must be one of fact and not of
law , and good faith is another necessary element which must be proved to excul-
pate the crime. Illustration (a) implies that the orders of the superior officer are
in comformity with the commands of the law, while illustration (b) pre-supposes
due enquiry.

Where under an order of the Commissioner of Police which was published
in the Calcutta Gazette and which order was in force for a considerable time, the
Deputy Commissioner made an order for the confinement of a head-constable
who lodged a complaint against th< Deputy Commissioner for an offence of wrong-
ful confinement, it was found that the sanction required under s. 9 of the Calcutta
Police Act had not been granted and as such the order was without jurisdiction,
and further held that the accused was protected under this section (b).

Limits of soldier’s justification : — In a case where firing is ordered the duty
of the soldier is plain. He must refuse to fire unless he believes in good faith that
firing is absolutely necessary, and if he does fire, he does so at his peril. As Willes,
J., remarked : “ I btlieve that the better opinion is that an officer or soldier acting
under the orders of his superior — not being necessarily or manifestly illegal — would
be justified by his orders ” (c). The soldier is to exercise good faith. As Sir
James Stephen says : ” Soldiers might reasonably think that their officer had
good reasons for ordering them to fire into a disorderly crowd, which to them might
not appear to be at that moment engaged in acts of dangerous violence ; but

(v) Maganlal Dalabhai, (1803) 28 B. 346. ^

(w) Reg. V. Bishop, (1879) 0 Q. B. D. 259.

>> Cundy V. Cocq., (1884) 13 Q. B. D. 207.

(y) Brooks V. Mason , (1902) 2 K. B. 743.

(z) 2 Hale P. C. 89 (97).

(a) Bishop’s Criminal Law (8th Ed.), s. 311.

(b) Pramatha Nath V . P. C. Lahiry , (1920) 47 C. 818 : 22 Cr. L. J. 5 : 59 I. C. 37,

distinguished in J, A. Finan, (1931) 33 Bom. L. R. 1182, which followed Dhondn ,
29 Bom. L. R. 713. *

(c) Keighley V. Bell, (1864) 4 F. & F. 490. *

SEC. 77 ]

GENERAL EXCEPTIONS

99

soldiers could hardly suppose that their officer could have any good grounds for
ordering them to fire a volley down a crowded street when no disturbance of any
kind was either in progress or apprehended” (d).

Order to use force : — The cases in which force may be used and to what
extent in order to disperse an unlawful assembly are set out in Ss. 127 to 131 of the
Criminal Procedure Code (e).

4 Bound by law ’ : — Where a defamatory statement was made by a witness
who was not bound by law to go into the witness box, held , that this section did not
apply (f). So it has been held in a case where constables who chased and fired
two men upon illegal orders were themselves guilty of culpable homicide not
amounting to murder (g).

77. Nothing is an offence which is done by a Judge when
Act of Judge when acting judicially in the exercise of any
actmg judicially. power which is, or which in good faith he

believes to be, given to him by law.

Analogous Law : — The section and the next protect judges, and ministerial
officers, from criminal cases as the Judicial Officers* Protection Act (XVIII
of 1850) saves them from civil liability. Section 1 of that Act is in the following
terms : —

" No J udge, Magistrate, Justice of the Peace, Collector or other person acting
judicially shall be liable to be sued in any Civil Court foi any act done or ordered to be
done by him in the discharge of his judicial duties, whether or not within the limits
of his jurisdiction : Provided that he at the time, in good faith, believed liimself to
have jurisdiction to do or order the act complained of."

The word 4 judge * is defined in s. 19, supra . The law of all countries have
protected their judges by special legislation. So Markby, J., observed : “ The duties
which he (a magistrate) usually performs are of such a nature as to render it abso-
lutely necessary for their due performance that he should have that protection. He
has generally either to punish an offence or to vindicate the rights of a private
individual ; and if he were hampered by fear of the consequences which might
arise from a mistaken conclusion, he could not have that independence of mind
which is essential to the discharge of such functions as these. This protection
is not confined to persons holding and exercising a regular judicial office, but it
extends to any person whose duty it is to adjudicate upon the rights of punishing
the misconduct of any given person, whatever form the proceedings may take, or
however informal they may be. This has been so held in England (h) and
I do not see any reason to doubt that the same would be held here ’* (i).

As regards civil suits the general principle according to English law is that
Judges are protected from suits for acts done within jurisdiction and cannot claim
privilege when they act wholly without jurisdiction (j). The whole law on the
subject was discussed in an well-known case of Kemp V. Neoille (k) by Earle,
C. J., as follows : 44 The rule that a judicial officer cannot be sued for an adjudica-
tion, according to the best of his judgment, upon a matter within his jurisdiction,
and also the rule that a matter of fact so adjudicated by him cannot be put in issue
in an action against him, has been uniformly maintained.”

Good faith : — See s. 52, supra.

(d) Stephen’s History of Criminal Law, Vol. II, 205.

(e) Subba Naik, (1898) 21 M. 249.

m Bhagwan Singh V. Arjun Datt , (1920) 18 A. L. J. 840.

(g) Nga Myat Tha t (1882). S. J. L. B. 164.

(h) Tozer v. Child, ( 1857) 7 E. & B. 377.

(i) Chuvder Narain V. Brojo Bullab , (1874) 14 Seng. L. R. 254 (257, 258).

(j) • Per frarlcc, B., in Cadler V. H«lket, (1839) 2 M. T. A. 239 (307).

(k) 10 C. B. N, S., p. 547 ; 31 L. J. C. P. 158.

100

THE INDIAN PENAL CODE

[CHAP. IV

The protection given to Judges under Act XVIII of 1850 (Judicial Officers*
Protection Act) only applies when the defendants have used good faith, i.e., “ due
care and attention ” (s. 52) or in the language of the Privy Council : “ If a party
bona fide , and not absurdly, believes that he is acting in pursuance of a statute,
he is entitled to the special protection which the legislature intended for him al-
though he has done an illegal act*' (1). Where criminal information is applied
for against a magistrate, the question is not whether the act done be found on
investigation to be strictly right or not ; but whether it proceeded from an unjust,
oppressive, or corrupt motive or from mistake or error only (m). Therefore when
magistrates act uprightly, though they mistake the law, no information will lie
against them (n).

Judicially : — The word “ judicially ” has two meanings. It may refer to the
discharge of duties exercised by a judge or justices in Court, or to administrative
duties which need not be performed in Court, but in respect of which it is necessary
to bring to bear a judicial mind, i.e., a mind to determine what is fair and just
in respect of the matters under consideration. Justices, for instance, act judicially
when administering the law in Court and they also act judicially when determining
in their private room what is right and fair in some administrative matter brought
before them, e.g. t the levying of a rate (o). The word * judicially ’ properly applies
to such a proceeding as is proper to a Judge (p). The immunity does not depend
upon the question whether the subject matter of consideration is a Court of
Justice, but whether it is a Court of law, e.^., it applies to Coroner’s Court. It
applies to all acts of a judicial nature (q). It is not in respect of acts in Court,
acts sedente curia (sitting in court) that a judge has immunity but in all acts of a
judicial nature (r). Therefore an order under the seal of a criminal Court to bring
a native in that Court, to be there dealt with on a criminal charge, is an act of a
judicial nature, and whether there was any irregularity or error in it, or not, would
be dispunishable by ordinary process at law (s). So the taking or refusing bail is
a judicial and not merely ministerial act (t). The Judge must be acting in a
matter and place where he has jurisdiction and must be actually exercising his
judicial functions over the matter for decision or he must by exercising good faith
believe that he has jurisdiction to act in the matter (u).

As Mr. Mayne in his Criminal Law observes on this point : “ Where
the error as to jurisdiction under which the judge acts is one of law, the question
will be first , whether as a matter of fact he believed that he was acting legally ;
secondly , whether this belief was one which with reference to his position and
attainments, the difficulty of the matter under discussion, and the opinions en-
tertained upon it by others, he might reasonably have held ; or whether the mistake
is one which is so irrational that it can only be ascribed to perverseness, malice or
corruption (v). On the other hand, it has been held that where he has jurisdiction
he is protected by statute even though he has discharged his duties erroneously,
irregularly, or illegally, and without believing in good faith, that he had jurisdic-
tion ( Teven V. Ram Lall , 12 All. 15)" (w). Crompton, J., observed in the case of

(l) Spooner V. Juddow, (1848) 4 M. I. A. 353 (370).

(m) Borron, (1820) 3 B. & Aid. 432 ; see in re. Fevtiman , 2 A. & E 127 ; Reg.
Badger, 4 Q.B. 468 : 7 Jur. 216 : 12 L. J. S. M. C. 66.

(n) Jackson , 1 T. R. 653.

(o) Per Lopez, L. J., in Royal Aguarium V. Parkinson, (1892) 1 O. B. 431 (452).
(p> Per Fry, L. J., in Ibid, p. 447 v '

(q) Royal Acquarium V. Parkinson, (1892) 1 Q. B. ( pp. 440, 447.

(r) Calder V. Halket , (1839) 2 M. I. A. 293 (308).

(s) Ibid, p. 308.

(t) Parankusam V. Stuart, 2 M. H C. R. 396

(u) Calder V. Halket , (1830) g M. I. A. 293.

(v) Sheshaiyanger V. Raghunatk Row, 5 M. H. C. R. 345.

(w) Mayne “ Criminal Law,” 3rd Ed., p. 379. *

SEC. 78]

GENERAL EXCEPTIONS

101

Fry V. Collins Blackburn (x) : “ It is a principle of our law that no action will lie
against a judge of one of the superior Courts for a judicial act, though it be alleged
to have been done maliciously and corruptly/’

Procedure : — For the prosecution of judges and magistrates sanction of the
Local Government is a pre-requisite, vide s. 197, Code of Criminal Procedure.

The requirements of s. 197, Cr. P. Code, that the party charged should be
accused as a public servant war not satisfied in the case of Corporation of Calcutta
V. Administrator General of Bengal (y).

78. Nothing which is done in pursuance of, or which
is warranted by the judgment or order of,

Act done pursuant to a Court 0 f Justice, if done whilst such

of Court. judgment or order remains m force, is an

offence, notwithstanding the Court may
have had no jurisdiction to pass such judgment or order, provided
the person doing the act in good faith believes that the Court had
such jurisdiction.

Court of Justice s. 20 Good faith— s. 52.

This section is a corollary to s. 77. It differs from s. 77 on the point of juris-
diction. While under s. 77 a judge will not be protected if he acts without juris-
diction, under this section a ministerial officer will be protected if while carrying
out orders of a Court he believed in good faith that the Court had juris-
diction, even though it turns out that the Court had no jurisdiction. This section
goes beyond s. 79 inasmuch as under this section (78) a mistake in law is a
defence whereas under s. 79 the mistake must be one of fact to excuse the crime.

Protection of police officers from prosecution or civil liability.

“ When any action or prosecution shall be brought or any proceedings held against
any police-officer for any act done by him in such capacity, it shall be lawful for him to
plead that such act was done by him under the authority of a warrant issued by a
magistrate.

" Such plea shall be proved by the production of the warrant directing the act,
and purporting to be signed by such magistrate, and the defendant shall thereupon
be entitled to a decree in his favour, notwithstanding any defect of jurisdiction in
such magistrate. No proof of the signature of such magistrate shall be necessary,
unless the Court shall see reason to doubt its being genuine ;

“ Provided always that any remedy which the party may have against the
authority issuing such warrant shall not be affected by anything contained in this
section " (z).

The protection given by this section can be forfeited where a bailiff being
entrusted with civil process arrests a witness on his way to Court, who as such
witness was privileged eundo, morando et redeundo , i.e., (while going, staying and
returning) and persisted in the arrest after due notice, it was held that he was not
protected under this section as although at the time when the process were issued
the officer issuing the warrant had jurisdiction still after the issue of the warrant
special circumstances had arisen after the issue which took away the jurisdiction of
the peon to execute the warrant (a). Similarly, it has been held that the bailiff will
not be protected if he breaks open a house in executing process against the move-
able property of a judgment-debtor (b). When a bailiff break s the doors of a third

(x) 3 B. & S. 076 (678).

(y) (1903) 30 C. 927 (933).

(z) Police Act, Act V of 1801, s. 43.

(a) Thakurdas V. Shankar Roy , (1806) 3 W. R. (Cr.) 53 s
•(b) Me . Queen , 7 W. R. (Cr.) 12.

102

THE INDIAN PENAL CODE

[CHAP. IV

person in order to execute a decree against the judgment-debtor and thus exceeds
the power given to him by the warrant, the party wronged may treat him as a tres-
passer and may either use his right of private defence against him or sue him in
damages (c).

79. Nothing is an offence which is done by any person who
Act done by a per- is .justified by law, or who by reason of a
°£.w y mistake of fact and not by reason of a mis-
ing himself justified, by take or law in good raith believes nimselt
law - to be justified by law, in doing it.

Illustration .

A sees Z commit what appears to A to be a murder. A, in the exercise, to the
best of his judgment, exerted in good faith, of the power which the law gives to all
persons of apprehending murderers in the act, seizes Z , in order to bring Z before the
proper authorities. A has committed no offence, though it may turn out that Z was
acting in self-defence.

This section is analogous to s. 76 and must be read along with that section.

This section is not applicable to the offence of bigamy (d).

Mistake of law : — See notes to s. 76. A husband has no right under the
Hindu or Mahomedan law to use force or restraint to compel his wife to live with
him believing himself to be justified by the provisions of the English law. The
conviction of the accused husband under Ss. 1 47 and 148 has been held to be valid(e).

Mistake of fact : — See commentary on s. 76. The Patna High Court has
held that when the person arresting believes in good faith by reason of a mistake
of fact that a non-bailable offence had been committed and arrests a person under
s. 59 of the Cr. P. Code, the accused is protected under this section (f).

Where accused believed that certain police-officers who came to conduct a
search were armed robbers and in the attempt to escape seizure, a revolver was
used with a view to making them over to the custody of the authorities, held , that
the accused was not guilty of any offence (g). Mukerjec, J., (sitting singly) in 5. A.
Hamid V. Sudhir Mohan Ghosh's case (h) held that it was possible that the peti-
tioner, a District Traffic Superintendent who was convicted under s. 342,
for having seized the hand of the complainant and dragged him to the ticket col-
lector and ordering him to realize the fare from the terminus (Narayanganj to
Mymensingh), did make a mistake and that he bona fide believed that the
complainant and his companion were trespassers or that they had alighted from the
train and were attempting to evade the cheating but his mistake would not justify
him in catching the hands of the complainant and his companions and thus taking
them from near the over-bridge to the exit gate and upheld the conviction and
sentence of fine of Rs. 15.

Section how far applicable to special or local law The Madras High
Court has held that the plea of justification provided by this section is available
only for an offence punishable by the Code and not for offences punishable by any
special or local law and hence the belief of the accused that he was justified in his

(c) Gasi Khan Aba Dote, 7 Born. II. C. R. 83 ; Kishory Mohan V. Horshooh, 17 C.
436 P. C. ; Datnodhar V. Lai, 8 Bom. II. C. R. (A. C.) 177 ; Goma V.. Gokul Das. 3 B.
74; Subjan V. Saritalla, 12 W. R. 329.

(d) Naran Takalh Avullah V. Parakhal Munum, (1921) 45 M. 986 : 43 M. L. T.
663 : (1922) M. W. N. 062.

(e) Ramlo, (1918) 12 S. L. II. 29 : 19 Cr. L. J. 955 : 47 I, C 807.

(f) Raghunath Das, (1919) 5 Pat. L. J. 129: 1 Pat. L. T. 60: 1920 Pat. Sudp.
C. W. N. 76 : 21 Cr. J. J. 213 : 54 I. C. 997.

(g) Kishen Lai, (1924) 22 A. L. J. 501.

(h) (1929) 57 C. 102.

SEC. 79 ]

GENERAL EXCEPTIONS

103

act does not exculpate him from punishment for his guilt under the Forest Act (i).
Where the accused, a contractor engaged by the Public Works Department, quarried
stones from a Government reserve forest and did not take permission of the
Forest Department, but the place from which stones should be quarried were
pointed out to him by the officers of the Public Works Department, held , that
conviction of the accused under the Forest Act should be set aside on the ground
that he was protected under this section (j).

Act of State : — Stephen says : “ I understand by an ‘ act of State * an act
injurious to the person or to the property of some person who is not at the time of
that act a subject of Her Majesty ; which act is done by any representative of
Her Majesty’s authority, civil or military, and is either previously sanctioned or
subsequently rectified by Her Majesty

“ When an act of this sort is an act of open war, duly proclaimed, there can be
no doubt at all that it does not amount to a crime. However unjust a war might
be, and however cruelly it might be carried on, there can be no question that the
acts done in such a war by the orders of military and naval commanders do not fall

under the notice of the ordinary criminal law If England were invaded,

and if, for military reasons, unarmed prisoners, after resirtance had ceased, were to
be put to death by an English General, I do not think that a Court of law would
inquire whether his conduct was proper or not. As soon as it appeared that what

was done was an act of war the matter would be at an end The difficulty

arises when acts which are in their nature warlike are done in time of peace

I think that if such acts are done by public authority, or, having been done, are

ratified by public authority, they fall outside the sphere of the criminal law

I do not know that the principle has ever been tested by a criminal prosecution,
but it has been repeatedly affirmed in civil cases ; and if a man is not even liable
civilly for an act of State, it would seem to follow a fortiori that he cannot be
liable criminally

“ In order to avoid misconception it is necessary to observe that the doctrine
as to acts of State can apply only to acts which affect foreigners, and which are done
by the orders or with the ratification of the Sovereign. As between the Sovereign
and his subjects there can be no such thing as an ‘ act of State/ Courts f f law
are established for the express purpose of limiting public authority in its conduct
towards individuals. If one British subject puts another to death or destroys his
property by the express command of the King, that command is no protection to
the person who executes it unless it is in itself lawful, and it is the duty of the
proper Courts of justice to determine whether it is lawful or not. On this ground
the Courts were prepared to examine into the legality of the act done under
Governor Eyre’s authority in the suppression of the insurrection in Jamaika. The
acts affected British subjects only. But as between British subjects and foreign-
ers, the orders of the Crown justify what they command so far as British Courts
of justice are concerned ” (k).

An * act of State ’ is an act which has been done by a Sovereign power to pro-
perty public or private of an independent or semi-independent State, or to the
subject of another State, or to one of its own subjects in a state of rebellion and not
( an ordinary transaction between a State and its subjects which is governed by the
municipal law. As the Privy Council observed : “ The transaction of independent
States between each other are governed by other laws than those which municipal

(i) Lewis K. /?., (1013) 38 M. 773: 15 M. L. T. 124: 15 Cr. L. J. 171 : 22
Cr. L. J. 747.

(i) Kassim Isub Sab t (1912) 14 Bom. L. R. 365 : 13 Cr. L. J. 530 : 15 I. C. 802.

(k) Stephen's History of the Criminal Law of England, Vol. II, 61-65.

104

THE INDIAN PENAL CODE

[CHAP. IV

courts administer — such courts have neither the means of deciding what is right,
nor the power of enforcing any decision which they may make ” (1)* In this case
the Raja of Tanjore, a Native Chief died without leaving a male issue and the East
India Company, escheated the State, in the exercise of their Sovereign power. The
senior Rani of the late Raja brought a suit against the Government for the re-
covery of the private property of the late Raja and the Supreme Court of Madras
decreed her claim holding that though the Company could escheat the Raj as
an act of State, as according to Hindu Law private property would devolve amongst
all the heirs, but though this was conceded by the Privy Council, they did not
discriminate between the two acts. Lord Kingsdown observed : “ But assuming
this, if the Company in the exercise of their Sovereign power, have thought fit to
seize the whole property of the late Raja, private as well as public, does that
circumstance give any jurisdiction over their acts to the Court at Madras ? If the
Court cannot inquire into the act at all, because it is an ‘ act of State,* how can it
inquire into any part of it, or afford relief on the ground that the Sovereign power
has been exercised to an extent which municipal law will not sanction ** (m).

But it is not as between independent states only that the acts of State are out~
side the jurisdiction of the municipal law. Where the plaintiff had a claim in a
colony in China — war broke out between Great Britain and China and the colony
or guild was abolished, thereafter the Emperor of China on treaty of peace with
the British Government paid an indemnity for losses suffered by British subjects.
The plaintiff sued to compel the Crown to pay off his claim, his suit was dismissed.
Blackburn, J., observed ; “I do not think it can possibly be said that when the
Queen has, as a high act of State, made a treaty, and received money in consequence
of an ‘act of State*, the mode of distributing is in any way enforceable by a Court of
law or subject to the finding of juries. I think there is a moral claim that it be
given to the right person, which must be investigated in the manner in which Her
Majesty is pleased to direct, and the ministers who it would probably be
responsible in Parliament if they did it unjustly” (n). An act which is done
by the express order of the Crown would be an ‘act of State* and becomes one by
subsequent ratification by the Crown (o). An * act of State ’ depends for its juris-
diction on considerations of external politics and duties and rights affecting internal
affairs of a State and nothing done under ‘ municipal law * is an ‘ act of State * (p),
e.g. % a seizure of territory by the British Government as a Sovereign power (q), an
order deposing a Native Ruling Chief is an ‘ act of State * fr) # so too is an act done
by an agent of Government in his political capacity (s).

The civil Courts have jurisdiction to consider the legality of Sovereign's act
towards his own subjects (t). A British Court may enquire into the character of
the Governor of a Foreign State and i% not bound to accept an * act of State * (u).

(l) Per Lord Kingsdown in Secretary of State V. Kamachee Boye Shahaba, (1859)
7 M. I. A. 476.

(m) Ibid at p. 537, see Ex-Rajah of Coorg V. The East India Company , (1860)

29 Beav. 300 ; Doss V. The Secretary of State for India, (1875) L. R. 19 Eq. 509 ; Raja
Saligram V. The Secretary of Stale for India, (1872) 12 B. L R. 167 (P. C.) at p 184 ;
Sirdar Bhagawan Singh V. The Secretary of State for India, (1874) 2 1. A. 38.

(n) Rustomjee V. The Queen, 1 Q. B. D. 487 : L. R. 2 Q. B. D. 69

(o) Buron V. Denman , 2 Exch. 167, approved of in Secretary of State V. Kamachee
Boye Shaheba , (1870) 7 M. I. A. 476.

(P) Jehangir V. Secretary of State, (1903) 27 B. 189 : 6 Bom. JL. R. 131, 148.

(q) The Secretary of State V. Kamachee Boye Saheba , (1859) 7 M. I. A. 476.

(r) In re. Maharaja Madhav Singh, (1904) 32 C. I. : 6 Bom. L. R. 763 (P. C.).

(s) Inhabitants of Mahalingpore V. Anderson, (1870) 7 B. L. R. 452.

(t) In re. Ameer Khan , (1870) 6 B, L. R 392 ; see also Carr. V. Francis Turner
6* Co. t (1902) A. C. 176.

(u) The Bombay Burma Trading Corporation Limited V. Mirza Mahamed AH
Sherazee , (1873) 10 B. L. R. 345.

SEC. 80]

GENERAL EXCEPTIONS

105

Good faith must be proved by the accused if he wants protection under this
section (v).

80. Nothing is an offence which is done by accident or
misfortune, and without any criminal in-
Accidcnt in doing a tention or knowledge in the doing of a lawful
lawful act. act in a lawful manner by lawful means and

with proper care and caution.

Illustration.

A is at a work with a hatchet ; the head flies oil and kills a man who is standing
by. Here, if there was no want of proper caution on the part of A, his act is excusable
and not an offence.

This section says that it is no offence to do a lawful act in a lawful manner if
the act is done, without criminal intention or knowledge, by accident or misfortune.

Accident , Accident differs from occurrence in that it is something which
happens out of the ordinary course of things (w).

When is accident a good defence In order that an act should be
justifiable on the ground of accident it must be shown (1) that the act was done by
accident or misfortune, (2) that it was not done with either criminal knowledge or
intention, (3) thai it was the outcome of a lawful act, (4) which was done in a lawful
manner, (5) by lawful means, (6) and done with proper care and caution. Tindal,
C. J., said : — “ If death ensues as the consequence of a wrongful act—an act which
the party who commits it can neither justify nor excuse — it is not accidental death
but manslaughter” (x).

Criminal intention and knowledge It is a principle of natural justice
and of our law,” says Lord Kenyon, C. J., “ that actus non facit reum nisi mens
sit rea (the intent and act must both concur to constitute the crime)” (y). This
principle was illustrated in a case as follows : — ' " The guilty intent is not necessarily
that of intending the very act or thing done and prohibited by Common or Statute
Law, but it must at least be the intention to do something wrong. The intention
may belong to one or other of two classes. It may be to do a thing wrong in itself
and apart from positive law, or it may be to do a thing merely prohibited by Statute
or Common Law, or both elements of intention may co-exist with respect to the
same deed. There are many things prohibited by no Statute — fornication, or
seduction, for instance— which nevertheless no one would hesitate to call wrong ;
and the intention to do an act, wrong in this sense at the least, must, as a general
rule, exist before the act done can be considered a crime. Knowingly and inten-
tionally to break a Statute, must I think, from the judicial point of view, always
be morally wrong in the absence of special circumstances applicable to the parti-
cular instance and excusing the breach of the law, as for instance, if a municipal
regulation be broken to save life or to put out a fire. But to make it morally right
some such special matter of excuse must exist, inasmuch as the administration of
justice and indeed, the foundation of civil society rests upon the principle that
obedience to the law, whether it be a law approved of or disapproved of by the in-
dividual, is the first duty of a citizen” (z).

■r — —

(v) Per Newbould, J., in Promathanath Mukhopadhaya, (‘Servant ’ Defamation
•Case) in which the judgment of the Court is that of Rankin, J., on noncompliance of

342, Cr. P. Code (1923) 50 C. 518 : 27 C. W. N. 389 : 24 Cr. L. J. 248 : 71 I. C. 792.

(w) Henwick V. Schmalz , (1868) L. R. 3 C. P. 313, 316 ; see also Hamilton Fraser
V. Pandor , (1887) 12 App. Cases 518 at p. 524.

(x) Fenton’s Case , 1 Lewin, 179.

(y) # Fowler V. Padget , 7 T. R. 509 (514).

(z) Tolson, (1889) 23 Q. B. D. 168, at p. 172.

106

THE INDIAN PENAL CODE

[CHAP. IV

A person may be held criminally liable although he may not have criminal
intention. So Willes, J. observed : '* Although prima facie and as a general rule
there must be a mind at fault before there can be a crime, it is not an inflexible
rule, and a statute may relate to such subject-matter and may be so framed as to
make an act criminal, whether there has been any intention to break the law or
otherwise to* do wrong or not. There is a large body of municipal law in the
present day which is so conceived. Bye-laws are constantly made regulating the
width of thoroughfares, the height of buildings, the thickness of walls and a variety
of other matters necessary for the general welfare, health or convenience, and
such bye-laws are enforced by the sanction of penalties and the breach of them
constitutes an offence and is a criminal matter. In such cases, it would, generally
speaking, be no answer to proceedings for infringement of the bye-laws that the
person committing it had bona fide made an accidental miscalculation or an erro-
neous measurement. The acts are properly construed as imposing the penalty
when the act is done, no matter how innocently, and in such a case the substance of
the enactment is that a man shall take care that the statutory direction is obeyed,
and that if he fails to do so he does it at his peril.

“ Whether an enactment is to be construed in this sense or with the qualified*
tion ordinarily imported into the construction of criminal statutes, that there
be a guilty mind must, I think, depend upon the subject-matter of the enact-
ment, and the various circumstances that may make the one construction of the
other reasonable or unreasonable" (a).

‘ Criminal intention * simply means the purpose or design of doing an act
forbidden by the criminal law without just cause or excuse. An act is intentional,
if it exists in idea before it exists in fact, the idea realising itself in the fact, because
of the desire by which it is accompanied. The motive for an act is not a sufficient
test to determine its criminal character. By a ‘ motive * is meant anything that can
contribute, to give birth to, or even to prevent, any kind of action. Motive may
serve as a clue to the intention ; but although the motive be pure the act done
under it may be criminal. Purity of motive will not purge an act of its criminal
character. Under the Penal Code no man can be tried for any delusion or mis-
conception of mind (b). Where an otherwise innocent act becomes criminal, be-
cause it is done without proper care and caution, is illustrated by the case of (1)
carriage accidents, (2) accidents with fire-arms.

Carriage accidents : — The general law is that in the case of a pure
accident, no criminal or civil responsibility attaches to the doer of the act, (c), but
it is not an accident where a person without any intent tc injure, rides or drives
carelessly, or drives a spirited horse improperly and thereby runs over a person
whom he could have avoided (d), and it is immaterial where the person thus run
over, was deaf and therefore did not run away as it might have been expected (e).
So also a person driving a cart has to see that persons walking on foot are not
injured by his driving (f). Where two omnibuses were racing with each other,
and a driver of one in whipping up one of his horses frightened the horses of the
other, the injury resulting will be referred to the misconduct which brought it
about and it would be no excuse even if it were found as a fact that when it occurred,
the driver could not have prevented it fg). Contributory negligence in such cases
has been held to be no defence, as for instance, where the crowded state of a road
was urged as a plea in extenuation in a cast in which Perin, J. told the jury that

(a) Tolson, (1889) 23 Q. E. D. 168.

lb) Per Stuart, C. J., in Abdul Kadir, (1880) 3 A. 279, 280.

(c) Peg. V. Murray, 5 Cox. Cr. C. 500.

id) 1 Hale, P. C. 476.

ie) Peg. V. Longbottom , 3 Cox. C. C. 439.

i f) Boss V. Litton, 5 C. and P 407 ,

i g) Reg. V. Timmins, 7 C. & P. 499.

SEC. 80]

GENERAL EXCEPTIONS

107

” this unusual concourse of people, instead of offering any extenuation for the pri-
soner, or diminishing the criminality of his careless driving, if they found it to have
been such, would but be a circumstance to add to it, and that it was his duty as
well as of all men driving upon such occasions, to take more than ordinary precau-
tion against accidents, and to use more than ordinary diligence for the safety of the
public” (h). So, too, a person is bound to observe the rule of the road, if he
uses the wrong side he ought to know that he runs a greater risk of causing
accidents (i).

Accidents with fire-arms : — Where a man is shooting with due care and
attention and the bullet or shot passes through a tree and kills a passerby, this is
excused as the accident is due to unforeseen causes (j). In another case where a
prisoner was the maker of fire-works which he stocked on the premises contrary
to law and during his absence owing to the negligence of one of his servants, the
fire- works became ignited and it resulted in the death of the occupant of a neigh-
bouring house, Cockburn, J. observed : ” The keeping of the fire-works in the
shop by the prisoner caused the death only by the super-addition of the negligence
of some one else. By the negligence of the prisoner’s servants the fire-works
ignited, and the house in which the deceased was, was set on fire and death en-
sued. The keeping of the fire-works may be a nuisance ; and if from the unlawful
act of the prisoner death had ensued as a necessary and immediate consequence,
the conviction might be upheld. The keeping of the fire- works did not alone cause
the death ; plus that act of the prisoner there was the negligence of the prisoner’s
servants” (k). This case exonerates the master from criminal liability for the acts
of his servant — so it is not good law as the master is liable for the wilful act of the
servant. It was so held in the case of a baker whose servant to his knowledge had
mixed noxious materials in his bread (1).

The prisoner, who had no license, went with his friend, to shoct
porcupines and they agreed to take up certain positions in the jungle and
waited for the game. Hearing a rustic, the prisoner fired in the direction of the
sound, believing it to be a porcupine. The shot instead of killing the porcupine
killed his companion, held , that the accused was protected under this section (m).
If a person points a gun at another, and it goes off, either by careless handling or
by pulling the trigger, and if he has taken no proper precautions to ascertain whether
the gun was loaded or not, but simply believed or had reasons to believe that it
w r as not loaded, any injury that may follow will not be excused and protected under
this section. Such was the case of a man who had brought a loaded gun home and
fired it off and then shewed it to his wife and she standing before him, he touched
the trigger and it went off and killed his wife. It was proved in the case that
during his absence, a friend had taken out the gun and brought it back loaded and
left it in that state. He was acquitted (n). In another case of this nature, a man
picked up a pistol in the street which he believed to be unloaded as he tried it with
a rammer and found no charge. The rammer in fact was too short. He then
aimed at his wife who was standing before him and the pistol went off and killed
his wife. He was convicted of manslaughter. This ruling was doubted at the
time by Holt, C. J., and afterwards by Foster, J., who said that in his opinion the
judgment was not strictly legal, for the law in these cases does not require the utmost

(h) Reg. V. Murray, 5 Cox. C. C. 509.

(i) Pluckwell V. Wilson, 5 C. & P. 375.

(j) 1 Hale, P. C. 476.

(k) Bennet, Bell, C, C 1.

(l) Dixon, 3 M. & S. 11. See Fateh Chand Agarwalla , (1916) 44 C. 477; 21
C. W. N. 33 : 24 C. L. J. 400 (F. B.).

(m) Timappa , (1901) 3 Bom. L. R. 678.

(n) * Foster's Cr. L. 266.

108 THE INDIAN PENAL CODE [CHAP. IV

caution that can be used ; it is sufficient that a reasonable precaution what is usual
and ordinary in the like cases, be taken” (o).

81 . Nothing is an offence merely by reason of its being
. ... . . done with the knowledge that it is likely

harm! but ^lone with- to cause harm, if it be done without any
out criminal intent, and criminal intention to cause harm, and in
to pievtnt ot ir larm. faith for the purpose of preventing or

avoiding other harm to person or property.

Explanation . — It is a question of fact in such a case whether
the harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.

Illustrations . *■

(a) A , the captain of a steam vessel, suddenly and without any fault or negli-
gence on his part, finds himself in such a position that, before he can stop his vessel,
he must inevitably run down a boat B with twenty or thirty passengers on board,
unless he changes the couise of his vessel, and that, by changing his course, he must
incur risk of running down a boat C with only two passengers on board, which he may
possibly clear. Here, if A alters his course without any intention to run down the
boat C and in good faith for the purpose of avoiding the danger to the passengers in the
boat B he is not guilty of an offence, though he may run down the boat C by doing an
act which he knew was likely to cause that effect, if it be found as a matter of fact that
the dangei which he intended to avoid was such as to excuse him in incurring the risk
of running down C.

(It) A, in a great fire, pulls down houses in order to prevent the conflagration
from spreading. He does this with the intention in good faith of saving human life
or property. Here, if it be found that the harm to be prevented was of such a nature
and so imminent as to excuse A’s act, A is not guilty of the offence.

S. 81 is intended to give legislative sanction to the principle that where, on
a sudden and extreme emergency one or the other of the evils is unavoidable, it
permits the infliction of lesser evil to avoid the greater evil. This doctrine was laid
down by Lord Mansfield, on the trial in England of a Member of Council who
had imprisoned and deposed Lord Pigot, Governor of Madras, who, it was alleged
had brought public business to a standstill by his arbitrary and unconstitutional
proceedings. He said : “ In England it cannot^ happen, but in India you may
suppose a possible case; but in that case it must be imminent, extreme
necessity. There must be no other remedy to apply to for redress ; it must
be very imminent, it must be very extreme ; and in the whole they do, they
must appear clearly to do it with a view to preserve the society and them-
selves with a view of preserving the whole” (p). But nothing in the language
of Lord Mansfield or in the illustrations to this section justifies a man to
take the protection of this section where he injures another to secure some
personal benefit to himself. The English law, the Scotch law (q), and the
Indian law are all to the same effect, viz., that no amount of necessity will
justify a man in stealing clothes or food, however much his wants may go but
necessity or doctrine of self-preservation may be taken into consideration in
mitigation of punishment (r).

This section and the previous one (s. 80) did not find a place in the
first draft but this doctrine of 'self-preservation* was justified by the framers

(o) Foster's Cr. L 264.

(p) R. V. George Stratton; (1779) 21 St. Tr. 1046 at p. 1224.

(q) Alison, Crim. L. 674.

(r) 1 Hale, 64; 2 East. P. C. 698.

GENERAL EXCEPTIONS

109

SEC. 81 ]

of the Penal Code who say: — “We long considered whether it would be
advisable to except from the operation of the penal clauses of the Code acts
committed in good faith from the desire of self-preservation ; and v/e have
determined not to except them.

We admit, indeed, that many acts falling under the definition of offences
ought not be punished when committed from the desire of self-preservation; and
for this feason, that, as the Penal Code itself appeals solely to the fears of men, it
never ean furnish thefh with motives for braving dangers greater than the dangers
with which it threatens them. Its utmost severity will be inefficacious for the
purpose of preventing the mass of mankind from yielding to a certain amount of
temptation. It can, indeed, make those who have yielded to the temptation miser-
able afterwards. But misery which has no tendency to prevent crime is so much
clear evil. It is vain to rely on the dread of a remote and contingent evil as suffi-
cient to overcome the dread of instant death, or the sense of actual torture. An
eminently virtuous man indeed will prefer death to crime ; but it is not to our virtue
that the penal law addresses itself ; nor would the world stand in need of penal laws
if men were virtuous. A map Who refuses to commit a bad action, when he sees
preparations made for killing or torturing him unless he complies, is a man who
does not require the fear of punishment to restrain him. A man, on the other
hand, who is withheld from committing crimes solely or chiefly by the fear of
punishment, will never be withheld by that fear when a pistol is held to his fore-
head or a lighted torch applied to his fingers for the purpose of forcing him to
commit a crime.

“ It would, we think, be mere useless cruelty to hang a man for voluntarily
causing the d&th of others by jumping from a sinking ship into an over-loaded boat.
The suffering caused by the punishment is considered by itself an evil, and ought
to be inflicted only for the sake of some preponderating good. But no prepon-
derating good, indeed no good whatever, would be obtained by hanging a man for
such an act. We cannot expect that the next man who feels the ship in which he
is left descending into the waves, and sees a crowded boat putting off from it, will
submit to instant and certain death from fear of a remote and contingent death.
There are men, indeed, who in such circumstances would sacrifice their own lives
rather than risk the lives of others. But such men act from the influence of principles
and feelings which no penal laws can produce, and which if they were general, would
render penal law unnecessary. Again, a gang of dacoits, finding a house strongly
secured, seize a smith, and by torture and threats of death induce him to take his
tools and to force the door for them ; here, it appears to us, that to punish the
smith as a house-breaker would be to inflict gratuitous pain ; we cannot trust to
the deterring effect of such punishment. The next smith who may find himself
in the same situation will rather take his chance of being, at a distant time, arrested,
convicted and sentenced to imprisonment, than incur certain and immediate
death.

“ In the cases we have put, some persons may perhaps doubt whether
there ought to be impunity*; but those very persons would generally admit that the
extreme danger was a mitigating circumstance to be considered in apportioning the
punishment. It might, however, with no small plausibility be contended that if
any punishment at all is inflicted in such cases, that punishment ought not to be
merely death, but death with torture ; for the dread of being put to death by torture
I might possibly be sufficient to prevent a man from saving lus own life by a crime ;
"but it is quite certain, as we have said that the mere fear of capital punishment
which is remote, and which may never be inflicted at all, will never prevent him
from saving his life. And a fortiori , the dread of a milder punishment will not
prevent him from saving his life. Laws directed against offences to which men
are prompted by cupidity, ought always to take from offenders more than those

no

THE INDIAN PENAL CODE

[CHAP. IV

offenders expect to gain by crime. It would obviously be absurd to provide that
a thief or a swindler should be punished with a fine not exceeding half the sum
which he had acquired by theft or swindling, in the same*nanner, laws directed
against offences to which men are prompted by fear ought always to be framed in
such a way as to be more terrible than the dangers which they require men to
brave. It is on this ground, we apprehend, that a soldier who runs . away #in action
is punished with a rigour altogether unproportioned to the moral depravity which
his offence indicates. Such a soldier may be an honest andsbopevolent n\an 'and
irreproachable in all the relations of civil life; yet he i$*punished as severely as a
deliberate assassin, and more severely than a robber or a kidnapper. Why is
this? Evidently because, as his offence arises from fear, it must be punished in
such a mannei that timid men may dread the punishment more than they dread
the fire of the enemy.

“ If all cases in which acts falling under the definition of offences are done
from the desire of self-preservation were as clear as the cases which we have put
of the man who jumps from a sinking ship into a boat, arid of the smith, who is
compelled by dacoits to force a dor for them, ^should, without hesitation,,
propose to exempt this class of acts from punishment. But it is to be observed
that in both these cases the person in danger is supposed to have been brought
into danger, without the smallest fault on his own part, by mere accident, or by
the depravity of others. If a captain of a merchantman were to run his ship on
shore in order to cheat the insurers, and then to sacrifice the lives of others in order
to save himself from a danger created by his own villainy ; if a person who had
joined himself to a gang of dacoits with no other intention than that of robbing
were, at the command of his leader, accompanied with threats of instant death
in case of disobedience, to commit murder, though unwillingly, the case would
be widely different, and our former reasoning will cease to apply ; for it is evident
that punishment which % inefficacious to prevent a man from yielding to a certain
temptation may often be efficacious to prevent him from exposing himself to that -
temptation. We cannot count on the fear which a man may entertain of being
brought to the gallows at some distant time as sufficient to overcome the fear of
instant death ; but the fear of remote punishment may often overcome the motives
which induce a man to league himself with lawless companions in whose society
no person who shrinks from any atrocity that they may command can be certain
of his life. Nothing is more usual than for pirates, gang-robbers and rioters to
excuse their crimes by declaring that they were in dread of their associates, and
durst not act otherwise. Nor is it by any means improbable that this may often
be true. Nay, it is not improbable that crews of pirates and gangs of robbers may
have committed crimes, which every one among them was unwilling to commit,
under the influence of mutual fear ; but we think it clear that this circumstance
ought not to exempt them from the full severity of the law.

“ Again, nothing is more usual than for thieves to urge distress and hunger
as excuses for their thefts. It is certain, indeed, that many thefts are committed
from the pressure of distress so severe as to be more terrible than the punishment
of theft, and then the disgrace which that punishment brings with it to the mass
of mankind. It is equally certain that, when the distress from which a man can
relieve himself by theft, is more terrible than the evil consequences of theft, those
consequences will not keep him from committing theft ; yet it by no means follows
that it is irrational to punish him for theft ; for though the fear of punishment is*
not likely to keep any man from theft when he is actually starving, it is very &
likely to keep him from being in a starving state. It is of no effect to coun- '
teract irresistible motive which immediately prompts to theft ; but it is of great
effect to counteract the motives to that idleness and that profusion which end in
bringing a man into a condition in which no law will keep him from committing
theft. We can hardly conceive a law more injurious to society than one which

SEC. 81]

GENERAL EXCEPTIONS

111

should provide that a$ soon as a man who had neglected his work, or who had
squandered his wages in stimulating drugs, or gambled them away, had been
thirty-six hours without food, and felt the sharp impulse of hunger, he might, with
impunity, steal food from his neighbours. We should, therefore, think it in the
highest degree pernicious to enact that no act done under the fear even of instant
death should be an offence. It would, a fortiori , be absurd to enact that no act
under the fear of any other evil should be an offence.

“ There are, as we have said, cases in which it would be useless cruelty to
punish acts done under the fear of death, or even of evils less than death. But it
appears* to us impossible precisely to define those cases. We have, therefore, left
them to the Government, \vhich, in the exercise of its clemency, will doubtless be
guided in a great measure by the advice of the Courts" fs).

.Criminal intention. — See commentary on s. 80, supra .

Good faith. — See definition on s. 52, supra .

Choice of evil for the purpose of preventing or avoiding other harm to person or
property*: — This section is based on the doctrine of necessity, but no amount of
necessity will protect a person as an excuse under this section to commit a crime
unless the evil done is to prevent a greater evil. This principle was enunciated in
an English case where four chip-wrecked sailors in a boat were without food for
seven days and two of the four killed the third, a boy, and the three drank his
blood and that under the circumstances the accused sailors thought that unless
they fed upon the boy or one of themselves they would die of starvation. The
Jury found:" That assuming any necessity to kill any body, there was no greater
necessity for killing the boy than any of the other three men," and the prisoners
were convicted of murder. Lord Coleridge C. J. observed : " To preserve ones
life is generally speaking a duty, but it may be the plainest and the highest duty
to sacrifice it. War is full of instances in which it is a mp’s duty not to live, but
to die. The duty, in case of ship-wreck, of a captain to his crew, of the crew to the

passengers, of soldiers to women and children < these duties impose

on men the moral necessity, not of the preservation, but of the sacrifice of their
lives for others, from which in no country, least of all, it is to be hoped in England,
will men ever shrink, as indeed they have not shrunk. It is not correct, therefore,
to say that there is any absolute or unqualified necessity to preserve one’s life.
Necesse est ut earn non ut vivam t is a saying quoted by Lord Bacon himself with
high eulogy, in the very chapter on necessity to which so much reference has been
made. It is not needful to point out the awful danger of admitting the principle
which has been contended for. Who is to be the judge of this sort of necessity?
By what measure is the comparative value of lives to be measured ? Is it to be
strength, or intellect or what ? It is plain that the principle leaves to him who is to
profit by it to determine the necessity which will justify him in deliberately taking
another’s life to save his own.

" So spake the Fiend, and with necessity,

The tyrant’s plea, excused his devilish deeds.

" In this case the weakest, the youngest, the most unresisting was chosen. Was
it more necessary to kill him than one of the grown-up men ? The answer must be
4 No.’ It is not suggested that in this particular case the deeds were ‘devilish* but
it is quite plain that such a principle once admitted might be made the legal cloak
ior unbridled passion and atrocious crime. It must not be supposed that in
refusing to admit temptation to be an excuse for crime it is forgotten how terrible
the temptation was ; how awful the suffering ; how hard in such trials to keep
the judgment straight and the conduct pure. We are often compelled to keep up
standards we cannot reach ourselves, and to lay down rules which we could not

(s Y Note B.

112

THE INDIAN PENAL CODE

[CHAP. IV

ourselves satisfy. But a man has no right to declare temptation to be an excuse,
though he might himself have yielded to it, or allow compensation for the criminal
to change or weaken in any manner the legal definition of the crime' 9 (t). The
Bombay High Court in an earlier case, where a person placed poison in his toddy
pots, knowing that if taken by a human being, it would cause injury, but with the
intention of thereby detecting an unknown thief who was in the habit of stealing
the toddy from his pots, and the toddy was drunk by and caused injury to some
soldiers who purchased it from an unknown vendor, held , that he was rightly
convicted under section 328, and that this section did not apply (u). When
a soldier, who was on duty at a fire and was ordered to keep off all persopg not in
uniform in the vicinity, kicked a chief constable who was not in uniform and
was unknown to the soldier, held , the kick was justified for the purpose of
preventing much greater harm under this section (v).

82. Nothing is an offence which is done by a child under
, .... . seven years of age.

Act of a child under J % *

seven years of age.

Analogous law : — Ss. 82 and 83 deal with the crimes committed by infants
and the law is almost identical as it is in England and Scotland in case of felonies,
but under the Penal Code, a child under seven years is absolutely incapable of
committing a crime, whereas a child above twelve years is held liable for crime.
According to English law an infant between the age of seven and fourteen years
is presumed to be doli tncapa.

According to Blackstone : “ Infants under the age of discretion ought not t;>
be punished by any criminal prosecution whatever*’ (w).

A child below 7 years cannot distinguish right from wrong. If the accused
were a child under seven years of age, the proof cf that fact would be ipso facto an
answer to the prosecution (x). Where a child under seven years of age had stolen
a piece of wood and was taken into custody while in the act of stealing, held ,
that he could not be convicted of felony. Erie, C. J., said in that case that
an infant under seven years of age could not incur the guilt of felony (y).

The exemption under this section in favour of infants below 7 years does not
extend to special or local law fz).

Whether capital sentence can be passed on a youth : — Beyond the provi-
sions of Ss. 82 and 83, the Penal Code does not say anything about there being
any age limit for the capital sentence ; and in a case where the murder has been
deliberately planned and is essentially of a cold-blooded and contemptible nature,
whatever the age of the accused might be, death sentence would be appropriate
provided the case does not come under s. 22 of the Madras Children Act VI of
1920 fa).

83.

Act of a child above
seven and under twelve
of immature under-
standing.

Nothing is an offence which is done by a child above
seven years of age and under twelve, who
has not attained sufficient maturity of under-
standing to judge of the nature and con-
sequences of his conduct on that occasion.

(t) Dudley &- Stephens, (1884) 14 Q. B. D. 273, (287, 288).

(u) Dhania Daji, (1868) 5 B. H. C. R. (Cr. C.) 69.

(v) Boston Valad Futtc-Khan, (1892) 17 B. 626 (628).

(w) Hawk, P C. 2.

(x) Lukhini Agrodani, (1874) 22 W. R. (Cr.) 27.

(y) Marsh V. Loader, (1863) 14 C. B. (N. S.) 636.

(z) Vide s. 42 ante.

■v (a) Kolanda Nayakkan, (1930) M. W N. 681 ; Prodyot Kuntar Bhetacherjee, (1902)
33 Cr. L. J. 837.

SEC. 83]

GENERAL EXCEPTIONS

113

This section differs from the English law in this that the age of mature
understanding prescribed herein is ‘ twelve years * whereas the English law has
fixed it to be * fourteen years.* Under English law “ an infant shall be prima facie
deemed to be doli incapa and to be unacquainted with guilt ; yet the presumption
will diminish with the advance of the offender’s years and will depend upon the
particular facts and circumstances of the case. The evidence of malice, however,
which is to supply age, should be clear and strong beyond all doubt and contra*
diction” (b).

According to English la>y an infant between the age of seven and fourteen
years is presumed to be doli incapa . If a child more than seven and under fourteen
years of age is indicted for felony, it will be left to the jury to say whether the offence
was committed by "the prisoner, and if so, whether at the time of the offence
the prisoner had a guilty knowledge that he was doing wrong (c).

” With reference to the precocity of children in the East the rule of the Penal
Code, which fixes the age of twelve as the period after which the plea of
immaturity of understanding shall not be allowed, appears to be proper” (d).

Sufficient maturity of understanding : — The Commissioners in their

first report with reference to this section say: ” It would seem that

maturity of understanding is to be presumed in case of such a child unless the nega-
tive be proved by the defence” (e). The accused, who was about ten years of age,
slept with her mother-in-law the night before the murder, and her husband was
found mortally wounded in the early hours of the morning and she hid herself in the
field and was not found until afternoon. It was held that she was doli incapa and
the High Court convicted her of murder and sentenced her to transportation for
life but forwarded the case to the Lieutenant-Governor recommending that he
would reduce the sentence to imprisonment for seven years and keep her in a re-
formatory (f).

* to judge of the nature and consequences of his conduct 9 : — The sole
question that arises under this section is whether the accused has attained suffi-
cient maturity of understanding tc judge of the nature and consequences of his
act (g). Whejfe a child of 9 yeais of age stole a necklace valued at Rs. 2-8 from
another boy. and immediately afterwards pledged it, or sold it to the accused for
5 annas, the child was discharged under this section, but the accused was convicted;
it was held that the accused though under twelve years of age had attained a sufficient
maturity of understanding to judge of the nature and consequences of his conduct
and that therefore th£re was a theft and the child was rightly convicted (h).
Where the accused, a girl often years, picked up the button belonging to her master
and was convicted of theft, the High Court set aside the conviction holding that
there was no finding by the magistrate that the accused had attained sufficient
maturity of understanding to judge of the nature and consequences of her act (i).
Where a child of ten years married again during the life-time of her husband and
it appeared that the marriage had been negotiated and caused to be performed by
her mother, it was held that the child could not be convicted of bigamy as she
was found not to have attained sufficient maturity of understanding to judge of the

(b) Russel on Crimes, 5th Ed., Vol. I, 109 ; Stephen's Digest, Cr. L. Art. 26.

(c) Elixabethowen , (1830) 4 C. & P. 236.

(d) First Report, s. 117.

? (e) First Report, s. 117 at p, 120. See Lukhini A gradani, (187 4)22 W.1R. \Cr.) 27, 28*

t (f) Mosamat Aimona , (1864) 1 W. R. (Cr.) 43.

(g) Mukimuddin , (1899) 27 C. 133.

(h) Begarayi Krishna, (1883) 6 M. 373.

(i) Marimathu, 5 M. L. T. 296 ; 11 I. C. 807, following Mukimuddin , (1900) 27 C.

114

THE INDIAN PENAL CODE

[CHAP. IV

nature and consequences of her conduct on the occasion of her marriage and the
conviction was accordingly set aside (j).

In England a child who at the time of the commission of the offence of rape
is under 14 years cannot be convicted of an assault with intent to commit rape,
and if he is under that age, evidence is inadmissible to show his physical
incapacity (k). Lord Coleridge, C. J., says : “There is a presumptio juris et de
jure and judges have time after time refused to receive evidence to show
that a particular prisoner was in fact capable of committing the offence “ (I). A
boy under fourteen cannot be convicted of an assault with intent to commit
rape (m), or of feloniously carnally knowing and abhsing a girl of ten years of age
even though it was proved that he had attained full state of puberty (n).
This presumption of English law has no application under the Indian Penal
Code fo).

Special or local law : — A minor who is entitled to the benefit of s. 82 or
s. 83 of the Code does not commit an offence when he is guilty of any of the acts
or omissions referred to inSs. 126 to 129 of the Indian Railways Act. It is s. 130
of the Railways Act which by excluding the operation of these exceptions creates
the offence (p).

84 . Nothing is an offence which is done by a person who,
at the time of doing it, by reason of un-
unsound f mind ers011 ° f soundness of mind, is incapable of knowing
the nature of the act, or that he is doing
what is either wrong or contrary to law*

While the last two sections deal with deficiency in will due to infancy, this
section deals with a deficiency of will due to defective intellect. As Blackstone
observed : “The second case of a deficiency in will, which excuses from the guilt
of crimes, arises also from a defective or vitiated understanding, viz in an idiot
or lunatic for the rule of the law as to the latter which may easily be adopted also
to the former, is that 4 fur iosus furore solum punitur ’ fa mad man is punished by
his madness).’*

Aft *

Unsoundness of mind : — The English law as to what constitutes a defence
of insanity is what is laid down in McNaughtens case as follows ; — “The jury
ought to be told in all cases that every man is presumed to be sane and to possess
a sufficient degree of reason to be responsible for his crimes, until the contrary be
proved to their satisfaction ; and that to establish a defence on the ground of in-
sanity, it must be clearly proved that, at the time of the committing of the act, the
party accused was labouring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act ; or, if he did know it, that
he did not know he was doing what was wrong. The mode of r putting the latter
part of the question to the jury on these occasions has generally been, whether the
accused, at the time of doing the act, knew the difference between right and wrong ;
which mode, though rarely if ever leading to any mistake with the jury, is not, as we
conceive,' so accurate when put generally and in the abstract, as when put as to
the party’s knowledge of right and wrong in respect to the very act with which

(j) Godi, (1806) Ratanlal unreported Cr. C. 876.

(k) Henry Philips, (1830) 8 C. Sc. I J . 736.

(l) Groombridge, 7 C. Sc P. 582. ^

(m) Eldershaw, (1828) 3 C. & P. 396. '

(n) Jordan, (1839) 9 C. Sc P. 118.

(o) Poras Ram Dube, (1915) 37 A. 187.

(p) Dhondya Dudhya, (1919) 43 B. 888 (889) : 21 Bom. L. R. 768.

SEC. 84]

GENERAL EXCEPTIONS

115

he is charged. If the question were to be put as to the knowledge of the accused
solely and exclusively with reference to the law of the land, it might tend to confound
the jury, by inducing them to believe that an actual knowledge of the law of the
land was essential in order to lead to a conviction, whereas the law is administered
upon the principle that every one must be taken conclusively to know it, without
proof that he does not know it. If the accused was conscious that the act was one
which he ought not to do, and if that act was, at the same time, contrary to the law
of the land, he is punishable ; and the usual course, therefore, has been to leave the
question to the jury, whether the party accused had a sufficient degree of reason
to know that he was doing an act that was wrong ; and this course, we think, is
correct, accompanied with such observations and explanations as the circumstances
each particular case may require” fq). Maule, J., held in another case that to
entitle a person to be acquitted on the ground of insanity he must, at the time
of committing the offence, have been so insane that he did not know right from
wrong (r).

The Penal Code contemplates an incapacity (I) to know the nature of the act,
and (2) to know that the accused is doing something wrong or contrary to law
as grounds of exemption from criminal responsibility and the Indian law regard-
ing plea of insanity as a defence is almost the same as was laid down in Me Naugh -
tens case. The Bombay High Court has held that the policy of the law is to con-
trol not only the sane, but so far as is possible also the insane. It is not, therefore,
every person mentally diseased, who, ipso facto , is exempted from criminal respon-
sibility. Such exemption is allowed only where the insane person ” is incapable
of knowing the nature of the act, or that he is doing what is contrary to law.”
This section lays down the legal test of responsibility in cases of unsoundness of
mind. It is by this test as distinguished from the medical test, that the criminality
of an act is to be determined fs).

Elements of unsoundness of mind : — A case can be brought within s. 84,
only if it is proved, that (1) at the time of committing the offence, (2) the accused
was labouring under a defect of reason, (3) which has been caused by unsoundness
of mind, (4) such as had rendered him incapable of knowing the nature of the act
or that he was doing what was either wrong or contrary to law (t). In England
as Sir James Stephen pointed out 4 unsoundness of mind * as used in this
section has been treated as equivalent to 4 insanity ’ and the juries do not
trouble about refined reasonings. But the Calcutta High Court has held that
the plea of insanity as a defence must be sought for in the sections of the
Indian Penal Code alone. A prisoner who claims exemption on the ground of
unsoundness of mind must show that ‘ 4 at the time of doing the act, he was by
reason of unsoundness of mind incapable of knowing the nature of the act, or
that he was doing what was either wrong or contrary to law ” (u). The English
authorities before McNaughten s case used terms either misleading or vague.
Hale says : ” Doubtless most persons that are felons of themselves and

others are under a degree of partial insanity when they commit these
offences ; it is very difficult to define the invisible line that divides
perfect and partial insanity, but it must rest upon circumstances duly to
be weighed and considered both by the Judge and Jury lest on the
one side there be a kind of inhumanity towards the defects of human

* (q) Reg. V. McNaughten , (1843) 4 St. Tr. (N. S.) 847 ; 10 Cl. & F. 200, see also
(Tf/ord, (1831) 6 C. & P. 168.

■/ (r) Higginson , l C. & K. 129.

(s) Lakshman Dagdu , (1886) 10 B. 612.

(t) Tota Ram , (1927) 8 L. 684, following McNaughten' sense, (1843) R. R. 85.

(u) Rasai Mia, (1894) 22 C. 817; Kazi Bazlar Rahman, (1928) 48 C. L. J. 307; 33

116

THE INDIAN PENAL CODE

[CHAP. IV

reason, or on the other side, too . great an indulgence given to great
crimes*’ (v). Hawkins extends exemption to “ those who are under a natural
disability of distinguishing between good and evil “ (w). This test of a capacity
to distinguish between moral good and evil appears to have been followed by
Trucy, J. t in his charge to the Jury in Reg . V. Arnold (x). In law insanity is under-
stood to mean a condition in which there is no individual responsibility either
from the existence of delusions or from incapacity to differentiate between right
and wrong. Insane persons may be divided into four kinds (i) a lunatic ;
(ii) an idiot ; (iii) one non compos mentis (not of sound mind) by sickness ;
(iv) or by drink (y).

In Sher Sing's case (z), it was held that the accused was guilty ; he was at the
time when he committed ihe act in a highly excited and unbalanced condition
yet he was conscious that what he was doing was wrong and a crime. The medical
and legal standards of sanity are not identical. From the legal point of view a man
must be held to be sane so long as he is able to distinguish between right and wrong,
that the offence he is committing is a wrong thing to do, so long as he has a guilty
mind. From the medical point of view it is probably correct to say that every
man at the time when he commits a murder is insane, i.e., he is not in a sound
healthy normal condition ( 7 ). If a person is of unsound mind, he is to be judged
by the ordinary rules in regard to insanity, no matter whether the insanity arose
from disease of the brain or from persistent indulgence in intoxicating drugs or
liquor (a). “It is only * unsoundness of mind * which naturally impairs the cog-
nitive faculties of the mind that can form a ground of exemption from criminal
responsibility, the nature and the extent of the unsoundness of mind required
being such as would make the offender 4 incapable of knowing the nature of the
act, or that he is doing what is wrong or contrary to law.* For instance, a person
strikes another, and in consequence of an insane delusion that he is saving him
from sin and sending him to heaven. Here he is incapable of knowing by reason
of insanity that he is doing what is morally wrong or he may, under insane delu-
sions, believe an innocent man whom he kills to be a man that was going to take
his life : in which case, by reason of his insane delusion, he is incapable of knowing
that he is doing what is contrary to the law of the land “ fb), but a person whose
cognitive faculties are not so impaired as to make it impossible for him to know
the nature of his act or that he was doing what was wrong or contrary to law is
not exempted from criminal responsibility (c). Test of insanity is to ask, in the
circumstances, whether the man would have committed the act if a police-man
would have been at his elbow (d).

Insane delusion : — If a person, under an insane delusion as to the existing
facts, commits an offence in consequence thereof, is he thereby excused? This
was the 4th question for determination in the well-known case of McNaughten
and the “answer to this question must, of course, depend on the nature of the
delusion ; but making the same assumption as we did before, that he labours
under such partial delusion only, and is not in other respects insane, we think he
must be considered in the same situation as to responsibility as if the facts with
respect to which the delusion exists were real. For example, if, under the influence

(v) 1 Hale P. C. 30.

(w) 1 Hawk P. C. 1 .

(x) 19 St. Tr. p. 947.

(y) Co. Lit. 247 ; B every* s case, 4 Coke 124.

(z) Sher Singh , (1922) 25 Cr. L. J. 395 ; 77 I. C. 443.

(a) Harka, (1906) 26 A. W. N. 193.

(b) Kader Nasyr Shah, (1896) 23 C. 604, 607. (Leading case). See also Kasai
Miah, (1894) 22 C. 817

(c) Ram Sunday Das , (1919) 23 C. W. N. 621 ; 20 C. L. J. 209.

(d) Karma Urang , (1027) 32 C. W. N. 342 : A. I. R. (1928) C. 239,

SEC. 84]

GENERAL EXCEPTIONS

117

of his delusion, he supposes another man to be in the act of attempting to take
away his life, and he kills that man, as he supposes, in self-defence, he would be
exempt from punishment. If his delusion was that the deceased has inflicted a
serious injury to his character and fortune, and he killed him in revenge for such
supposed injury, he would be liable to punishment " (e). It is a case of delusion
where the deceased had arranged a criminal meeting between the wife of the ac-
cused and another man which the accused was under the impression had taken
place (f). So also Martin, B., put, as an instance of a delusion, the case of a man
who imagined himself to be a king administering justice : “ If such a man were
to kill another under the supposition that he was exercising his prerogative as a
king, and that he was called upon to execute the other as a criminal, he would
not be responsible ’* (g). In another case, where a prisoner set up a plea that he
acted under a delusion that was held to be no defence when it was found that at
the time he committed the offence he knew that he was doing a wrong act. Bram-
well, B., said in that case, “If an influence be so powerful as to be termed irresistible,
so much the more reason is there why we should not withdraw any of the safe-
guards tending to counteract it. There are three powerful restraints existing,
all tending to the assistance of the person who is suffering under such an influence,
the restraint of religion, the restraint of conscience and the restraint of law. But
if the influence itself bt held a legal excuse rendering the crime dispunishable,
you at once withdraw a most powerful restraint — that forbidding and punishing
its perpetration ** (h). Where a person is in a state of mind in which she is liable
to fits of madness, it is for the jury to decide whether the act was done during
such a fit, although there is nothing hi fore or after the act to show fits of madness
in a case where it was found upon evidence that there was design and malice (i).
In a case where a married woman, having killed her husband immediately after the
apparent recovery of a disease (the result of child-birth) which caused loss of
blood and thereby affected the brain, and acting under an insane delusion,
committed homicide, although it was established that the circumstances would
not lead to it, Earle, C. J., held that this was evidence from which a jury might
properly find that she was not in such a state of mind at the time of the act as to
know its nature or be accountable for it (j). The Patna High Court by a Full
Bench has held that a person, who is otherwise sane but labouring under the influ-
ence of an insane delusion, commits an act of revenge, he is liable to punishment
according to the nature of the crime committed by him, if at the time of doing the
act, he understood that he was committing a wrong and unlawful act (k).

Murder by Ganja smoker : — Where the accused, who was a habitual
ganja- smoker, was charged with the murder of his wife and infant son, and in his
confession he stated that he had killed his wife, because she quarrelled with
him, held, that unless the accused’s habit of smoking ganja had induced in him

such a diseased state of mind as to make him incapable of knowing the nature

of his act or its criminality, s. 84 did not apply in his favour (1). The onus
is on such gan/a-smoker to plead insanity (m). So also in another case of
murder committed suddenly and without an/ provocation there was some evi-
dence to show that the accused was a habitual ganja- smoker, but there was no

(c) McNaughten, (1843) 10 Cl & F. 204. referred to in Tola Ram, (1927) 8 L.
(584 ; Bahadur, 0 L. 371.

(f) Ghatu Paramanik, (1901) 28 C. 613.

• (g) Townlcy , (1863) 3 F. & F. 839.

(h) Reg. V. Haynes, (1859) 1 F. & F. 660.

(i) Reg . V. Leigh , (1863) 4 F. & F. 915.

(j) Law . (1860) 2 F. & F. 836.

(k) Ghinna Uraon, 3 Pat. L. J. 291 : (1918) Pat. Supp. C. W. N. 57 ; 19 Cr. L. J.
135 ; 43 I. C. 423.

(l) Sakharavn , (1890) 14 B. 564.

(m ) • Public Prosecutor V. Budipati , (1027) 55 M. L. J. 228.

118

THE INDIAN PENAL CODE

[CHAP. IV

evidence of j any motive for the crime. The accused did not take any plea of
unsoundness of mind under this section, still that was held to be a defence.
The case however fell under $. 86 and the capital sentence wascommuted and
the matter was reported to the Local Government for consideration under
s. 401, Cr. P. Code (n).

Rolfe, B. said : ** It would be a most dangerous doctrine to lay down that
because a man committed a desperate offence with the chance of instant death
and the certainty of future punishment before jhim, he was therefore insane, as
if the perpetration of crimes was to be excused by their very atrocity*’ (o).

Insanity *due to drunkenness : — In a case where the accused committed
rape on a girl of thirteen and in doing the act, placed his hand upon her mouth,
and his thumb upon her throat and thereby caused death by suffocation, and the
sole defence was a plea of drunkenness, held , that drunkenness was no defence
unless it could be established that the accused at the time of committing rape was
so drunk that he was incapable of forming the intent to commit it (which was not
alleged) inasmuch as the death resulted from the succession of acts, the rape
and the act of violence causing suffocation, which could not be regarded indepen-
dently of each other ; and that the prisoner was guilty of murder (p). Where
voluntary drunkenness causes a disease which produces such an incapacity to
know the nature of the act, or that it is wrong or contrary to law, then s. 84 applies
although the disease may be of a temporary nature (q). A person, who is inflamed
with alcohol on receiving a hostile blow on the head lost self-control and com-
mitted murder, cannot take the plea of 4 unsoundness of mind * within this
section (r).

Voluntary drunkenness is no excuse for the crime and involuntary drunken-
ness will afford an exemption only if the accused was so drunk that he did not
know the nature of the act or that it was wrong or contrary to law but still the
fact of drunkenness may alter the nature of the offence in cases where the presence
of some particular knowledge or intention is the essence of the crime (s).

Delirium tremens : — Drunkenness is no excuse, but delirium tremens
caused by drinking, and differing from drunkenness, even for a time, as to render
a person incapable of distinguishing right from wrong, relieves him from criminal
responsibility (t).

Homicidal mania: — Taylor, in his Medical Jurisprudence, says: — “ Homicidal
mania or monomania is commonly defined to be a state of partial insanity, accom-
panied by an impulse to the perpetration of murder, from which it i 9 also some-
times called impulsive or paroxysmal mania. There may or may not be evidence
of intellectual aberration, but the main feature of the disorder is the existence of
a destructive impulse which, like a delusion, cannot be controlled by the patient.
This impulse, thus dominating over all other feelings, leads a person to destroy
those to whom he is most fondly attached, or any one who may be involved in his
delusion. It sometimes seizes a man all of a sudden, sometimes it is long felt
but concealed and restrained : there may be merely signs of depression and
melancholy, low spirits and loss of appetite, as well as eccentric or wayward habits.

(n) Amrita alias Tincori Dhopa, (1922) 27 C. W. N. 290 ; 39 C. L. J. 34 : A. I R.
(1923) Cal. 460.

(o) Reg. V. Stokes, (1848) 3. C. & K 185, (188).

(p) Director of Public Prosecutions V. Beard , (1920) A. C. 479 — leading caseV

followed in Muthu Goundan, (1931) M. W. N. 113. ^

(q) Bheleka Aham, (1902) 29 C. 493.

(r) Maung Gyi, (1912) 7 L, B. R. 13 ; 14 Cr. L. J. 427 ; 20 I. C. 411.

(s) War is AH, 1911) N. L. R. 180 ; 13 Cr. L. J. 167 ; 13 I. C, 919.

(t) Davis , (1881) 14 Cox. C. C. 56$.

SEC. 84]

GENERAL EXCEPTIONS

119

but nothing to lead to a suspicion of the fearful contention which may be going
on within the mind. As in suicidal mania, many of those who are in habits of
daily intercourse with the patients have been first astounded by the act of murder,
and then onjy for the first time led to conjecture that certain peculiarities of lan-
guage or conduct scarcely noticed at the time, must have been symptoms of in-
sanity” (u).

When a young man of weak intellect without any adequate motive killed his
uncle by hacking him with a sword after which he shouted, ‘ victory to Kali/ and
endeavoured to kill others including his own father, and subsequently attempted
to commit suicide, held , that the facts justified a finding that the prisoner was suffer-
ing from a fit of melancholic homicidal mania and was by reason of unsoundness
of mind protected under this section and he was therefore not guilty of murder (v).
The Madras High Court has held that homicidal maniacs need not have a
motive to perpetrate a crime and in fact the act itself is the chief evidence of in-
sanity (w).

Burden of proof : — As the plea of insanity is an exception when such a
defence is set up it must be proved affirmatively by the defence that the prisoner
is insane before he can ask the jury to acquit him ; if that fact be doubtful and
the commission of the crime charged in the indictment is proved ' it is their
duty to convict (x). The onus of proving circumstances which give the benefit
of a general exception to an accused person lies on him and in the absence of
evidence the presumption is against the accused. If it is apparent from the evid-
ence on the record, v/hether produced by the prosecution or by the defence,
that a general exception would apply, then the presumption is removed and it
is not open to the Court to consider whether the evidence proves to its satis-
faction that the accused comes within the exception (y). The burden of proving
the defence under this section lies on the accused (z). But it has been held
that a mental derangement, a year previous to the act being committed,
combined with peculiar circumstances, is sufficient to shift the burden (a).
Where the accused cut his wife’s throat without any rational motive and was cap-
tured at once without any attempt on his part to escape or offer resistance and
the evidence indicated that he was suffering from mental derangement and
also that he entertained delusions as to dangers which threatened his wife, held ,
that the facts proved unsoundness of mind which prevented the accused from
knowing the nature of the act and that the accused was protected under this
section (b).

Proof of insanity : — Evidence of experts is relevant in matters of insanity
and the evidence of the Civil Surgeon is to be taken in this matter under s. 464
of the Code of Criminal Procedure. It has been held that, if a medical witness
might give an expert evidence relating to what he heard about the sanity or
otherwise of the prisoner, that is irrelevant (c). The medical witness may be asked
whether certain facts, appearances and conduct are in his opinion symptoms of

(u) Taylor, 5th Ed., Vol. I, 806-807.

(v) Shibo Koeri , (1906) 10 C. W. N. 725.

(w) In re Vaithinatha Pillai, (1912) 14 Cr. L. J. 465; (1912) M. W. N. 825; 20
I. C. 721.

(x) Per Rolfe, B. in Stokes, (1848) 3 C. & K. 185 (188); Kazi Bazler Rakaman,
(1928) 48 C. L. J. 307 ; 33 C. W N. 136 ; A. I. R. (1929) C. 1.

• (y) Mussamat Anandi, (1923) 45 A. 329; 24 Cr. L. J. 225; 71 L. C. 989;

Chandra Lai, (1923) 21 A. L. J. 770 ; 25 Cr. L. J. 349 ; 77 I. C, 230 ; A. I. R. (1924)
All. 186 (2).

(z) Niaz AH, (1904) A. W. N. 2.

(a) Arzao Bebee . (1865) 2 W. R. (Cr.) 33.

(b) Di ll Gazi , (1907) 34 C. 686.

(c) Doe V. Bainbridge, (1849) 4 Cox. C. C. 454, see also 5th question and answer
in MeNaughteris case, (1843) 10 Cl. F. 20.

120

THE INDIAN PENAL CODE

[CHAP. IV

insanity fd), though he cannot be asked whether in his opinion the evidence
establishes a case of insanity for that is the subject matter for decision by the judg?
and the jury (e). He may give his opinion as to the state of the prisoner’s mind
but not as to his responsibility which is again the matter for consideration for the
jury under the direction of the judge (f). Where, for instance, a person is in a
state of mind in which she is liable to fits of madness, it is for the jury to consider
whether the act done was committed while the prisoner was under such a fit
although there is nothing before or after the act to indicate it (g). In a case where
a plea of insanity is set up, the prisoner’s counsel has no right to cite from medical
works the opinion of experts in his address to the jury (h). “ A mere doubt as
to his sanity is not sufficient. The jury must be satisfied by the prisoner, on whom
the onus lies, that he was insane ” (i). The issue of insanity must be tried before
the trial of the accused (j).

Under this section, a person is exempt from criminal liability only, if, by reason
of unsoundness of mind, he is incapable of knowing the nature of the act done by
him or that he is doing what is either wrong or contrary to law. It must be shown
that the cognitive faculties of the person had been impaired by the unsoundness
of his mind (k). Proof of facts such as indicates an unsound state of mind is quite
sufficient (1).

‘at the time of doing it incapable of knowing the nature of

the act*: — The evidence that the prisoner showed symptoms of insanity prior
to the commission of the offence is relevant, though he may be perfectly sane at
the time of the trial, for the question for determination is, whether at the time of
the commission of the offence the prisoner was insane (m), not his state of mind
at the time of trial, though that is relevant for the purpose of procedure fn). A
plea of insanity at the time of trial will not avail the accused (o).

If the accused pleads insanity, evidence relating to such insanity should refer
to the time when the offence was committed (p). On a plea of temporary insanity
raised, it appeared that the accused was at the time of the commission of the
offences, suffering from fever, his temperature was only about 100 degrees, and
he was not delirious, held , that the plea could not be supported (q).

Where the accused, who was proved to have been insane for months before
the date of occurrence, stabbed his wife in 2 or 3 places as a result of which she died
5 days afterwards, the Madras High Court held that he was not protected by this
section as it was not proved that his mind was so affected as to prevent him from
knowing the nature and consequences of his act (r). The onus is on the accused
to prove that his unsoundness of mind was such that he was incapable of ‘ knowing

(d) John Wright, (1825) R. & R. 456 ; Searle, (1831) 1 M. & R. 75.

(e) Searle, (1831) 1 M. & R. 75.

(f) Richards, (1858) 1 F. & F. 87.

(g) Ibid •

(h) Crouch, (1844) J Cox. 94.

(i) Per Rolfe, B., in Stokes , (1848) 3 C. & K. 185, 188.

(j) Bahadur, (1927) 9 L. 371 ; 20 Cr. L. J. 204 : A. I. R. (1928) L. 706.

(k) Ramzan, (1917) 1\ R. No. 20 of 1918 : 20 Cr. L. J. 1 : 48 1. C. 492, where the
leading case of Kadar Nasyer Shah, (1896) 23 C. 604 was followed. See Dhani Bux .
(1916) 9 S. L. R. 171 ; 32 1. C. 671 ; 17 Cr. I,. J. 79.

(l) Kazi Bazlar Rahman, (1928) 48 C. L. J. 307 : 33 C. VV. N. 136.

(m) Pursoram Doss, (1867) 7 \V. R. (Cr.) 42.

(n) Ss. 464, 465 and 466, Criminal Procedure Code.

(o) Nata Ram , (1866) P. R. No. 66 of 1866.

(p) Golla China Venkadu, 38 M. 550 : 15 Cr. L. J. 161 : 22 1. C. 737 : John Dowlat
Moon, (1927) 29 Cr. L. J. 398 : A. I. R. (1928) P. 363.

(q) Swgadai Vennan, (1927) 53 M. L. J. 101.

(r) In re. Muthusami, (1918) 26 M. L. T. 361 : 10 L. W. 377 : (1919) M.W.N. 796 :
53 I. C. 828 : 20 Cr. L. J. 828.

SEC. 85]

GENERAL EXCEPTIONS

121

the nature of the act or of knowing that he was doing what was either wrong or con-
trary to law * which words have nothing to do with the appreciation of moral
quality of the act (s).

Where it is proved that immediately before the commission of an offence
under s. 307 the accused was in one of his mad fits, that he was under a delusion
that the deceased was keeping his sisters and that he desisted from the attack when
he was asked to do so and that the act was motiveless, held, that the accused was
incapable of knowing the nature of the act or that it was wrong or contrary to
law (t). Where the accused was at the time when he committed the act in a highly
excited and unbalanced condition, yet he was conscious that what he was doing
was wrong and a crime, he must be held guilty. The medical and legal standards
of sanity are not identical (u).

Presumption s — The law presumes every person at the age of discretion
to be sane unless the contrary is proved ; and even a lunatic has lucid intervals,
the law presumes the offence of such person to have been committed in a lucid
interval, unless it appears to have been committed during derangement (v). The
law recognises nothing but incapacity to realise the nature of the act and presumes
that where a man’s mind or his faculties of ratiocination are sufficiently clear to
apprehend what he is doing, he must always be presumed to intend the consequences
of the action he takes (w).

Criminal responsibility of deaf and mute accused ' There is no
provision in the Indian Penal Code protecting such persons. In order to claim
exemption they must come under this section because want of speech and hearing
do not necessarily imply mental deficiency (x).

Procedure See Chapter XXXIV of the Code of Criminal Procedure.

85. Nothing is an offence which is done by a person who,
at the time of doing it, is, by reason of intoxi-
cation, incapable of knowing the nature of
the act, or that he is doing what i< either
wrong, or contrary to law : provided that the
thing which intoxicated him was administered to him without
his knowledge or against his will.

Act of a person in-
capable of judgment by
reason of intoxication
caused against his will.

Drunkenness when a good defence This section is in accordance with
the principles of English law which lays down that drunkenness if it is voluntary
is no excuse. But at the same time drunkenness is neither an aggravation (y),
nor an excuse for the crime (z). Drunkenness is an excuse only when it is a
disease (a). Unless drunkenness amounts to unsoundness of mind so as to enable
insanity to be pleaded by way of defence, or the defence of drunkenness is such

(s) Muhammad Hussain, (1912) 14 Cr. L. J. 81 : 18 I. C. 641 (Oudli) : see Kazi
Bazlar Rahman, (1928) 48 C. L. J. 807 : 83 C. W. N. 136. See Bhagwati Prasad

(1923) 24 Cr. L. J. 741 : 74 I. C. 69 (Oudh).

(t) Nga Pyan , (1911) 4 Bur. L. T. 267 : 13 Cr. L. J. 49 : 13 1. C. 385.

(u) Sher Singh, (1924) 25 Cr. L. J. 395 ; 77 I. C. 443.

(v) Balu, (1881) Ratanlal unreported Cr. C. 172 ; Sheodin, (1901) A. W. N. 132;
Nobin Chandra Banerjee, (1873) 20 W. R. (Cr.) 70.

(w) Manx Ram , (1926) 8 L. 114, where capital sentence was confirmed.

(x) Nga San Myin , (1910) 4 Bur. L. T. 150 ; 12 Cr. L. J. 386 ; 11 I. C. 250.

(y) Zoolfar Khan , (1871) 16 W. R. (Cr.) 36.

(z) Ramsahoy Bhur , (1864) W. R. (Gap. No. 24).
a> Bhelekar A ham, (1902) 29 C. 493.

THE INDIAN PENAL CODE

122

[CHAP. IV

as to establish incapacity in the accused to form the' intent necessary to constitute
the crime, drunkenness is neither a defence nor a palliation (b).

Coleridge, J., in a case told the jury that, “ drunkenness is ordinarily neither
a defence nor excuse for crime and where it is available as a partial answer to a
charge it rests on the prisoners to prove it, and it is not enough that he was excited
or rendered more irritable, unless the intoxication was such as to prevent him re-
straining himself from committing the act in question, or to take away from him
the power of forming any specific intention ” (c). So, Baron Alderson, J. said, " If
a man chooses to get drunk it is his own voluntary act : it is very different from
a madness which is not caused by any act of the person. That voluntary species
of madness which it is in a party's power to abstain from, he must answer for.
However, with regard to the intention, drunkenness may perhaps be adverted
to according to the nature of the instrument used. If a man uses a stick, you
would not infer a malicious intent so strongly against him, if drunk, when he
made an intemperate use of it, as you would, if he had used a different kind of
weapon ; but where a dangerous instrument is used, which if used, must produce
grievous bodily harm, drunkenness can have no effect on the consideration of
the malicious intent of the party ” (d).

Parke, B. said : If a man makes himself voluntarily drunk, that is no ex-
cuse for any crime he may commit whilst he is so ; he must take the consequence
of his own voluntary act ; or most crimes would otherwise be unpunished. But
drunkenness may be taken into consideration in cases where what the law deems
sufficient provocation has been given, because the question is, in such cases,
whether the fatal act is to be attributed to the passion of anger excited by the
previous provocation, and that passion is more easily excitable in a person when
in a state of intoxication than when he is sober " (e). Stephen, J. held: “ Drunk-
enness is no excuse but delirum tremens caused by drunkenness may be an excuse
if you think it produces such a state of mind as would otherwise relieve him from
responsibility " (f).

Under this section it is assumed that a man voluntarily drunk is presumed
to intend the natural or necessary consequences of his act and the intention of the
accused in many cases must be gathered from knowledge (g). As has been held
by the House of Lords in Director of Public Prosecutions V. Beard (h) evidence
of drunkenness falling short of a proved incapacity in the accused to form the
intent necessary to constitute the crime and merely establishing that his mind
was affected by drink, so that he more readily gave way to some violent passion
does not rebut the presumption that a man intends the natural consequences of
his acts (i).

For drunkenness to operate as a ground of exemption it is necessary that
the accused's mind should be so much affected by the drink that he must be
incapable of understanding what he was doing (j).

(b) Waryam Singh, (1926) 7 L. 141 : 27 P. L. R. 332 : A. I. R. (1926) L. 428.

(c) Monhhoit.se, (1847) 4 Cox. C. C. 65.

(d) Meakin, (1836) 7 C. & P. 297.

(e) Thomas, (1837) 7 C & P. 817.

(f) Davis, (1881) 14 Cox. C. C. 563. See also 1 Hale P. C. 32.

(g) Potu, (1908) 4 L. B. R. 306 : 9 Cr. L. J. 5.

(h) (1920) App. Ca. 47 9 f followed in Muthu Goundan , (1931) M. W. N. 113.

L 282* * (l923 * 7 L 50 : 27 P ’ L * R ‘ 294 : 27 Cl *' L ‘ ^ 630 : A ’ If R * (1926 *

(j) Nga Mya, 8 L. B. R. 306 : 8 Bur. L. T. 220 : 17 Cr. L. J. 49 : 32 I. C. 641
(F. B.) See also Nga Tun Baw. 6 L. B. R. 100 : 5 Bur. L T. 175 : 13 Cr. L, J. 864 :
17 I, C. 800. T

SEC. 86]

GENERAL EXCEPTIONS

123

86. In cases where an act done is not an offence unless
done with a particular knowledge or intent,
particular IS 8 or ? Person who does the act in a state of
knowledge committed intoxication shall be liable to be dealt with
cated nC wh ° 1S intoxl " as if he had the same knowledge as he would

have had if he had not been intoxicated,
unless the thing which intoxicated him was administered to
him without his knowledge or against his will.

This section does not lay down a rule different from that of the English law.
As Alderson, B. said : 44 If a man chooses to get drunk, it is his own voluntary
act ; it is very different from a madness which is not caused by any act of the
person ” fk). So Stephen, J., in his address to the Jury said : “ The general
rule as to intention is that a man intends the natural consequences of his act. . . .

It is almost trivial for me to observe that a man is not excused from crime

by reason of his drunkenness. If it were so, you might as well at once shut up
the criminal Courts, because drink is the occasion of a large proportion of the
crime which is committed, but although you cannot take drunkenness as an ex-
cuse for crime, yet when the crime is such that the intention of the party com-
mitting it is one of its constituent elements, you may look at the fact that a man
was in drink in considering whether he formed the intention necessary to con-
stitute the crime** (1). The Calcutta High Court in an early decision held, 44 Volun-
tary drunkenness does not, of course, palliate any offence, but it is generally taken
into account as throwing light on the question of intention ** fm). The Lahore
High Court in the case of Wyram Singh (n) has held that drunkenness is neither
a defence nor a palliation.

This section must be construed strictly. It provides that the intoxicated
person should be dealt with as if he had the same knowledge as he would have
had were he not intoxicated. It does not provide that he shall be dealt with as
if he had the same intent (o). This section lays down that in certain classes of
cases, the intoxicated person shall be liable to be dealt with as if he had not been
intoxicated ; but it does not provide that an intoxicated person shall be dealt
with as if he had the same intent. The second part of the section speaks of know-
ledge only and omits any reference to intent (p). Drunkenness makes no differ-
ence to the knowledge with which a man is credited, and if a man knew what the
natural consequences of his act were, he must be presumed to have intended to
cause them (q).

Although drunkenness does not excuse, it does not, in the eye of the law ,
make an offence the more heinous an act which if committed by a sober man, is an
offence, is equally an offence** if committed by one when drunk, if the intoxication
was voluntarily caused (r). But in some cases intoxication may be taken into
consideration in awarding punishment and the accused may be dealt with leniently .

Punishment : — Although s. 86 attributes to a drunken man the knowledge
of a sober man, when judging of his action it does not give him the same intention

(k) Meakin . 7 C & P. 297.

(l) Doherty , (1887) 16 Cox. C. C. 306, see al so Monkhouse, (1849) 4 Cox. C. C.
55.

(m) Per Glover, J , in Ram Sahay Bhur, (1864) W. R. (gap. No. 24).

(n) 7 L. 141, distinguishing Pal Singh's case , P. R. No. 27 of 1917.

(o) In re . Mundra Gaiaha , (1914) 38 M. 479 : 16 Cr. L. J. 627 : 30 I C. 451.

(p) Budipati Devasikamani , (1927) 55 M. L. J. 228 : A. I. R. (1928) Al. 196.

(q) Judagi Mullah , (1929) 8 P. 911 : A. I. R. (1930) P. 168.

(r) Zojlfar Khan, (1871) 16 W. R. (Cr ) 36.

124 THE INDIAN PENAL CODE [CHAP. IV

and therefore drunkenness affords a sufficient excuse for mitigation of the
offence (s).

87 . Nothing which is not intended to cause death, or
grievous hurt, and which is not known
no^known to^be 'tkeiy by the doer to be likely to cause death, or
to cause death or grievous hurt, is an offence by reason of
consent! * urt d ° ne by an y harm which it may cause, or be intended
by the doer to cause, to any person, above
eighteen years of age, who has given consent, whether express or
implied, to suffer that harm ; or by reason of any harm which it
may be known by the doer to be likely to cause to any such person

who has consented to take the risk or that harm.

*

Illustration .

A and Z agree to fence with each other for amusement. This agreement implies
the consent of each to suffer any harm which, in the course of such fencing, may be
caused without foul play; and if A , while playing fairly, hurts Z, A commits no
offence.

The Authors of the Code observe : “ We conceive the general rule to be that
nothing ought to be an offence by reason of any harm which it may cause to a
person of ripe age who, undeceived, has given a free and intelligent consent to
suffer that harm or to take the risk of that harm. The restrictions by which the
rule is limited affect only cases where human life is concerned. Both the general
rule and the restrictions may, we think, be easily vindicated

“The reason on which the general rule which we have mentioned rests is
this, that it is impossible to restrain men of mature age and sound understanding
from destroying their own property, their own health, their own comfort, with-
out restraining them from an infinite number of salutary or innocent actions.
It is by no means true that men always judge rightly of their own interest. But
it is true that, in the vast majority of cases, they judge better of their own interest
than any law-giver or any tribunal, which must necessarily proceed on general
principles, and which cannot have within its contemplation the circumstances
of particular cases and the tempers of particular individuals, can judge for them.
It is difficult to conceive any law which should be effectual to prevent men from
wasting their substance on the most chimerical speculations, and yet which should
not prevent the construction of such works as the Duke of Bridgewater’s canals.
It is difficult to conceive any law which should prevent a man from capriciously
destroying his property, and yet which should not prevent a philosopher, in a
course of chemical experiments, from dissolving a diamond, or an artist from
taking ancient pictures to pieces, as Sir Joshua Reynolds did, in order to learn the
secret of colouring. It is difficult to conceive any law which should prevent a
man from capriciously injuring his own health, and yet which should not prevent
an artisan from employing himself in callings which are useful and indeed neces-
sary to society, but which tend to impair the constitutions of those who follow
them, or a public-spirited physician from inoculating himself with the virus of a
dangerous disease. It is chiefly, we conceive, for this reason, that almost all Govern-
ments have thought it sufficient to restrain men from harming others, and have
left them at liberty to harm themselves. But though in general we would not
punish an act on account of any harm which it may cause to a person who had

(s Pal Singh , P. R. No. 27 of 1917 : P. \V. R. No. 35 of 1917 . 18 Cr. L. J. 868 :
41 , C. 080; Nga Ba Gyaw , (1910) 1 U. B. R. 105; 13Cr. L. J. 471 : 15 I. C.,311.

SEC. 87 ] GENERAL EXCEPTIONS 125

[consented to suffer that harm, we think that there are exceptions to this rule, and
that the case in which death is intentionally inflicted is an exception.

M It appears to us that the reasons which render it highly inexpedient to in-
flict punishment in ordinary cases of harm done by consent of the person harmed
do not exist here. The thing prohibited is not, like the destruction of property,
or like the mutilation of the person, a thing which is sometimes pernicious, some-
times innocent, sometimes highly useful. It is always, and under all circum-
stances, a thing which a wise law-giver would desire to prevent, if it were only for
the purpose of making human life more sacred to the multitude. We cannot pro-
hibit men from destroying the most valuable effects, or from disfiguring the person
of one who has given his unextorted and intelligent consent to such destruction
or disfiguration without prohibiting at the same time gainful speculations, in-
nocent luxuries, manly exercises, healing operations. But by prohibiting a man
from intentionally causing the death of another, we prohibit nothing which we
think it desirable to tolerate. It seems to us clear therefore that no consent
ought to be a justification of the intentional causing of death “ (t).

This section proceeds upon the principle of volenti non fit injuria (that to
which a man consents cannot be considered as an injury). This section and the
following sections upto s. 92 deal with cases where consent of the injured is set
up as a defence. This section deals with sports and games of skill when a man
may give his consent but it does not justify death or grievous hurt.

The English Law on the subject is to the same effect. As Bramwell, B., laid
down in a case where a football player caused the death of another football player
by what is known as “ charging " him and thereby rupturing his intestines as
follows : — “ No rules or practice of any game whatever can make that lawful

which is unlawful by the law of the land For instance, no person can by

agreement go out to fight with deadly weapons, doing by agreement what the law
says shall not be done, and thus shelter themselves from the consequences of their
acts " (u). In another case, Bramwell, B., held : “There is nothing unlawful in a
sporting exhibition unless the men fight on until they are so weak that a dangerous
fall is likely to be the result of the continuance of the game. Therefore, except
in the latter case, death caused by an injury received during a sparring match does
not amount to manslaughter M (v). But where upon the trial of an indictment
against the accused for unlawfully assembling together for the purpose of a prize
fight it was held that it was not illegal if it was a mere exhibition of skill in sparring
but if the accused were guilty of the offence of unlawfully assembling together
for the purpose of prize-fighting they cannot be excused (w). In East*s 4 Pleas of
the Crown ’ Vol. 1, p. 269, it is observed : “ It seems also that in cases of friendly
contests with weapons which though not of a deadly nature may yet breed danger,
there should be due warning given that each party may start upon equal terms ;
for if two were engaged to play at cudgels, and the one made a blow at the
other likely to hurt, before he was upon his guard, and without warning, and
death ensued, the want of due and friendly warning would cause such act to
amount to manslaughter, but not murder, because the intent was not malicious.
‘ But though the weapons be of a dangerous character, Jyet if they be not
directed by the person using them against each other, and so no danger to be
reasonably apprehended ; if death casually ensue, it is but misadventure. *

It has also been held that no amount of consent would protect a person who

(t) Note B.

(u) Bradshaw, (1878) 14 Cox. 83.

(v) Young, (1866) 10 Cox. 371.

(w) Orton, (1878) 14 Cox. 226.

126

THE INDIAN PENAL CODE

[ CHAP. IV

entered into a fencing match, however friendly, with naked swords (x). . Where
a prize-fight was held to be illegal, Give, J., observed: “The true view is, I
think, that a blow struck in anger, or which is likely or is intended to do corporal
hurt is an assault, but that a blow, struck in sport, and not likely, not intended to
cause bodily harm, is not an assault and that an assault being a breach of the peace
and unlawful, the consent of the person struck is immaterial " (y).

88. Nothing,

Act not intended to
cause death done by
consent in good faith
for person's benefit.

it is done in good
express or implied,
harm.

which is not intended to cause death, is an
offence by reason of any harm, which it
may cause, or be intended by the doer to
cause, or be known by the doer to be likely
to cause, to any person for whose benefit
faith, and who has given a consent, whether
to suffer that harm, or to take the risk of that

Illustration.

A, a surgeon, knowing that a particular operation is likely to cause the death
of Z, who suffers under a painful complaint, but not intending to cause Z ‘ s death, and
intending, in good faith, Z ' s benefit, performs that operation on Z , with Z’s consent.
A has committed no offence.

This section goes further than the last section inasmuch as under this sec-
tion any harm is sanctioned if it is for the benefit of the person to whom it is caused
if the harm is done in good faith and the person suffering consents to the same,
but under s. 87, any harm short of grievous hurt is excused. This section and
the next as also section 92 deal with surgical operations and liability of medical
practitioners. Section 92 should have followed section 89 and it deals with a
case of emergency which requires immediate assistance, and in which case if one
is to wait -Tor consent, serious consequences might follow.

The Law Commissioners with regard to this section remarked : “ This sec-
tion will not excuse dangerous operations performed by unqualified persons.
We apprehend that an unqualified and ignorant quack could hardly be excused,
for it is not to be conceived that such a one could obtain the free and intelligent
consent of any person to his performing upon him an operation dangerous to life
but by misrepresentation ; and such a one could hardly satisfy a Court of Justice
that he had undertaken the operation in good faith, for good faith must surely be
construed here to mean a conscientious belief that he had skill to perform the
operation and by it to benefit the party ; while the supposition is that he was un-
skilled and ignorant " (z).

The Authors of the Code observe ; — “ In general we have made no distinction
between cases in which a man causes an effect designedly, and cases in which He
causes it with a knowledge that he is likely to cause it. If, for example, he sets
fire to a house in a town at night, with no other object than that of facilitating a
theft, but being perfectly aware that he is likely to cause people to be burned in
their beds, and thus causes the loss of life, we punish him as a murderer. But
there is, as it appears to us, a class of cases in which it is absolutely necessary to
make a distinction. It is often the wisest thing that a man can do to expose his
life to great hazard. It is often the greatest service that can be rendered to him
to do w^At may very probably cause his death. He may labour under a cruel
and wasting malady which is certain to shorten his life, and which renders his

(x) I Hale, P. C. 473.

(y) Coney, (1882) 8 Q. B. 1). 534.

(z) First Report, s. 123.

SEC. 88]

GENERAL EXCEPTIONS

127

life, while it lasts, useless to others and a torment to himself. Suppose that under
these circumstances he, undeceived, gives his free and intelligent consent to take
the risk of an operation which in a large proportion of cases has proved fatal, but
which is the only method by which his disease can possibly be cured, and which,
if it succeeds, will restore him to health and vigour. We do not conceive that it
would be expedient to punish the surgeon who should perform the operation,
though by performing it he might cause death, not intending to cause death, but
knowing himself to be likely to cause it. Again, if a person attacked by a wild
beast would call out to his friends to fire, though with imminent hazard to him-
self, and they were to obey the call, we do not conceive that it would be expedient
to punish them, though they might by firing cause his death, and though when
they fired they knew themselves to be likely to cause his death. We propose,
therefore, that it shall be no offence to do even what the doer knows to be likely
to cause death if the suffering being of ripe age, has, undeceived, given a free and
intelligent consent to stand the risk, and if the doer did not intend to cause death,
but on the contrary, intended in good faith the benefit of the suffer M (a).

The benefit contemplated by this section is a physical benefit, the alleviation
of some disease.

Act must be beneficial : — Mere pecuniary benefit is not a ‘benefit’
within the meaning of this section (b).

In a case where a man of full age engaged a party of eunuchs to emasculate
him who being unskilled persons and unqualified to perform the operation simply
cut off his private parts without proper protection in consequence of which he
died, the persons were held guilty of culpable homicide and the accused could
not claim an exemption under this section (c). To the same effect is another
decision of the Calcutta High Court in which case the accused a kabiraj performed
a dangerous operation, viz., cutting out the internal piles by an ordinary knife in
consequence of which the patient died (d).

Good faith : — Nothing is said to be done in good faith which is done or
believed without due care and attention fe).

In England it has been held that a physician or surgeon need not be a licensed
one to claim exemption (f). It has been held that in criminal charges any
person whether a licensed medical practitioner or not who deals with the life or
health of any person is bound to have competent skill, and is bound to treat his
patients with due care, attention and assiduity ; and if a patient dies for
want of either, the person is guilty of manslaughter (g). So Earle, C. J., held
that to render a medical man liable for negligence or want of due care or skill,
it is not enough that there has been a less degree of skill than some other
medical man might have shown, or a less degree of care than even he might
have bestowed — nor is it enough that he himself acknowledged some degree of
want of care ; there must have been a want of competent and ordinary care and
skill, and to such a degree as to have led to a bad result (h). In a case where
a hakim neglected the ordinary precautions in operating on a woman’s eye, it
was held that he was not acting in good faith and could not be excused under
this section (i). But if a person bona fide and honestly exercising his best skill to

(a) Note B. ~~

(b) Explanation to s. 92.

(c) Baboolun Hirjah, (1866) 6 W. R. (Cr.) 7.

(d) Sukaroo Kabiraj , (1887) 14 C. 666.

(e) S. 62 1 supra.

(f) 1 Hale P. C. 429, sec Ruddock V. Lowe, (1862) 4 F. & F. 519 ; also Jones V.
Fay, (1862) 4 F. & F. 525.

(g) Catherine Spiller, (1832) 5 C. & P. 333 ; see also Simpson (1830) 1 Lewin
C. C. 172 and Fetgson, (1830) 1 Lewin, C. C. 181.

(h) Rich V. Pierpont , (1865) 3 F. & F. 35.

(i) Gulam Hyder Punjabi , 39 B. 523.

128

THE INDIAN PENAL CODE

[.CHAP. IV

cure a patient, performs an operation which causes the patient's death, he is not
guilty, of manslaughter ; and it makes no difference whether he is a regular
surgeon or not, or whether he has had a regular medical education or not (j). If
a medical man, though lawfully qualified as such, causes the death of a person
by the grossly unskilful or the grossly incautious use of a dangerous instrument,
he is guilty of manslaughter (k). So also, where a person grossly ignorant of
medicine, administers a dangerous remedy to a patient, proper medical assistance
having been available, which causes his death, the person administering the dan-
gerous remedy has been held guilty of manslaughter (1). The question in all
such cases is for the jury to say whether the accused had not acted rashly and
carelessly so as to cause death (m). In a case where a doctor, who was skilled in
midwife r y, and had delivered many women at different times, tore away part
of the prolapsed uterus of one of his patients, supposing it to be a part of the
placenta and the patient died and he was thereupon indicted for murder. Lord
Ellenborough, C. J., in charging the jury observed : “ There has not been a
particle of evidence adduced which goes to convict the prisoner of the crime of
murder, but still it is for you to consider whether the evidence goes so far as to
make out a case of manslaughter. To substantiate that charge the prisoner
must have been guilty of criminal misconduct, arising either from the grossest
ignorance, or the most criminal inattention. One or other of these is necessary
to make him guilty of that criminal negligence and misconduct, which is essential
to make out a case of manslaughter. It does not appear that in this case there was
any want of attention on his part ; and from the evidence of the witnesses on his
behalf, it appears that he had delivered many women at different times, and from
this he must have had some degree of skill * * (n). In another case, an accused,
a person of education and wealth and living in a town where medical attendance
could easily be procured, chained up his brother, who was subject to fits of
violent insanity with lucid intervals, for over three months in an unnecessarily
cruel way and apparently would have continued to confine him indefinitely if
the District Judge had not interfered, held , that he was guilty of an offence
under section 344, infra , and could not be said to have acted with due care and
attention and thus could not get the benefit of this section and section 29 infra (o).
The greater the education, the greater degree of care and skill would be
demanded of the prisoner. As Tindal, C. J M held : “ Every person who enters
into a legal profession undertakes to bring to the exercise of it a reasonable degree
of care and skill. He does not undertake if he is an attorney, that at all events
you shall gain your cause; nor does a surgeon undertake that he will perform a
cure, nor does he undertake to use the highest possible degree of skill; there may
be persons who have higher education and greater advantages than he has, but
he undertakes a fair, reasonable and competent degree of skill ” (p).

89. Nothing which is done in good faith for the benefit
. , „ , of a person under twelve years of age, or

faith for benefit of child or unsound mind, by or by consent, either
or insane person by or eX press or implied, of the guardian or other

by consent of guardian. r , r i i t i

person having lawtul charge or that person :

(j) Von Bulchell, (1829) 3 C. & P. 629 ; see John Long, (1830) 4 C. & P 398.

(k) Spilling, 2 Moody and Robinson's reports 107.

/I) John Webb, (1834) 2 Lcwin C. C. 196 ; see also Markuss , (1804^ 4 F. & F. 350

(m) Crook, (1859) 1 F. & F. 521.

(n) John Williamson , (1829) 3 C. & P. 635.

(o) Shimbu Narain , (1923) 45 A. 495 : 21 A. L. J. 391 : 24 Cr. L. J. 638 ;73 I. C

526 .

(p) Lanphier V. Phipos, (1838) 8 C. & P. 475. f

SEC. 89^1

GENERAL EXCEPTIONS

129

is an offence by reason of any harm which it may cause,
or be intended by the doer to cause or be known by the
doer to be likely to cause to that person : Provided —

First. — That this exception shall not extend to the intentional
causing of death, or to the attempting to cause death ;

Secondly. — That this exception shall not extend to the
doing of anything which the person doing it knows to be likely
to cause death, for any purpose other than the preventing of
death or grievous hurt, or the curing of any grievous disease or
infirmity ;

Thirdly. — That this exception shall not extend to the volun-
tary causing of grievous hurt, or to the attempting to cause
grievous hurt, unless it be for the purpose of preventing death or
grievous hurt, or the curing of any grievous disease or infirmity ;

Fourthly. — That this exception shall not extend to the
abetment of any offence, to the committing of which offence it
would not extend.

Illustration .

A t in good faith, for his child’s benefit, without his child’s consent, has his
child cut for the stone by a surgeon, knowing it to be likely that the operation will
cause the child’s death, but not intending to cause the child's death. A is within the
exception, inasmuch as his object was the cure of the child.

This section empowers the guardian of a person under twelve years of age
or a person of unsound mind to inflict harm himself or consent to the infliction
of harm by another: provided, it is done in good faith and for the benefit of
the minor under twelve years or the lunatic.

For good faith and benefit see notes under the preceding section.

The Authors of the Code say with regard to this section : “ A lunatic may be
in a state which makes it proper that he should be put into a strait waistcoat. A
child may meet with an accident which may render the amputation of a limb
necessaiy. But to put a strait waistcoat on a man without his consent is, under
our definition, to commit an assault. To amputate a limb is, by our definition,
voluntarily to cause grievous hurt, and, as sharp instruments are used, is a very
highly penal offence. We have, therefore, provided, by clause 71 (s. 89), that the
consent of the guardian of a sufferer who is an infant or who is of unsound
mind shall, to a great extent, have the effect which the consent of the sufferer
himself would have, if the sufferer were of ripe age and sound mind. That there
should be some provision of this sort is evidently necessary. On the other hand,
we feel that there is a considerable danger in allowing people to assume the
offence of judging for others in such cases. Every man always intends in good
faith his own benefit, and has a deeper interest in knowing what is for his own
benefit than anybody else can have. That he gives a freehand intelligent consent
to suffer pain or loss creates a strong presumption that it is good for him on the
whole to suffer that pain or loss. But we cannot safely confide to him the in-
terest of his neighbours in the same unreserved manner in which we confide to
him his own, even when he sincerely intends to benefit his neighbours. Even
parents have been known to deliver their children up to slavery in a mreign
country to inflict the most cruel mutilations on their male children, to sacrifice the
chastity*of their female children, and to do all this, declaring, and perhaps with

15

130

THE INDIAN PENAL CODE

[ CHAP. IV

truth, that their object was something which they considered as advantageous to
their children. We have, therefore, not thought it sufficient to require that on
such occasions the guardian should act in good faith for the benefit of the ward.
We have imposed several additional restrictions which, we conceive, carry . their
defences with them’* (q). Brown, J., in Mating Ba Mating s ense (r) referring to
Clear V. Booth , (s) observed that the Judges did not definitely lay down the
limits within which the power of the school -master extends to inflict punishment
for offences committed out of school and held that the parent or guardian must be
deemed to have given an implied consent to the infliction of such reasonable
punishment of the child sent to school for the purpose of school discipline, and
the purpose with which the parential authority is delegated to the school-master
who extends his authority over the child when it is outside the school
walls.

90. A consent is not such a consent as is intended by any
Consent known to be section of this Code, if the consent is given
given under fear of by a person under fear of injury or under
misconception. a misconception of fact, and if the person

doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception ; or

if the consent is given by a person who, from unsound-
ness of mind, or intoxication, is unable
person"* ° Insane to understand the nature and consequence
of that to which he gives his consent ; or
unless the contrary appears from the context, if the consent

Consent of child. is S ive , n ^ a P erSOn wh ° * S Under tWeIve

years of age.

Consent of child.

This section does not attempt to define ‘ consent * but says what is not con-
sent. As Brett, J., observed : “ Consent or non-consent is an action of the mind,
it consists exclusively of the intention of the mind” (t).

According to Story, “ an agreement or consent implies an act of reason ac-
companied with deliberation, the mind weighing as in a balance the good or evil
on each side ” (u).

A person consenting under a misconception of fact “ cannot be said to con-
sent within the meaning of this section M (v).

Mayne in his 4 Criminal Law * says : 44 Linder s. 90 consent can only be given
by a person who is twelve years of age, unless the contrary appears from the con-
text. The consent must be voluntary, and the person who gives it must be capable
of knowing, and must in fact know, the nature and consequences of the act con-
sented to (w).

/‘There is a difference between consent and submission. Every consent
involves a submission, but it by no means follows that a mere submission involves
consent. The mere submission of a child when in the hands of a strong man.

(q) Note B.

(r) (1925) 3 R. 659 : A. I. R. (1926) R. 107.

(s) (1893) 1 Q, B. D. 465.

(t) Middleton , (1872) L. R. 2 C. C. R. 62.

(u) Story's Equity Jurisprudence, s. 222.

(v) Jaladu, (1911) 36 M. 453 ( 456, 457).

(w) Mayne ‘ Criminal Law/ third edition, s. 206, p. 432,

SEC. 901

GENERAL EXCEPTIONS

131

and most probably acted on by fear, can by no means be taken to be such a con-
sent as will justify the prisoner in a point of law " (x).

Somewhat complex questions arise with regard to consent in cases of several
character.

Indecent assault : — In a case of an indecent assault upon two young boys
the Judge asked the Jury to decide : “ Whether the boys merely submitted to the
filthy act, ignorant of what was going to be done to them, or of the nature of what
was being done, or if they exercised a positive will about it, and consented to what
the defendant did. In the former case they would find the defendant guilty ;
in the latter case they would acquit him " (y). The Jury in this case found the
prisoner guilty as the boys merely submitted to his act without knowing the
nature of the act (z).

Rape : — In an English case where a girl allowed a quack doctor to have
intercourse with her, the said doctor having informed her that it was necessary
to perform a surgical operation on her and she having submitted to what she
believed was a surgical operation, the accused was held to have committed
rape (a).

Difference between English Law and Indian Law on consent in Rape

The English judges held that a consent arising from a mere criminal instinct as
in the case of an idiot female who is of an age to have such instincts is sufficient
to prevent a conviction on a charge of rape (b), whereas the Indian Penal Code re-
quires the intelligent consent of a woman who is able to understand the nature
and consequences of the act.

Misconception of fact : — This expression means wilful misrepresentation 9
otherwise a skilled medical man may be hauled up as a criminal for an error of
judgment.

Where a party of eunuchs who were not skilled in surgery and who were en-
gaged by a person to emasculate a person over 18 years of age, cut off the private
parts of that person without proper ligatures, in consequences of which that
person died, were held guilty of culpable homicide and not murder (c). Where the
accused who professed to be snake-charmers persuaded the deceased to be bitten
by a poisonous snake, inducing them to believe that they had power to protect
him from harm. Here the accused were not excused under this section as the
consent was given under a misconception of facts, that is, in the belief that the
accused had power by charms to cure snake-bites and that the accused knew that
the consent was given under such misconception (d). So in another case where
a person knowing that he had a foul infectious disease solicited intercourse with
the consciousness that the infection of his wife would be the natural and reason-
able consequence of intercourse and he also knew that the wife consented to it in

ignorance of his condition, Field, J., held:** The result, therefore,

at which I have arrived is, that there was no consent in fact by the prisoner’s wife
to the prisoner’s act of intercourse, because although he knew, yet his wife did
not know and he wilfully left her in ignorance as to the real nature and character
of that act ” (e). But in this case the Court held that the conduct of the prisoner
did not amount to assault actually causing bodily harm (f).

(x) Per Coleridge, J., in Day , (1841) 9 P. 722, 7241 ~~

(y) Loch , (1872) L. R. 2 C. C. R. 10.

(z) Ibid.

(a) Flattery , (1877) 2 Q. B. D. 414.

(b) Fletcher, (1866) L. R. 1 C. C. R. 39.

(c) Baboolun Hijarah , (1866) 6 W. R. (Cr.) 7.

(d) Poonai Fattemal, (1869) 12 W. R. 7, see also, Shwe Kin, (1916) 8L. B. R. 166.

(e) Clarence , (1889) 22 Q. B. D. 23 : 16 Cox. C. C. 611.

(f) * Ibid; see also Hegarty V. Shine , (1878) 14 Cox. C. C. 142.

132

THE INDIAN PENAL CODE

[CHAP. IV

Evidence of consent:— The question whether consent was given or not
is one of fact and, as consent justifies an act otherwise penal, the onus is on the
accused to prove it (g).

91 .

Exclusion of acts,
which are offences in-
dependently of harm
caused.

Act done in
faith for benefit of a
person without consent.

The exceptions in sections 87 and 88 and 89 do not
extend to acts which are offences inde-
pendently of any harm which they may
cause, or be intended to cause or be known
to be likely to cause, to the person giving the
consent, or on whose behalf the consent is given.

'■ry Illustration .

Causing miscarriage (unless caused in good faith for the purpose of saving the
life of the woman) is an offence independently of any harm which it may cause or be
intended to cause to the woman. Therefore, it is not an offence “ by reason of such
harm and the consent of the woman or of her guardian to the causing of such mis-
carriage does not justify the act.

This section says that if the act is an offence independently of the harm it
may cause to the person giving consent, the offender will not be protected.

92 . Nothing is an offence by reason of any harm which
g00d it may cause to a person for whose benefit
it is done in good faith, even without that
person’s consent, if the circumstances are
such that it is impossible for that person to signify consent, or if
that person is incapable of giving consent, and has no guardian
or other person in lawful charge of him from whom it is possible
to obtain consent in time for the thing to be done with benefit :
Provided —

First. — That this exception shall not extend to the intentional
'provisos causing oi death, or the attempting to

cause death ;

Secondly. — That this exception shall not extend to the

doing of anything which the person doing it knows to be likely
to cause death, for any purpose other than the preventing of
death jot grievous hurt or the curing of any grievous disease or
infirmity ;

Thirdly. — That this exception shall not extend to the

voluntary causing of hurt, or to the attempting to cause hurt,
for any purpose other than the preventing of death or hurt ;

Fourthly. — That this exception shall not extend to the

abetment of any offence, to the committing of which offence it

would not extends

Illustrations.

(a) Z is thrown from his horse, and is insensible. A , a surgeon, finds that Z
requires to be trepanned. A t not intending Z's death, but in good faith, for Z’s benefit,
performs the trepan before Z recovers his power of judging for himself. A has com-
mitted no offence.

(g) Ananto Rurangat, (I860) 6 W, K, 67 Cr,

SEC. 93]

GENERAL EXCEPTIONS

i33

(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the
shot may kill Z * but not intending to kill Z, and in good faith intending Z's benefit.
A § & ball gives Z a mortal wound. A has committed no offence.

(c) A; a surgeon, sees a child suffer an accident which is likely to prove fatal
unless an operation be immediately performed. There is not time to apply to the
child's guardian. A performs the operation in spite of the entreaties of the child, in-
tending, in good faith, the child's benefit. A has committed no offence.

(d) A is in a house which is on fire, with Z t a child. People below hold out a
blanket. A drops the child from the house-top, knowing it to be likely that the fall
may kill the child, but not intending to kill the child, and intending, in good faith, the
child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.

Explanation . — Mere pecuniary benefit is not benefit within
the meaning of sections 88, 89 and 92.

This section, in its natural sequence, should have followed section 89. It
deals with 4 beneficial act done without consent

The Authors of the Code obserne : — “ There yet remains a kindred class of
cases which are by no means of rare occurrence. For example, a person falls
down in an apoplectic fit. Bleeding alone can save him, and he is unable to signify
his consent to be bled. The surgeon who bleeds him commits an act falling
under the definition of an offence. The surgeon is not the patient’s guardian, and
has no authority from any such guardian ; yet it is evident that the surgeon ought
not to be punished. Again, a house is on fire. A person snatches up a child too
young to understand the danger, and flings it from the house-top, with a faint
hope that it may be caught in a blanket below, but with the knowledge that it is
highly probable that it will be dashed to pieces. Here, though the child may be
killed by the fall, though the person who threw it down knew that it would very
probably be killed, and though he was not the child’s parent or guardian, he ought
not to be punished. #

“ In these examples there is what may be called a temporary guardianship
justified by the exigency of the case and by the humanity of the motive. This
temporary guardianship bears a considerable analogy to that temporary magistracy
with which the law invests every person who is present when a great crime is
committed, or when the public peace is concerned. To acts done in the exercise
of this temporary guardianship, we extend by clause 72 (this section) a protection
very similar to that which we have given to the acts of regular guardians ” (h).

Four illustrations are given in the Code to which Stephen (i) adds the follow-
ing illustrations : —

(1) >4 is rendered insensible by an accident which renders it necessary to ampu-
tate one of his limbs before he recovers his senses. The amputation of his limb
without his consent is not an offence.

(2) If the accident made him mad, the amputation in spile of his resistance
would be no offence.

(3) B is drowning and insensible. A, in order to save his life, pulls B out of
the water with a hook which injures him. This is no offence.

93 . No communication made in good faith is an offence
by reason of any harm to the person to whom
it is made, if it is made for the benefit of that

Communication made
in good faith.

person.

Illustration .

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot
live. The patient dies in consequence of the shock. A has committed no offence,

(hi Note B.

(t) Stephen’s Digest of Criminal Law, Art. 222.

134 THE INDIAN PENAL CODE [ CHAP. IV

though he knew it to be likely that the communication might cause the patient's
death. y

This section requires that the communication must be made in good faith
and for the benefit of that person. The word ‘ benefit * here includes both per-
sonal as well as pecuniary benefit.

“Good faith ” — see s. 52, supra.

94 . Except murder, and offences against the State punish-
Act to which a per- able with death, nothing is an offence which
son is compelled by is done by a person who is compelled to do
thrcats it by threats, which, at the time of doing

it, reasonably cause the apprehension that instant death to that
person will otherwise be the consequence : Provided the person
doing the act did not of his own accord, or from a reasonable
apprehension of harm to himself short of instant death, place
himself in the situation by which he became subject to such
constraint.

Explanation 1. — A person who, of his own accord, or by
reason of a threat of being beaten, joins a gang of dacoits, know-
ing their character, is not entitled to the benefit of this exception,
on the ground of his having been compelled by his associates
to do anything that is an offence by law.

Explanation 2. — A person seized by a gang of dacoits, and
forced by threat of instant death, to do a thing which is an
offence by law ; for example, a smith compelled to take his stools
and to force the door of a house for the daeoits to enter and
plunder it, is entitled to the benefit of this exception.

This section lays down compulsion as a defence to criminality. It enacts
that no compulsion under thr.at can justify murder and offences against the State
punishable with death. Although this section is based on the principle of English
law about compulsion and necessity as a defence, it is narrower than the English
law. While under the English law it is permissible for a man to save his lire at
the expense of the State, it is not so under the Indian Penal Code.

Scope:— This section provides that ‘compulsion* is not a defence in
British India to a charge under s. 121 (j).

Principle According to Sir James Stephen, “ Criminal law is itself a
system of compulsion on the widest scale. It is a collection of threats of injury
to life, liberty, and property if people do commit crimes. Are such threats to be
withdrawn as soon as they are encountered by opposing threats? The law says
to a man intending to commit murder, ‘ if you do it, I will hang you.* Is the law
to withdraw its threats if some one else says, 4 if you do not do it. I will shoot you.
Surely it is at the moment when temptation to crime is strongest that the law
should speak most clearly and emphatically to the contrary. It is, of course, a
misfortune for a man that he should be placed between two fires, but it would be
a much greater misfortune for society at large if criminals could confer impunity
upon their agents by threatening them with death or violence if they refused to
execute their commands. If impunity could be so secured, a wide door would

(j) Aung Hla, (1031; 0 R. 404.

GENERAL EXCEPTIONS

SEC. 94 ]

135

be opened to collusion, and encouragement would be given to associations of
malefactors, secret or otherwise ” (k).

Analogous law s— ' The English law is wider than this section inasmuch
as, except in cases of treason or homicide, under English law, a person who has
been forced to commit an offence by fear of death, or of grievous bodily harm,
is excused. The fear of having houses burnt or goods spoiled is no excuse for
joining and marching with rebels (1). Even under the English law the threat
must be of instant death made under circumstances which render it likely that
it may be executed immediately but murder or an act of treason punishable with
death will not be excused. As Lord Hale puts it— if the alternative is offered to
a person of dying as an innocent man or as a criminal, he is bound to accept
the former (m) and this is also what this section lays down.

Offence against the State punishable with death: — See s. 121, infra.

This section lays down that except in cases of murder, and offences against
the State punishable with death, an act is not a crime if at the time of doing it
the person who was compelled to do it was under the apprehension of instant
death.

When is compulsion a defence ? —Under this section a plea of compulsion
by threats which reasonably cause the apprehension of death is a good defence
by a person charged with any offence except murder and offences against the
State punishable with death.

The word * murder * in this section cannot be held to include abetment of
murder punishable under s. 109 (n). The mere menace of future death will not
be sufficient (o). Persons who paid bribes to the officers in the Revenue Survey
Department in order to avoid pecuniaiy injury or personal molestation are not
protected under this section. The limits of the application of the doctrine of
necessity as an excuse for an act otherwise criminal are those prescribed under
this section (p). To obtain the benefit of the exception allowed by section 94
of the Penal Code, it must be shown that the prisoners were compelled to act
as they did from apprehension that instant death would be the consequence of a
refusal (q). Nothing but fear of instant death is a defence for a policeman who
tortures any one by order of a superior (r).

When compulsion is no defence : — A man who in order to escape death
from hunger, kills another for the purpose of eating his flesh is guilty of murder,
although at the time of the act he is in such circumstances that he believes and
has reasonable ground for believing that it affords the only chance of preserving
his life. At the trial of an indictment for murder it appeared upon a special verdict
that the prisoners D and 5, seamen and the deceased a boy of seventeen were
cast away in a storm on the high seas, and compelled to put into an open boat
and that on the eighteenth day when they had been seven days without food and
five without water, D proposed to S that lots should be cast who should be put
to death to save the rest, and that they afterwards thought it would be better to
kill the boy, held , that upon these facts, there was no proof of any such necessity
as could justify the prisoners in killing the boy, and that they were guilty of
murder(s). Compulsion is a defence in cases where there must be a reasonable fear

(k) Stephen’s History of Criminal Law, Vol. II, p. 107.

(l) Me. Growthcr's case , (1746) 18 St. Fr. 391 ; Foster’s Cr. L. 13.

(m) 1 Hale P. C. 6-61.

(n) UmadasiDasi , (1924) 52 C. 112 : 28 C. W. N. 1046 : 40 C. L. J. 143.

(o) lHaleP. C.51.

(p) Leading case of Maganlal , (1889) 14 B. 115.

(q) Sanoo , (1868) 10 W. R. (Cr.) 48.

(r) Latif Khan, (1895) 20 B. 394.

(?) R. V. Dundvy and Stephens , (1884) 14 Q. B. D. 273.

136

THE INDIAN PENAL CODE

[CHAP. IV

at the very time of instant death (t). Following this leading case of 4 Maganlal *
the Bombay High Court in another case held that except where imsoundness of
mind is proved, or real fear of instant death is proved, the burden being on the
prisoner, the pressure of temptation is not an excuse for breaking the law. In
Reg v. Dudley , the Judges would not allow any theory about 4 necessity * to be
made 4 the legal cloak for unbridled passion and atrocious crime *. Since Lord
Hale condescended to refute the Jesuits of France that theory has hardly been
mooted in the High Courts of Justice until Reg. V. Dudley # where Lord Coleridge
hints at Satanic origin : —

44 So spake the fiend, and with necessity.

The tyrant’s plea, excused his devilish deeds *. (u).

In an English case where A , who was insane and collected a number of persons
together, who armed themselves, having a common purpose of resisting the law-
fully constituted authorities, and declared in presence of C and Z), two of the
persons of his party, that he would cut down any constable who came against him
and afterwards shot an assistant of a constable who came to apprehend A under
a warrant, held , that C and D were guilty of murder as principals in the first
degree, and that any apprehension that C and D had of personal danger to them-
selves from A, was no ground of defence for continuing with him after he had so
declared his purpose ; and also that it was no ground of defence that A and his
party had no distinct or particular object in view when they assembled together
and armed themselves. The apprehension of personal danger does not furnish
any excuse for assisting in doing any act which is illegal (v).

The Madras High Court held that a person, who by threats of death is in-
duced to do an act in order to facilitate the commission of a murder cannot claim
the benefit of this section (w).

95. Nothing is an offence by reason that it causes, or that
it is intended to cause, or that it is known
harm 1 caUbinfi bllghi to be likely to cause, any harm, if that harm

is so slight that no person of ordinary sense
and temper would complain of such harm.

This section illustrates the maxim de minimis non curat lex (law does not
care about trifles).

The Authors of the Code observe : 41 This section is intended to provide for
those cases which, though, from the imperfections of language, they fall within the
letter of the penal law, are yet not within its spirit, and are all over the world con-
sidered by the public, and for the most part dealt with by the tribunals, as innocent.
As our definitions are framed, it is theft to dip a pen in another man’s ink, mischief
to crumble one of his wafers, an assault to cover him with a cloud of dust by riding
past him, hurt to incommode him by pressing against him in getting into a
carriage. There are innumerable acts without performing which men cannot
live together in society, acts which all men constantly do and suffer in turn, and
which it is desirable that they should do and suffer in turn, yet which differ only
in degree from crimes. That these acts ought not to be treated as crimes is
evident, and we think it far better expressly to except them from the penal
clauses of the Code than to leave it to the judges to except them in practice ; for
if the Code is silent on the subject, the judges can except these cases only by resort-

(t) Maganlal , (1889) 14 13. 115.

(u) Devji Govindji , (1885) 20 B. 215 at p. 222.

(v) Regina V. Tyler and Price ; (1838) 8 C. & P. 010.

(w) Killikyatara Bomma t (1912) M. W. N. 1108 : 19 I. C. 207 ; 14 Cr. L. J\ 207.

SEC. 95 ]

GENERAL EXCEPTIONS

137

mg to one or two practices which we consider as most pernicious, by making law,
or by wresting the language of the law from its plain meaning ” (x).

Trivial offences ' This section would have no application, unless the act
in question amounted to an offence under the Code, but {or the operation of this
section (y). Imputation to a Hindu that he is an outcaste is defamatory and is
not covered by this section (z).

Slight : — The taking of almost valueless pods from a tree standing upon
Government waste ground is protected under this section (a). It is no offence
to take earth of hardly any value from an open piece of ground (b) ; so also is the
removal of a semi-decayed branch of a tamarind tree overhanging the roof of one's
house because it caused inconvenience to him (c). The charge of obstructing a
municipal peon unless accompanied by offences of gravity, c.g. t evasions of
octroi duty and causing hurt to the peons has been held to be slight (d). The
killing of a goat by twisting its neck instead of cutting its throat comes
within the purview of this section (e). A guard who told a passenger that
he was travelling with a wrong or false ticket was held to have caused
slight harm protected by this section (f)» so also a man who in fun caught
hold of the hand of a woman of a questionable character (g). Where a
barrister and a pleader were engaged in a case and the latter made a
remark conveying an imputation against the former who retorted by calling
the latter a “ liar " it was held that this section applied (h) ; so too a
pleader said halkat banchod to a person who persisted in sitting in the pleader's
room after he had been pushed out of it, and immediately apologized for the
same language (i). Where a Deputy Magistrate went to a locality to enquire into
a petition made by the residents for funds to enable them to dig a well and in the
course of a discussion with the people assembled, the Deputy Magistrate re-
marked that as some of the residents were well-to-do, they must make the well
themselves, whereupon the accused who were present there said to the Deputy
Magistrate, “ Then why do you make an enquiry, go away quickly, " the accused
were convicted under s. 504 the High Court of Calcutta held that the
offence was excused under this section (j). An ordinary exchange of abuse in a
public street where neither side is armed and no blows are struck is an offence
too trivial to take notice (k).

Harm held not to be slight : — The pain caused to a District Superinten-
dent of Police by a blow across the chest with an umbrella was held to be not of
such a trivial character as to come within this section (1 ) ; so to write of a man as a
kulabhrasta (prostitute's son) would be defamatory (m) ; to charge a low caste

210 .

(*)

(y)

Note B.

Preonath Chaudhury, (1902) 29 C, 216, following Wilkinson, (1898) 2 C. W. N.

(z) Mohan Lai, (1928) 26 A. L. J. 361 : A. I. R. (1928) A. 213.

(a) Kasyabin Raji, (1868) 6 B. H. C. (Cr. C.) 36 ; see Sharif Ahmad Qahul Singh,
(1921) 43 A. 497 : 19 A. L. J. 426 : 22 Cr. L. J. 715 : 63 1. C. 876.

(b) Gulzarilal, (1882) 2 A. W. N. 229.

(c) Jiva Ram, (1888) 8 A. W. N. 100 ; Mahomed Khan, (1894) 8 C. P. L. R. 16.

(d) Abdul Rashid, A. I. R. (1929) All. 940-80 Cr. L. J. 1163.

(e) Kirpa Singh, (1912) P. W. R. 26 of 1912 (Cr.) : 13 Cr. L. J. 601 : 76 I. C. 169.

(f) South Indian Railway Co. V. Ramakrishna, (1889) 13 M. 34.

(g) Bhairon Misir, (1887) 7 A. W. N. 73.

(h) Vansittart, (1883) 3 A. W. N. 46.

(i) Moro Balvant Marathe, (1913) 15 Bom. L. R. 1039.

( j ) Joy Krishna Samanta, (1916) 21 C. W. N. 95 : 24 C. L. J. 137 : 18 Cr. L. J. 17 :
36 I. C. 849 ; Parma Singh, (1910) 12 Cr. L. J. 103 : 9 I. C. 684 (Cal).

(k) Atma Singh, (1926) & L. L. J. 82 : 27 Cr. L. J. 696 : A. I. R. (1926) L. 412.

(l) Govt, of Bengal V. Sheo Gholam Lalla, (1875) 24 W. R. (Cr.) 67.

(xa) Ramanuja Charira V. Prathivathi Bayan Gar am, (1911) 2 M. W. N.

138

THE INDIAN PENAL CODE

[CHAP. IV

man falsely with theft would amount to defamation (n); to seize a respectable
man by the ear (o) is not causing slight hurt. The tearing up of an account in
the handwriting of the accused and signed by him shewing advances made by the
prosecutor to him, and payments credited by him and the balance due by him
to the prosecutor, although unstamped and therefore not a valuable security, still
when it purported to be a valuable security, would amount to an offence under
s. 477, infra , and does not fall under this section (p).

Where the accused, a Union Chairman, while removing obstruction to the
public thoroughfare caused by the complainant used abusive language, his act
was covered by this section and did not constitute an offence under the Code,
held, further that it is improper for the magistrate to treat an expression of apo-
logy as an admission of "guilt (q).

Of the Right of Private Defence.

96. Nothing is an offence which is done in the exercise
Things done in P ri- of the right of private defence.

vate defence.

The Authors of the Code observe : — “ We propose to except from the operation
of the penal clauses of the Code large classes of acts done in good faith for the
purpose of repelling unlawful aggressions.

" In this part of the chapter we have attempted to define, with as much
exactness as the subject appears to us to admit, the limits of the right of private
defence. It may be thought that we have allowed too great a latitude to the exer-
cise of this right ; and we are ourselves of opinion that if we had been framing
laws for a bold and high-spirited people, accustomed to take the law into their
own hand, and to go beyond the line of moderation in repelling injury, it would
have been fit to provide additional restrictions. In this country the danger is on
the other side ; the people are too little disposed to help themselves ; the patience
with which they submit to the cruel depredations of gang-robbers, and to tres-
pass and mischief committed in the most outrageous manner by bands of ruffians,
is one of the most remarkable and at the same time one of the most discouraging
symptoms which the state of society in India presents to us. Under these cir-
cumstances we are desirous rather to rouse and encourage a manly spirit among
the people than to multiply restrictions on the exercise of the right of self-defence.
We are of opinion that all the evil which is likely to arise from the abuse of that
right is far less serious than the evil which would arise from the execution of one
person for overstepping what might appear to the Courts to be the exact line of
moderation in resisting a body of dacoits " (r).

The eleven sections comprised under this sub-head are in substantial agree-
ment with the principles of English law.

Right of private defence— when open r— Where the parties to a dispute
collect and arm men to vindicate their rights or supposed rights and a conflict
ensues, no question of the right of self-defence of the person arises (s). Magistrates

(n) Nabin Dome , (1865) 2 W. R. 35.

(o) Sashi Bhusan Mukherjec V. Walmsley, (1897) 1 C. W. N. cxxxiv.

(p) Ramasami , (1888) 12 M. 148 followed in Kashi Nath Naek , (1807) 25 C. 207 ;
to the same effect Gapalavaya, (1864) 2 M. H. C. 247 ; Maula Baksh, (1904) 27 A. 28.

(q) In re . Abdul Rahim Khan Sahib , (1915) 4 L. W. 556 ; 17 Cr. L. J. 462 : 36
I. C. 142.

(r) Note B.

(s) Farman Khan, (192$ 5 P. 520.

SEC. 96]

RIGHT OF PRIVATE DEFENCE

139

should not overlook the importance of the law regarding rights of private defence (t)
but a plea of self-defence cannot be availed of by persons who carry arms (u).

Plea of private defence This section simply declares that nothing is
an offence which is done in the exercise of the right of private defence. It is held
to be an excuse and the extent and the limitations are defined in the subsequent
sections under this sub-head. .

" There is no right of private defence under the Code against an act which
is not in itself an offence under it ,# (v). And being an exception to the general
law, it must be pleaded and proved by the defence (w). “ No accused person
can at the same time deny committing an act and justify it. The law does not
admit of justification by putting forward hypothetical cases ; it must be by proof
of positive facts *’ (x). But the Allahabad High Court in 0 recent case has held that
an accused can set up an alternative inconsistent defence and the right of an ac-
cused person to defend himself can only be limited by the provisions of the statute
law (y). In Asgar Shaikh's case (z) although it has been held that the accused
possibly may plead that they were not there and at the same time plead that they
acted in the right of private defence, such a plea cannot be urged where the
accused’s case was that they never struck the opposite party at all, but if there is
evidence either from the evidence of the prosecution witnesses or defence wit-
nesses that they did so, then, of course, the judge must put the case of private
defence to the jury. The plea of private defence cannot be listened to unless it is
pleaded (a) ; and the proper time to set up such plea is before the trial court and
not on appeal (b). The Calcutta High Court in a later case where the right was
not pleaded found upon the facts that such a plea could be urged and held that
the accused could not be held guilty of rioting (c). The Calcutta High Court
has further held that a man who is acting in the exercise of a legal right, viz., the
right of private defence cannot be held guilty of being member of an unlawful
assembly (d).

Extent of right of private defence : — The right of private defence of
property extends to ejecting a trespasser with no more force or violence than is
reasonably necessary to eject him (e). Such right is not exceeded where an
aggressive party sustains hurt in a fight (f) consequent on the aggression or
even death (g). Where a village magistrate arrested a drunken person whose
conduct was at the time a grave danger to the public, the accused is not guilty
of an offence, not by virtue of the rule of English common law but by reason of

(t) Ahmed Din , (1926) 28 Cr. L. J. 252 : A. I. R. (1927) L. 194.

(u) Parbhoo Dosadh , (1926) 28 Cr. L. J. 868 : A. I. R. (1928) P. 46.

(v) Gonouri Lai Das, (1889) 16 C. 206, at 218.

(w) Section 105, Indian Evidence Act (1 of 1872) ; Veerana Nandan , (1912) 11
M. L. T. 251 : (1912) M. W. N. 404 : 13 Cr. L. J. 470 : 15 I. C. 310.

(x) Per Ainslie, J., in Jamsheer Sirdar , (1877) 1 C. L. R. 62 ; PashupatV. Ram -
bhajan, 1 C. W. N. 545.

(y) Yusuf Husain, (1918) 40 A. 284 ; see also, Foudi Koer, (1918) 1 P. L. T. 79 ;

P. L. J. 64 : 21 Cr. L. J. 799 : 58 I. C. 527 : (1921) Pat. Supp. C.W. N. 192.

(z) (1928) 32 C. W. N. 839 : 48 C. L. J. 138.

(a) Jamsheer Sardar, (1877) 1 C.L.R. 62 ; Kalicharan Mukerjee , (1822) 11 C. L.R.

232.

(b) Timmal, (1808) 21 A. 122.

(c) Ramkhtlwan Singh, (1909) 36 C. 827 ; see Upendra Nath Das, (1914) 19 C. W. N.
663 (F. B.) ; Afisuddi Chowkidar, (1919) 29 C. L. J. 571 ; Ajgar Shaikh, (1928) 32
C. W. N. 839 : 48 C. L. J. 138 : A. I. R. (1926) C. 700.

(d) Nasimuddin, (1912) 40 C. 163, at p. 165.

(e) Chandulla, (1914) 18 C. W. N. 275 : 15 Cr. L. J. 209 : 22 I. C. 993.

(f) Devi Das, (1917) P. L. R. No. 36 of 1918 : P. W. R. No. 20 of 1918 (Cr.) : 19
Cr. L. J. 635 : 45 I. C. 683.

(g) Chatter, A. I. R. (1929) All. 897.

140

THE INDIAN PENAL CODE

[ CHAP. IV

the provisions of s. 81 or Ss. 96 to 105 of the Code (h). Where the accused had
picked up the quarirl and tried to hit another but ren for his safety from the
subsequent attack with lathis and after running some distance the accused found
that he could, not very well make his escape and turned round and hit a blow, the
Allahabad High Court held that the accused hit in self-defence and was
justified (i). Where a party of armed men goes to escort certain ladies who
wanted to come with them, such party is not an unlawful assembly and where it
meets with resistance if it fights in s * lf-defence, it does not become an assembly of
rioters (j).

97. Every person has a right, subject to the restrictions
Kight of private de- contained in section 99, to defend —

fence of the body and
of property.

First . — His own body, and the body of any other person,
against any offence affecting the human body ;

Secondly . — The property, whether moveable or immoveable,
of himself or of any other person, against any act which is an
offence falling under the definition of theft, robbery, mischief
or criminal trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.

This section lays down the extent of the right of private defence as section
99 prescribes its limitations.

Distinction between English law and Indian law:— This section is
wider than the English law. Under this section a stranger may defend the person
or property of another while under the English law no one not standing in a parti-
cular relationship to the person about to be assaulted, e.g., husband and wife or
guardian and ward, parent and child or master and servant, has such right.

‘Any other person * : — The duty of protecting person and property of
any other person flows from human sympathy. As Bentham said : “ It is a
noble movement or the heart, that indignetion which kindles at the sight of the
feeble injured by the strong. It is a noble movement which makes us forget our

own danger at the first cry of distress.. It concerns the public safety

that every honest man should consider himself as the natural protector of every
other ’* (k).

Defence of person : — The right of such defence commences as soon ar a
reasonable apprehension of danger to the body arises from an attempt or threat
to commit the offence, though the offence may not have been committed, and it
continues as long as such apprehension of the danger to the body continues (1)
and such right is subject to the limitations prescribed in s. 99 infra. Of course
the counter-attack should not be out of proportion to the force employed in
the original attack (m). The Bombay High Court has held that a person cannot
set up the right of private defence if he voluntarily engages himself in a fight
with a desire to fight instead of being forced to fight to save himself from threat

(h) Gopal Naidu , (1922) 46 M. 605 (F. B.).

(i) Ram Sevak, (1924) 23 A. L. J. 131 : 26 Cr. L. J. 642 : 86 I. C. 342 : A. I. R.
(1926) A. 313 (2).

(j) Ramzani, (1924) 23 A, L. J. 68.

(k) Bentham s Principles of Penal Laws.

(l) Section 102, infra.

(to) Ahmed Din, (1920) 28 Cr. L» J. 262 : A. I. K. (1927) L. 194.

RIGHT OF PRIVATE DEFENCE

SEC. 97 ]

141

tened violence (n). The Patna High Court in Farmah .Kharis case (o)
held a similar view.

Certain persons, who were lawfully in possession as tenants of agricultural
lands, having reason to suppose that it was possible that they might be attacked
and ejected from the land by force, made a practice of keeping their lathis in
readiness and also persuaded the tenants of some adjacrnt fields to do likewise ; the
expected attack came, and there was a somewhat severe fight in the course of
which both parties were injured. The Allahabad High Court held that the
defenders were within their rights in holding themselves in readiness to repel an
attack, if and when it should come, and were protected by this section (p).

Right of a third person to prevent an assault* :--When a person sees a
woman assaulted in the manner described in Ss. 97 and" 101, he can interfere to
save the woman and kill another person, i\e., the assailant of the woman if neces-
sary (q).

In England it has been held that under circumstances which might have
induced the belief that a man was cutting the throat of his wife, the son shot
and killed his father and the son was hauled up on a charge of murder, that if the
accused had reasonable ground? for believing and honestly believed that his act
was necessary for the defence of his mother, the homicide was excusable (r).

Theft : — See s. 378 infra .

Robbery t—See s. 390 infra .

Mischief See s. 425 infra .

Criminal Trespass See s. 441 infra .

A person who is in possession of lands is now justified in confining persons
who commit criminal trespass (s).

Every person has a right subject to the provisions of s. 99 infra to defend
property whether moveable or immoveable of himself or any other person against
any act which is an offence falling within the definition of criminal trespass. Where
an accused, on being assaulted and pulled down from his bicycle, took out a sharp
knife and wounded the assailant in his chest, he is guilty of an offence under
s. 334 and cannot set up the plea of self-defence (t). Where an accused on
being assaulted and pulled down from his bicycle took out a sharp knife and
wounded the assailant in the chest, held, he could set up the plea of private
defence (u). But where A finds his stolen animals in B's possession and to
recover them drives his as well as B *$ cattle along with his, B's right of private
defence arises (v).

Defence of property : — Every person has the right to defend the property,
whether moveable or immoveable, of himself or of any other person against an act
which is an offence or attempt to commit an offence falling under the definition
of theft, robbery, mischief or criminal trespass.

In such cases all that is necessary for the defence to show is that he is in

(n) Bechar Anop, (1915) 40 B. 105: 17 Bom. L. R. 888: 16 Cr. L. J. 772:
31 1. C. 372.

(o) 5 P. 520.

(p) Hira, (1922) 45 A. 250 : 24 Cr. L. J. 189 : 71 I. C. 605 : A. I. R. (1923) A. 194.

(q) Ma Hla So V. Nga Than , 4 Bur. L. T. 268 : 13 I. C. 389 : 13 Cr. L. J. 53.

(r) Bose , (1884) 15 Cox. C. C. 540.

(s) Shurufoddin V. Kashinath, (1870) 13 W. R. (Cr.) 64.

(t) Prankhang, (1912) 16 C. W. N. 1078 at p. 1080.

(u) Yusuf Hussain, (1918) 40 A. 284 : 16 A. L. J. 169 : 19 Cr. L. J. 371 : 44 I. C.

675. . >

(v) Karam AH , (1927) 9 L. L. J. 260 : A. I. R. (1927) L. 3 55 (2).

142

THE INDIAN PENAL CODE

[ CHAP. IV

actual possession pfthe property and the question as to right to possession it
immaterial (w). A case in which the accused pursued after a thief and killed him
after the house-trespass had ceased did not fall within the 2nd exception to 8. 300
of the Penal Code, the right of private defence of property continuing under
clause 5, s. 105 # of the Code, only so long as the house-trespass continued (x).
When an attack is made on persons acting in the lawful exercise of their right
over property they are entitled to the right of private defence and the only ques-
tion that arises thereafter is whether any member of the party individually ex-
ceeded the right (y). Where a number of persons amounting to 40 or 50 were
attempting to take by force crop which the accused asserted as belonging to them,
although the accused did fio\ set up the right of private defence, it was held by the
High Court of Calcutta in revision that the High Court could deal as a point of
law the question whether ?h the findings of the Judge the accused had a right of
private defence and are therefore entitled to an acquittal (z). Persons who were
rightfully in possession of the land and found it necessary to protect themselves
from aggression on the part of another body of men were held to be justified in
taking such precautions as they thought were required and using such force or
violence as was necessary to prevent the aggression (a). No oerson can take the
law in his own hands. But resistance by owner of cattle to an attempt to
dispossess him thereof is a private defence not of property but of the body,
though exercised with the object of defending the property (c). The Patna High
Court has held that there is no obligation upon a person entitled to exercise the
right of private defence and to defend his person or property to retire merely
because his assailant threatens him with violence. Therefore, where persons
who had seized cattle which had been trespassing on his lands gathered together
a number of men to assist him in resisting an anticipated attempt to rescue the
cattle and a fight between the parties took place in which several men on each side
were killed and injured, were held to be protected by this section (d). If two
persons invade another man’s house the occupier is entitled forthwith to eject
them by using reasonable force for the purpose. He is not bound to go to the
police leaving them in the house (e).

Right of private defence when ceases Where a cow is driven out of
the field, throwing stones at her and breaking her leg, it is no exercise of the right
of private defence and the accused is guilty of mischief (f).

98. When an act, which would otherwise be a certain

Right of private de- f £I,Ce that °^ nCe - FeaSOIl of

fence against the act of the youth, the want of maturity of under-

mincTetc °* unsoun<1 standing, the unsoundness of mind, or
the intoxication of the person doing that
act or by reason of any misconception on the part of that person,

(w) Sachee Bohr, (1867) 7 W. R. (Cr.) 76 ; Tulsi Singh, (1868) 10. W. R. (Cr). 64 •

Guruchar an Chang, (187) 14 W. R. (Cr.) 69. '

(x) Bolakee Jolahed, (1868) 10 W. R. (Cr.) 9.

(y) Kunja Bhuiya, (1912) 39 C. 896.

(z) Baburam Bant, (1912) 17 C. L. J. 394.

(a) Panchkauri , (1897) 24 C. 686, following Narsang Pathabai, (1890) 14 B. 441

(1875) Birjoo Singh v. Khublal , (1873) 19 W. R. 66 ; Shunker Singh v. Buy man Mahto,
(1875) 23 W. R. 25; see also, Paresh Nath Sarker, (1905) 33 C. 295. See Hira II 922)
45 A. 250 : 24 Cr. L. J. 189 : 71 I. C. 605 : A. I. R. (1923) All. 194. ' 1

(b) Ghulam Rasul, (1920) 22 Cr. L. J. 507 : 62 I. C. 331.

(c) Gulshah, 6 S. L. R. 121 : 13 Cr. L. J. 766 : 17 I. C. 78.

(d) Nareshi Singh, (1923) 2 P. 595 : A. I. R. (1924) P. 388,

(e) Gorie Sankar, 18 Cr. L. J. 862 : 41 I. C.> 830 (L. B.).

SEC. 99 ]

RIGHT OF PRIVATE DEFENCE

143

every person has the same right of private defttpce against that
act which he would have if the act were that offeree.

. Illustrations . ■

(a) Z, under the influence of madness, attempts to kill A ; Z is guilty of no offence.
But A has the same right of private defence which he would have if Z were sane.

(b) A enters by night a house which he is legally entitled to enter. Z , in good
faith, taking A for a house-breaker, attacks A . Here Z , by attacking A under this
misconception, commits no offence. But A has the same right of private defence
against Z , which he would have if Z were not acting under that misconception.

Youth — Ss. 82, 83. Unsoundness of mind — S. 84 v Immaturity of under-
standing — s. 83. Intoxications. 85. M isconcept ion— Ss. 76, 79.

This section provides that the right of private defence can be exercised against
persons who from their physical or mental incapacity come within tke excep-
tional clauses of the Code.

An owner of a tree blown down in the wind has a right to remove it and for
that purpose has a right of ingrefe over the tenants land and of private defence
of property in the tree (g).

99. There is no right of private defence against an act
Acts against which which does not reasonably cause the appre-

there is no right of pri- hension of death or of grievous hurt, if

vatc defence. done, or attempted to be done, by a public

servant acting in good faith under colour of his office, though
that act may not be strictly justifiable by law.

There is no right of private defence against an act which
does not reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by the direction of a
public servant acting in good faith under colour of his office
though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there
is time to have recourse to the protection of the public authorities.

The right of private defence in no case extends to the in-
Extent to which the dieting of more harm than it is necessary
right may be exercised, to inflict for the purpose of defence.

Explanation 1. — A person is not deprived of the right of
private defence against an act done, or attempted to be done, by a
public servant, as such, unless he knows, or has reason to believe,
that the person doing the act is such public servant.

Explanation 2.— A person is not deprived of the right of
private defence against an act done, or attempted to be done,
by the direction of a public servant, unless he knows, or has reason
to believe, that the person doing the act is acting by such direc-

(f) Mahadeo, (1911) 12 N. E. R. 188 : 18 Cr. L. J. 280: 38 I. C. 138. See
contra Nareshi Singh , (1923) 2 P. 595.

(g) Push, (1913) 10 N. L. R. 38 : 15 Cr. L. J. 352 : 23 I. C. 704.

144

THE INDIAN PENAL CODE

[ CHAP. IV

tion, or unless' such person states the authority under which he
acts, or if he has authority in writing unless he produces such
authority, if demanded.

Grievous hurt — s. 320. Good faith — s. 52. Public Servant — s. 21.

“This section lays down the extent to which the right of private defence
may be exercised. This section lays down two classes of cases, in which self"
defence is absolutely forbidden. First, where there is time to have recourse to
the protection of public authorities, and secondly , with certain limitations, where
the act is being done by, or under the direction of, a public servant “ (h).

Limits of the right ofcprivate defence : — When the accused was forcing
in the darkness an armed and hostile crowd who were attacking hi? house and
trying to break into it and the accused apprehended that if the crowd succeeded,
he would be roughly handled or even murdered, held, under the circumstances
he was quite justified in firing at them and in continuing to fire, if the attack
went on (i).

Clause 1 : — The first clause enjoins that there is no right of private
defence against acts done by public servants. Put this provision postulates that
the public servant was acting in good faith under colour of his office (j). Where
a vaccinator attempted to vaccinate a child against the wishes of its father and
the father and some of his relations intervened and assaulted the vaccinator but
did not do him any serious harm, held, that as the vaccinator was not acting in
the execution of his duty the accused had a right of private defence (k).

Not strictly justifiable by law : — Where a police constable who was on
duty put questions to a person who was carrying a bundle of cloth to clear up his
suspicions and not for the purpose of causing annoyance, even though the act
of the constable in detaining the cloth was not strictly justifiable by law, the ac-
cused had no right of private defence under this section (1). Where a Sub- Inspect-
or of Salt and Abkari attempted without a search warrant to enter a house in
search of illicit possession of some excisable article which is an offence under the
Madras Abkari Act, the accused persons who obstructed and resisted the Sub-
Inspector, was not entitled to set up the plea of private defence although the act
of the public servant was not strictly justifiable by law (m). In a case where an
Excise Sub-Inspector attempted to search a house for gurjat-ganja, a “ foreign
excisable article ” under the Excise Act and resistance was offered, held, that the
accused were not protected under this section (n). On a warrant which provided
for bail a constable arrested one S without giving him intimation that bail had
been allowed, S was then rescued by a number of persons who assaulted the con-
stable, held, that the arrest of S being illegal, the persons who had rescued S
had the right of private defence and were justified (o).

Where the act of the police-officer was not strictly justifiable by law, it has
been held that the accused have no right of private defence (p). Richardson, J.,
*in the Full Bench decision of Government of Assam v. Sahebulla (q) held that

(h) Mayne “Criminal Law of India " 3rd Ed., 439.

(i) Kuppusamier , (1929) M. W. N. 611.

(j) Bahai, (1906) 28 A. 481 : (1906) 26 A. VV. N. 98 ; Mangovinda Mneki , (1899)
3 C. W. N. 627.

(k) Ibid.

(l) Bhawoo Jivaji V. Mulji Dayal, (1888) 12 B. 377; Ram Harahh, (1913)

15 Cr. L. J. 436 : 42 I. C. 172. V '

(m) Puhot Ketu Ram Harakh , (1896) 19 M. 349.

(n) Jagarnat Mandhata, (1897) 24 C. 324.

(o) Shyama Charan Majumdar , (1911) 16 C. W. N. 549.

(p) Gaman, P. L. R. No. 155 of 1913 : P. R. No. 16 of 1913 : P. W. R. No 20
of 1913 (Cr.) : 14 Cr. L. J. 142 ; 18 I. C. 894.

(q) 27 C. W. N. 856 (878) (F. B.).

SEC. 99 ]

RIGHT OF PRIVATE DEFENCE

145

if the warrant was an invalid warrant issued without jurisdiction, the act of the
police-officer in attempting to make the arrest cannot properly be described as
an act “ not strictly justifiable by law, " but if the warrant is a valid warrant,
there is no occasion for recourse to s. 99. It has been held in Paran Sukh's
case (r) that this section does not interfere with the right of self-defence where
the Sub-Inspector of Police was not acting in good faith.

The law does not empower a police-officer to search an accused person's
house for anything but the specific articles which have been or can be made the
subject of summons or warrant to produce and the accused who pushed the Sub-
inspector was held to have exercised the right of private defence under this
section (s). J .

A person applied under section 100 cf the Criminal Procedure Code for a
search warrant but the Magistrate issued the warrant under section 96 of the Code
under which the police supposed themselves to be acting. The petitioners
resisted the police in executing such warrant of arrest and used force and vio-
lence, held, that the issue of the warrant under section 96 of the Code of Criminal
Procedure was wholly illegal and the warrant was a nullity and it was held further
that the words “ not strictly justifiable by law ” in this section, point to cases where
there is an excess of jurisdiction as distinct from a complete absence of jurisdiction ;
to cases where the official has done wrongly what he might have done rightly ;
not to cases where the act could not possibly have been done rightly hence the
accused were held to have a right cf private defence (t). But where the police-
officer acted without jurisdiction, held , this section has no application (u). Where
the accused were convicted of having assaulted a peon when executing a writ of
delivery of possession of a share in a tank by ordering some fishermen to cast
their net in the tank and catch fish for the decree- holders as provided in the writ,
held , that although the order of the Munsif may have been bad, the accused had
no right of private defence against the peon who was a public servant acting under
the colour of his office in good faith (v). The removal of moveable property by
the Civil Court peon, without giving any option to the judgment-debtor to pro-
vide for safe custody for the property, is illegal. Hence the subsequent taking
back of the said property by the judgment-debtor does not constitute any offence
under Ss. 183 and 147, and this section does not operate as a bar to the exercise
of the right of private defence of property fw). Similarly the petitioner would
not be deprived of his right of private defence when the Income-tax Officer
entering upon his premises insisted upon the production of his account books (x).

Apprehension of death or grievous hurt Where an Excise Inspector
pursued an armed smuggler and fired blank shots whereupon the smuggler drew
a sword and cut him on the thigh, held , that the smuggler had the right of private
defence as he had reasonable grounds for believing that the Inspector intended
to cause death or grievous hurt (y). Before a person can avail himself of the
defence that he used a weapon in defence of his life, he must satisfy that it was

(r) (1925) 23 A. L. J. 1037.

(s) Prankhang, (1912) 16 C. W. N. 1078.

(t) Bisu Haider , (1907) 6 C. L. J. 127 : 11 C. W. N. 836. See Sarbeswar Nath Nath
(1922) 39 C. L. J. 33 ; Asa, (1913) P. L. R. No. 325 of 1913 : P. W. R. No. 38 of 1913
(Cr.) : 14 Cr. L. J. 512 : 20 I. C. 992.

(u) Haq Dad , (1925) 6 L. 392 : A. I. R. (1926) L. 19, following Jogendra Nath
Mukerjee , 24 C. 320.

(v) Preolal Mukerjee, (1913) 18 C. W. N. 548.

(w) Ahmed Sheikh , (1928) 48 C. L. J. 288 : 33 C. W. N. 174.

(x) Acchru Pam, 7 L. 104 : A. I. R. (1926) L. 326.

(y) Nga Nan Da, (1919) 3 U. B. R. 176; Pachai Goundan, 15 Cr. L. J. 710 ;
26 I. C. 158 (Mad.),

* 16

146 THE INDIAN PENAL CODE [ CHAP. IV

necessary to protect his own life or such bodily harm as would give him an ap-
prehension that his life was in imminent danger (z).

Clause 2 : — The second paragraph deals with an act done by the
direction of a public servant, acting in good faith under colour of his office.

Explanation 2 should also be read along with this paragraph.

Where a peon, who was entrusted with a warrant from the Civil Court which
did not conform to the form given in the Schedule to the Code of Civil Procedure
and omitted to insert the name or names of the persons against whom the warrant
is to be executed, was resisted while executing the said warrant, it was held by the
High Court of Calcutta that the peon would not be protected under this clause
and the accused had a right of private defence fa). An attachment made under
a writ which does not bear the seal of the Court, is an invalid and illegal attach-
ment and the person obstructing the peon would be protected (b). An order of
arrest without emergency contemplated by s. 151 , Cr. P. Code, is illegal and a per-
son whose arrest is attempted, may offer resistance and if a police constable uses
force towards him causing injury, the person has the right of private defence (c).
Where a Sub- Inspector, on receiving information of the commission of a dacoity,
searched the house of one of the offenders but without a search warrant and was
resisted and beaten by the accused, the search being illegal, the conviction of
the accused under s. 147 was set aside, as the accused were held to have
been protected by the right of private defence (d). Where the warrant issued
for the arrest of a debtor was initialled but not fully signed, the Allahabad High
Court held that the accused had no right of private defence against resisting the
execution of such a warrant (e).

Where a Magistrate ordered the police purporting to act under s. 145
of the Criminal Procedure Code to take charge of paddy, subject-matter of dispute,
in the proceeding pending before him and in execution of that order the police
went to the spot to guard the paddy but were resisted by armed violence, it was
held that the order of the Magistrate not being strictly legal, the accused had the
right of private defence but they had exceeded their right (f).

Clause 3 2 — The third clause of this section must be read with the first
clause of s. 105. The right of private defence of property commences when
a reasonable apprehension of danger to the property commences. Before such
apprehension commences, the owner of the property is not called upon to
apply for protection to the public authorities. The apprehension which justifies
a recourse to the authorities ought generally to be based on some informa-
tion of a definite kind as to the time and place of the danger actually
threatened, (g).

There is no right of private defence when two parties armed themselves for a
fight to enforce their right or supposed right, and deliberately engaged in such a
fight. In such a case if it is not shown that the accused were acting within the

( 2 ) Patman Khan, (1926) 5 P. 520 : A. I. R. (1926) P. 433.

(a) Uma Charan Singh , (1901) 6 C. W. N. 164.

(b) Badri Gope , (1925) 5 P. 216.

(c) Gaman, A. I. R. (1930) Lah. 348, following Jogendra Nath Mukerjee , (1897)
24 C. 320 : 1 C. W N. 154.

(d) Bajrangi Gope, (1901) 38 C. 304: 15 C. W. N. 343: 13 C. L. 1,659:

Prankhang (1912) 16 C. W. N. 1078 : 17 I. C. 76.

(e) Janki Prosad, (1886) 8 A. 298.

(/) Bhola Makto, (1904) 9 C. W. N. 124 ; Parshadi Pasi V. Baljit Singh
]4 Cr. L. J. 409 : 20 I. C. 233 ; Moinuddin, (1920) 22 Cr. L. J. 442 : 61 I. C. 794 .

(g) Narsing Potabhai , (1890) 14 B. 441.

SEC. 99]

RIGHT OF PRIVATE DEFENCE

147

legal limits of the right of private defence, it does not matter which party was the
first to attack (h).

Time to have recourse to the protection of the public authorities

S. 99 does not avail to the accused where there is ample time to have recourse to
the public authorities fi), but the law does not require that when a person is being
wrongfully deprived of property of which he is in ‘possession* he should leave
the thing alone and run to a thana at a distance of a Kos (two miles) to seek
redress from the police and such person has the right of private defence,
but the wrong-doer has no such right (j). The accused went with three
ploughs on land to which the complainant had the right of possession, and of
which he was in possession till such entry, and began to plough up the land, to
uproot some castor plants and throw them away ; while they were thus in actual
but temporary occupation, the complainant and his party went on the land
and tried to unyoke the cattle, whereupon a riot took place ; held , that the
accused was not justified in beating the complainant’s party because of the fact
of their having obtained temporary occupation (k). Where two parties claim trees
and one goes armed with lathis to cut them down, the first party cannot suc-
cessfully set up the plea that they were acting in the exercise of their right of
private ^ defence H). Where the servants of an indigo factory in Bengal who
had a right to sow land, but had been interfered with by villagers, went out in
force armed with deadly weapons in order to effect their purpose and the villagers
also went out armed to meet them ; it was held that in the affray which followed,
neither party could plead the right of private defence of property as there was a
police station near at hand, and each party could have applied for the protec-
tion of the law (m).

No right of private defence arises when a large body of men go armed and
prepared for a fight, and attack the opposite party with intent to enforce their
right or supported right. Where forty to sixty accused armed with lathis, spears
and billets of wood, proceeded to the disputed land, attacked the complainant
and his father, and destroyed the crops growing thereon, the magistrate having
found that the complainant was in possession and had grown the crops held, that
the right of private defence did not rrise as the accused under the circumstances
of the case had ample time to have recourse to the authorities for the protection
of their rights (n).

Where the complainant’s party consisting of twelve or thirteen persons, went
with kodalis to a bund erected on the land of the master of the accused in order
to cut it as it obstructed the flow of water from the land and destroyed their crops,
and the accused numbering over fifty, armed themselves with lathis and proceeded
to the bund, when the complainant’s party had finished cutting or ceased to cut

(h) Kabiruddin , (1908) 35 C. 368 : 7 C. L. J. 359 ; Maniruddin , (1908) 35 C. 443 ;
see also, Chandulla Sheikh, (1912) 18 C. W. N. 275; Bechor Anop, (1915) 40 B. 105 :
17 Bom. L. R. 888 : 10 Cr. L. J. 772 : 31 I. C. 372 ; Jasuram Marwari, (1923) 24
Cr. L. J. 745 : 74 I. C. 73 : A. I. R. (1924) P. 143 ; Sikander , (1917) P. R. No. 1918
Cr. : 20 Cr. L. J. 83: 48 I. C. 883.

(i) Data Ram , (1925) 26 P. L. R. 267: A. I. R. (1926) L. 516.

(j) Hat Chand, (1929) 31 Cr. L. J. 129 : A. I. R. (1930) L. 314 (2).

(k) Joiram Mahto, (1907) 35 C. 103.

(l) Kadhu Singh, (1902) 24 A. 298.

(m) Jeolall , (1867) 7 W. R. (Cr.) 34 ; See Mana Singh, (1867) 7 W. R. (Cr.) 103 ;
Kalee Beparie, (1878) 1 C. L. R. 521 ; Kabiruddin , (1908) 35 C. 368 ; 7 C. L. J. 319 ;
PragDat, 20 A. 459; Kadhu , (1902) 24 A. 298.

(n) Maniruddin, (1908) 35 C. 384 ; Sikander , (1917) P. R. No. 36 of 1918 (Cr.) :

20 Cr. L. J. 83 : 48 I. C. 883 ; Parbhu Dosadh, (1926) 28 Cr. U 1. 868 : A. I. R. (1928)
P. 46. *

148 THE INDIAN PENAL CODE [ CHAP. IV

at the sight of the accused, held, that the accused had no right of private
defence (o).

When there is no time to have recourse to the public authorities : —

Where a person in possession of property sees an actual invasion of hU right to that
property, if that invasion amounts to an offence under the Code, he is entitled to
assert it by force and collect for thf t purpose men and arms as may be absolutely
necessary to ward off the invader, provided that there is no time to have recourse
to the protection of the public authorities (p). Where the accused, who were
found to be in possession of the disputed land, went upon it in a large body armed
with lathis, prepared in anticipation of a fight, and were reaping the paddy grown
by them, when the complainant’s party came up and attempted to cut the same,
whereupon a fight ensued and one man was seriously wounded and died subse-
quently ; held , that the accused could not be convicted of being members of ah
unlawful assembly as the common object found was not to enforce a right or sup-
posed right but to maintain undisturbed the actual enjoyment of a right fq).

Clause 4 r— The fourth clause deals with the quantum of harm that
may be reused in self-defence. The right of private defence as described in
section 97 of the Code is subject to the restrictions mentioned in section 99,
that is, it should be exercised only in the defence of one s own body or that of
another person against an offence affecting the human body. Under section 102,
the right commences only on a reasonable apprehension of danger to the body
caused by an attempt or threat to commit an offence; and by section 99, clause
4, the right is restricted to not inflicting more harm than it is necessary to inflict
for the purpose of defence (r). The Madras High Court has held that an accused
was entitled to use all force necessary to repel the attack by the complainant even
to the extent of firing a gun at the assailants (s). No greater harm must be inflicted
in the exercise of the right of self-defence than is absolutely necessary for the
defence (t). Robbery by violence may be resisted by violence sufficient to over-
come the force employed by the attacker, and if in the course of such resistance,
death is caused, it may be justified if the right of self-defence was exercised rea-
sonably and properly, but the measure of self-defence must always be propor-
tionate to the quantum of force (u).

Justifiable force Where the accused, three of whom were armed with a
sword, a garasa (scythe) and a lobanda (iron-shod stick) respectively, and the rest
with lathis, went in a large body to a certain disputed land, where the labourers
of the opposite party were reaping some mousari crops, and attacked them, fatally
wounded one and severely injuring another, held, that the accused who ordered
the attack, and those who used the sword, garasa, and lobanda, had exceeded the
right of private defence, and so also the others, who continued in the unlawful

(o) Ambikalal, (1908) 35 C. 443, followed Kabiruddin , (1908) 35 C. 368: 12

C. W N. 384, referred to in Chandulla Sheikh, (1912) 18 C. W. N. 295.

(p) Fouzadari Rai, (1917) 3 P. L. J. 419 : 4 Pal. L. N. Ill : (1918) Pat. Supp.

C. W. N. 254 : 19 Cr. L. J. 241 : 44 I. C. 33 ; Narsang Pathabhai , (1890) 14 B. 441;
Panchkauri, (1899) 24 C. 686; Paresh Nath, 33 C. 295; Bepin Bchari V. Pranakul,
11 C. \V. N. 176 ; Baijnath Dhanuk, (1908) 36 C. 295 ; Nareshi Singh, (1923) 2 P. 595.

(q) Silaiit Mali to, 36 C. 865 ; Fateh Singh, (1913) 41 C. 43, following Panch

Kauri , (1897)" 24 C. 686 ; Pulimatho , 24 M. 124 ; Fouzadari Rai, (1917) 3 P. L. J. 419 :
19 Cr. L. J. 241 : 44 I. C 33.

(r) Goburdhan Bhuyan, (1870) 4 B. L. R. App. 101 : 13 W. It. (Cr.) 55 ; Gokul
Bawree, (1866) 5 W. R. (Cr.) 33; A lingal Kunhiyan, 28 M. 454 ; Bhutnath Dome, 13
C. W. N. 1180 ; Pachai Gownden, 26 I. C. 158.

(s) Pachai Gownden, (1914) 26 I. C. 159 : 15 Cr. L. J. 710 (Mad.).

(t) Dkunnunjoy Poli, 14 W. R. (Cr.) 68 ; Nga Nan Da, (1918) 54 I. C. 577 : 3
U. B. R. (1919) 176.

(u) Ram ProsadMaklon (1918) 4 P. L. J. 289: (1919) Pat. Supp. C. W. N.
262 : 20 Cr. L. J. 375 : 50 I. C. 983.

RIGHT OF PRIVATE DEFENCE

149

SEC. 99 ]

assembly after they knew that the>right of private defence had been exceeded (v).
Where an accused while seizing a thief in the act of committing burglary in his
house caused the suffocation of the thief who died, the Court held that the prisoner
had not exceeded the right of private defence (w). The legal right of private
defence of the body and property is not exceeded by a person who is attacked by
another with a spear, and who strikes a blow with a lathi , which results in the
death of the party attacking ; and such right of private defence of the body extends
under section 100 of the Penal Code to the taking of life where grievous hurt is
reasonably apprehended (x). The fact of exceeding the right of private defence
which a man has cannot make him a member of an unlawful assembly and he can
only be convicted and punished for the individual act which he himself has done
in excess of the right of private defence (y).

Unjustifiable force : — A person has no right to kill persons found upon
one’s land as criminal trespass does not justify homicide unless there was resistance
and violence. As Alderson B., said : “ A kick is not a justifiable mode of turning
a man out of your house, though he be a trespasser. If a person becomes exdted
and gives another a kick, it is an unjustifiable act ” (z). Where a person found
aan old woman stealing rice at night and thereupon he brutally assaulted her
fracturing her shoulder-blade and wrists and causing two contused wounds on her
skull and she immediately died, held , the accused used more force than he was
justified (a).

Explanation : — Even where a right of private defence is not pleaded the
Court on finding upon the evidence before it that the accused acted in the exercise
of his right of private defence is bound to take cognisance of the fact. There is
no right of private defence against the act of a public servant acting in good faith
and under the colour of his office, although the act may not be strictly justifiable
by law. But there still exists a right of private defence under Explanation 1 of
this section in a case where the alleged offender does not know and has no reason
to believe that the person doing the act was a public servant (b).

Attachment of moveable property and its removal without giving the judgment-
debtor the option provided in r. 93 Chap . /, High Court Rules Right of private defence
of property Where certain moveable properties were attached by a Civil Court peon
under Or. 21 , r. 43, C. P. C., in execution of a warrant issued by the Civil Court and
before removal of the properties the peon did not give the judgment-debtor the
option of “ having the attached property kept on his premises or in some other
place in the village on condition that a suitable place for its safe custody be pro-
vided by him" as required by r. 93, page 31, chapter I of the High Court’s
General Rules and Circular Orders (civil) and the accused took away the moveables
thus seized from the river-side where the peon had taken the properties and the
accused were convicted under Ss. 183 and 147, the High Court accepted the re-
ference made by the Sessions Judge and held that s. 99 could not operate as a
bar to the exercise of the right of private defence of property (c).

(v) Baijnath Dhanuk, (1908) 36 C. 298 ; Kunja Bhuiya , (1912) 30 C. 896.

(w) Karim Bux, (1865) 3 W. R. (Cr.) 12.

(x) Moizuddin, (1869) 11 W. R. (Cr.) 41 ; Moku, (1869) 12 W. R. (Cr.) 15: Ramlal
Singh, (1874) 22 W. R. (Cr.) 51 ; Ram Khelawan Singh, (1909) 36 C. 817 ; Dukhit Sha ,
22 Cr. L. J. 177 :60 I. C. 33 (Pat.) ; Surain Singh , A. I. R. (1928) L. 900.

(y) Kunja Bhuiya, (1912) 39 C. 896: 16 C. W. N. 1053.

(z) Wilds's Case, (1837) 2 Lew. 214 : Jhalku Tewari, 17 C. W. N. 1081 : 21 I. C.
382

’ (a) Gokul Bowree, (1866) 6 W. R. (Cr.) 33 ; Durwan Geer, (1866) 6 W. R. (Cr.)
73 ; Fukeera Chamar, (1866) 6 W. R. (Cr.) 60 ; Gour Chand Chung, (1872) 18 W. R.
(Cr.) 20 ; Abdul Hakim, (1880) 3 A. 263 ; Baijnath Dhanuk, (1908) 36 C. 296.

(b) Kishen Lai, (1924) 22 A. L. J. 601.

c) .Ahammad Shaikh, (1928) 33 C. W. N. 174 : 48 C. L. J. 288.

150

THE INDIAN PENAL CODE

[CHAP. IV

100 . The right of private defence of the body extends,
, .. . , under the restrictions mentioned in the

private defence of the last _ preceding section, to the voluntary
S, extends t0 causms causing of death or of any other harm to
the assailant, if the offence which occasions
the exercise of the right be of any of the descriptions hereinafter
enumerated, namely : —

First . — Such an assault as may reasonably cause the appre-
hension that death will otherwise be the consequence of such
assault ;

Secondly . — Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the conse-
quence of such assault ;

Thirdly. — An assault with the intention of committing
rape ; *

Fourthly . — An assault with the intention of gratifying un-
natural lust ;

Fifthly . — An assault with the intention of kidnapping or
abducting ;

Sixthly . — An assault with the intention of wrongfully con-
fining a person, under circumstances which may reasonably
cause him to apprehend that he will be unable to have recourse
to the public authorities for his release.

Voluntary— s. 39. Grievous hurt — s. 320.

Rape — s. 375. Unnatural lust — s. 377.

Kidnapping — S. 359, 361 . Wrongfully confining — s. 340.

The cases in which injury to the person may be resisted to the extent of
voluntarily causing death to the assailant are laid down in this section.

Scope : — The right of private defence is a restricted right and this section
has to be read subject to the provisions of s. 99 (d). The question whether there
is a right of private defence is a matter which can be dealt with by the High Court
as a pure point of law (e).

Clause 1 s— So where the deceased C who was going on a cart met one
A whom he asked, ‘ Is that you ’, and on his replying in the affirmative, he abused
him and kicked him whereupon A called out to B, who ran up, with a bottle, in
hand with which he struck C. C then struck A with his dah causing slight injury
and gave a blow to B which cut off three of his fingers. A thereafter took out a
knife which he carried and stabbed C in a vital part causing his death. It was
held that although C had turned on B, A had the right to cause his death as he
reasonably apprehended at the time that B's life was in danger and C might also
use his dah against A and as such he was protected under this section (f). If the
offence which occasions the exercise of the right be such an assault as may
reasonably cause the apprehension that death will otherwise be the cnns<»q n»»ncf

(d) Jhakri Chamar, (1912) 16 C. L. J. 440 : 13 Cr. L. J 905 : 17 I. C. 1001.

(e) Babu Bam Raut, (1012; 17 C. L. J. 394.

(f) NgaKyaw Duv, (1903) 10 Bur. L. R. 99. *

right of private defence

SEC. 100]

151

of such assault, held , that the accused causing death of the assailant would be
protected under the first clause (g).

Clause 2 : — The right of private defence of the body and property
of a person is not exceeded by a person who, when attacked by another with a
spear, strikes a blow with a lathi ; and such right extends to the taking of life where
grievous hurt is reasonably apprehended (h). A party of armed men going to
escort certain ladies who wanted to come with them is not an unlawful assembly.
Where, therefore, it meets with resistance and fights in self-defence, it does not
become an assembly of rioters (i).

Where a person armed with a heavy weapon rushed at the accused showing
every indication of assaulting him, and whereupon the latter used his spear as the
deceased was in the very act of delivering a blow to him, and in doing so, killed
him, it was held that though the accused could have run away, still he was not
bound to do so ; as he reasonably apprehended grievous hurt he was entitled to
use his spear even to the extent of killing the assailant (j). Where the accused
seeing that he is being attacked by a number of men armed with lathis fired his
double-barrelled gun apprehending that death or grievous hurt would follow, held,
he was protected under the second clause (k). The same view was taken in a case
where the deceased, a sturdy and dissolute young man, upon a quarrel with the
accused who was his uncle and his uncle’s son, after an exchange of abuse, seized
the side post of a cart three feet long and raised it to strike his uncle, whereupon
his son seized another side post two feet long and struck the assailant two blows
on the head which killed him (1). Where R picked a quarrel and tried to hit B
and then ran for safety from the subsequent attack made on him by B and after
running some distance found that he could not escape and then hit a blow, held ,
R acted in self-defence (m).

Clause 3:— While the husband and other relations of a girl assaulted a
man while he was committing rape upon the girl, held 9 that they were justified
by this clause (n).

Clause 5 : — A money-lender sent two peons armed with lathis and ^/rpans
to collect the dues from the accused. The peons met the accused and insisted on
his accompanying them to the master and on his refusal to do so, dragged him
along. On the way the accused stabbed one of the peons in the abdomen and the
peon died on the next day, held , that the act of the peons constituted abduction,
but in stabbing the peon the accused exceeded the right of private defence and
was guilty of culpable homicide not amounting to murder (n 1 )

What is to be proved by the defence 2— Where a person pleads the right
of self-defence it is not necessary to establish the fact conclusively ; all that should
be proved is, that the accused had grounds for believing that violence was intend-
ed by the assailant and that belief was under the circumstances such as any rational

(g) Mahomed Akbat , 24 Cr. L. J. 408 : 72 I. C. 520 : A. I. R. (1024) Lab. 227.

(h) Morzuddin, (1860) 11 W. R. 41 ; Ram Prosad Mahio , 4 P. L. J. 289 (1919)
Pat. Supp. 262 : 20 Cr. L. J. 408 : 50 I. C. 983.

(i) Rantzani , (1924) 23 A. L. J. 68.

(j) NgaKyaw Zan, (1903) 9 Bur. L. R. 191.

(k) Boak Singh, ((1923) 25 Cr..L. J. 625 : 81 I. C. 113 : A. I. R. (1925) Lah. 49;
Jagat Singh, (1923) 25 Cr. L. J. 155; Chhibil Das A. I. R. (1923) Lah. 172 (1)
Dalip Singh , A. I. R. (1923) Lah. 155 (2).

(l) Puran, (1904)^6 P. L. R. 49.

(m) Ramsewak, (1924) 23 A. L. J. 131.

(n) Jhokrj Chamar, (1912) 16 C. L. J. 440; 13 Cr. L. J. 905 : 17 1. C. 1001. See
Gossain, (1920) 18 A. L. J. 851 ; 21 Cr. L. J. 607 : 57 I. C. 175

(ni y Daroga Lohar, (1929) 32 Cr. L. J. 84.

152

THE INDIAN PENAL CODE

[ CHAP. IV

man may have entertained and he must further prove that the offence about to be
committed could not have been prevented by any other means (o). The burden
of proving the existence of circumstances bringing the case within any of the
general exceptions in this Code lies on the accused. This section gives the right
of private defence of the body only against actual assailants. It does not author-
ise the killing or causing of hurt to persons who may in the future when reinforced
by others become assailants. The right arises only on the occurrence of an offence,
or of an attempt to commit an offence, and as soon as a reasonable apprehension
of danger to the body arises from an attempt or threat to commit the offence,
though the offence may not have been committed (p).

Plea not raised : — Where there is evidence on the record to show that what
the accused did was in the exercise of the right of private defence the Court should
not ignore the evidence and convict him merely because he sets up a different
defence at the trial and denies having committed the assault (q).

In order to establish the right of private defence it is absolutely necessary
to detail the exact circumstances which led the accused to strike the blow in
question, obviously such a defence can seldom, if ever successful, be made out
when the accused’s case is that he did not strike the blow at all (r),

101. If the offence be not of any of the descriptions enu-
merated in the last preceding section, the

tenS Cn to SU c C a h usilg ht any ri § ht of P“ vate defence of the body does
harm other than death, not extend to the voluntary causing of
death to the assailant, but does extend, under
the restrictions mentioned in section 99 to the voluntary causing
to the assailant of any harm other than death.

This section naturally follows the last section and provides that harm short of
death subject to the restrictions mentioned in section 99 may be caused to the
assailant in cases where the offence is not of any of the descriptions mentioned
in the last section.

Where there was a dispute between two parties (the MoIIahs and Shikdars)
in which the Shikdars attacked and killed one of the MoIIahs when exercising
the right of retaking their own property, three of the Shikdars being also wounded,
the Shikdars were convicted of culpable homicide not amounting to murder and
rioting, held, that the accused were entitled to cause their assailants any harm other
than death in exercise of their right of private defence (s). Accused has a right
to defend a female member of his household from assault and when he was 1 sub-
sequently assaulted, held, he had a right to defend himself (t).

Misdirection in charge to the Jury Where there is a charge under
s. 326 of the Code against the accused, omission to refer to the provisions of this
section when accused pleaded the right of private defence has been held to be a
misdirection (u).

(o) Josef Casorati, (1879) P. R. No. 36 of 1879.

(p) Narain Das, (1922) 3 L. 144 : 4 L L. J. 91 : A. I. R. (1922) Lah 1: 68 I G.
113 ; 23 Cr L, J 513

(q) Ghulatn Rasul , (1921) 3 L. L. J. 284 : 22 Cr. L. J. 50 7 : 62 I. C. 331

(r) Ajgar Shaikh , (1928) 32 C. W. N. 839-48 C. L. J. 138.

(s) Tanoo Sikdar , (1865) 3 W. R. (Cr.), 47.

(t) Paran Sukh t (1925) 23 A. L. I. 1037 : 27 Cr. L. J. 11.

(u) Mohammad Yunus , (1922) 50 C. 318. •

RIGHT OF PRIVATE DEFENCE

153

SEC. 102]

102 . The right of private defence of the body commences
, as soon as a reasonable apprehension of

continuance of the right d&nger to the body arises trom an sit tempt

the P b^d tC dcfence of or threat to commit the offence though

e ° y the offence may not have been committed ;

and it continues as long as such apprehension of danger

to the body continues.

This section defines the commencement and continuance of the right of
private defence of the body as section 1 05, infra , deals with the same in defence of
property.

Reasonable apprehension of danger ' The right commences only on
a reasonable apprehension of danger to the body caused by an attempt or threat
to attempt to commit an offence (v). The legal right of private defence of the
body and property is not exceeded by a person who is attacked by another with a
spear, and who strikes a blow with a lathi which results in the death of the party
attacking, and such right of private defence of the body extends under section 100
to the taking of life where grievous hurt is reasonably apprehended (w). The
view that a person should not exercise his right of self-defence if by running
away he can avoid injury from his assailant places a greater restriction on the
right of private defence of the body than the law requires. The extent to which the
exercise of the right will be justified will depend not on the actual danger but on
whether there was reasonable apprehension of such danger (x).

The right of private defence is essentially a protective right. “A bare fear
of any offence, however well-grounded, as that another lies in wait to take away
the party's life unaccompanied by any overt act indicative of such an intention
will not warrant him in killing that other by way of precaution, there being no
actual danger at the time ” fy).

The firing of a gun at a distance of twentyfive yards, without a reasonable
apprehension of danger, and without any necessity for so doing, is not justifiable
by the right of private defence (z).

The right of private defence ends with the necessity for it s— ’ The right
ceases with the apprehension of danger.

Where a person, while a burglary was committed in his house, came out of his
house with a stick in his hand, saw two men close to the aperture made in the tatee ,
one of these men made off, and the other, the’deceased, advanced to attack the
prisoner, when the latter struck at him in the dark, held , that the right of private
defence commenced when a reasonable apprehension of danger to the property com~
menced and upon evidence it was found that there was no time to have recourse
to the protection of the public authorities and it could not be said that more
injury was inflicted for , the purpose of defence and the accused was acquitted of
the offence under section 304 (a). A person was held to have rightly exercised
the right of private defence when he used his gun after his party had been beaten
back, and when the ryots had actually trespassed upon the cutchery premises
in hot pursuit. He was protected by clause 2 of s. 100, and clause 4 of
s. 103 (b). f

(v) Gobardhan Bhuiya, (1870) 4 B. L. R. App. 101 : 13 W. R. (Cr.) 55; Narain
Das, (1922) 3 L. 144 : 23 Cr. L. J. 513.

(w) Moizuddin, 11 W. R. (Cr.) 41.

(x) AlingalKunhinan , (1905) 28 M. 454.

(y) 1 East. P. C. 272.

(z) Husainuddy , (1873) 17 W. R. (Cr.) 40.

(a) Pelkoo Nushyo , (1866) 2 W. R. (Cr.) 43.

(b) Ramlal Singh , (1874) 22 W. R. (Cr.) 51.

154

THE INDIAN PENAL CODE

[CHAP. IV

103. The right of private defence of property extends,
When the right of the restrictions mentioned in sec-

private defence of pro- tion W, to the voluntary causing of death

perty extends to causing ^ Q f any ot h er h arm to fa wrong-doer,

if the offence, the committing of which, or
the attempting to commit which occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enu-
merated, namely : —

First. — Robbery ;

Secondly. — House-breaking by night ;

Thirdly.— Mischief by fire committed on any building, tent
or vessel, which building, tent or vessel, is used as a human
dwelling, or as a place for the custody of property ;

Fourthly. — Theft, mischief or house-trespass, under circum-
stances as may reasonably cause apprehension that death or grie-
vous hurt will be the consequence, if such right of private
defence is not exercised.

Robbery — s. 390. House-breaking — s. 445.

Mischief — s. 425. House-trespass — s. 442.

Theft-s. 378.

Analogous law r— This section is analogous to s. 100. While s. 100 deals
with justifiable homicide in defence of body, this section deals with justifiable
homicide in defence of property. This rule is in accordance with the English
law which admits of a distinction between such offences as are attended with force,
or any extraordinary degree of atrocity which in their nature must be taken of such
urgent necessity as will not allow of any delay and others of a different sort if no
resistance be made by the offender (c).

A non-direction in the charge to the jury with regard to the right of the
accused under s. 103, is bad in law and vitiates the trial (d).

Robbery : — A villager is fully justified in firing at a dacoit where the dacoits
had come to commit a dacoity (e).

Theft f — Where the accused, not knowing in the dark, whether the burglar
was armed or not, did not exceed his right of self-defence under cl. (4) by causing
his death, held, his conviction under s. 304 must be set aside (f). It is not tlie
intention of the law that the right to defend property is bailable only when
the thief has already effected entry, for property may be protected by attacking
the thief inside the house as much as by preventing his entry info if (g).

Rioting and culpable homicide Where the prisoners in resisting a
sudden attack made upon them by certain persons who had come to forcihly cut
and take away their crops, and when they had no time to complain to the police,
inflicted a wound upon one of the other party from the effects of which the man
afterwards died, and they were convicted by the Sessions Judge under Ss. 148

(c) 1 East P. C. 2 73 ; Bull 9 C. & P. 22.

(d) Baseruddi, (1924) 28 C. W. N. 585 : 39 C. L. J. 625.

(e) Dhu Ram. (1928) 27 A. L. J. 148 (149).

(f) Ismail Khan. (1925) 6 L. 463 : A. 1. R. (1926) L. 28.

(g) All Mia, (1926) 43 C. L. J. 532 : 27 Cr. L. J. 1287 : A. I. R. (1926) C.4012 •

m also, Naraindas, (1922) 3 L. 144. 3 ' J v '

SEC. 104]

RIGHT OF PRIVATE DEFENCE

165

and 304, the High Court held that the force used and the injuries inflicted were
not such as to exceed the right of private defence (h).

House-trespass : — Where a pony belonging to a person strayed into the crop
and the ryots assembled in large numbers and attacked the owner of the horse
who took shelter in a cutchery which was then surrounded by the rioters, and on
assistance being called, one of his friends seeing the rioters enter the cutchery
premises brought out a loaded gun and as the ryots still continued to advance,
fired off both barrels, killing one man and wounding others, held, that the said
person was rightly exercising the right of private defence as contemplated in
clause 2, s. 100, and clause 4 of this section, though in the exercise of such right
he killed one of his aggressors (i).

Where plea of alibi was raised, but no evidence was adduced on behalf
of the defence to establish the elements which must be proved before s. 103 can be
made applicable, held , that the accused was within his right of private defence
but he had not proved facts bringing the case under s. 103 G)*

104 . If the offence, the committing of which, or the
attempting to commit which, occcasions

expends to a'using SJ [ he e*ercise of the right of private defence,
harm other than death, be thett, mischief, or criminal trespass, not
of any of the descriptions enumerated in
the last preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject to the res-
trictions mentioned in section 99, to the voluntary causing to the
wrong-doer of any harm other than death.

This section is connected with the last section as s. 101 is connected with
s. 100.

This section like s. 101 justifies causing of any harm short of killing. Under
both these sections (101 and 104) the Act which is forbidden is ‘the voluntary
causing of death.' This section can have no application by way of defence to a
charge under s. 504 (k).

Where the accused, whose property had been frequently stolen, went armed
with a lathi to watch his property, and with the lathi struck a thief who died
from the effects of the blow, it was held, having regard to the nature of the injuries
inflicted, and the subsequent conduct of the accused, that the case did not fall within
the 4th exception to s. 99, and that the prisoner was guilty of culpable homicide
not amounting to murder, he did not exceed the right of private defence (1). But
where A trespassed on the lands of B, whose servants seized and confined A till the
following morning, when B gave information to the police, it was held that the
conduct of B and his servants in thus confining A could not be excused on the
ground that they were exercising the right of private defence of property (m).
The villagers of C walked in procession to the public tank of the village K, drew
water purported to be consecrated therefrom in a pot and were bringing it back

(h) Gurucharan Chang, (1870) 0B. L. R. App. 9 : 14 W. R. (Cr.) 69. See also
Mitto Singh, (1866) 3 W. R. (Cr.) 41 ; Sachee, 7 W. R. (Cr.) 114; Rajkristo, 12
W. R. (Cr.) 43.

(i) Ramlal Singh , (1884) 22 VV. R. (Cr.) 61.

(j) Silajit Mahto , (1909) 36 C. 866.

(k) Rakhal Das Roy V. Kailash Banu, (1909) 11 C L. J. 113.

(l) Mokee, 12 W. R. (Cr.) 15 ; Goberdhun Pari , (1870) 14 W. R. (Cr.) 74.

(mj Shurofuddin V. Kasinath , (1870) 13 W. R. (Cr.) 65.

156

THE INDIAN PENAL CODE

[CHAP. IV

in procession along the high road when villagers of K obstructed the procession,
which obstruction the villagers of C resisted, and hurt was caused to the villagers
of K 9 it was held that the villagers of C had committed no offence (n). Where A
trespassed into B\ house with the object of having intercourse with B*s wife and
B and his friend C severely beat A, B was held justified under sections 104 and 96
in so acting and C was also acquitted, as having abetted the commission of some
act not amounting to an offence (o).

The right of private defence of person and property was not allowed to be
pleaded in a case where there was no fear of an assault such as is mentioned in
clauses of s. 100, supra , and where the accused used deadly weapons (spears) and
killed two unarmed persons whom they found ploughing land which the prisoners
believed to be theirs (p).

Where a head-constable, making an investigation into a case of house-breaking
and theft, searched the tents of certain gipsis for the stolen property, but discovered
nothing and after he had completed the search, they offered him some money which
he accepted and demanded more, and on their refusal to pay him more, he un-
lawfully ordered one of his subordinates to apprehend one of them and take away,
and thereupon the gipsis advanced with sticks and stones in a threatening manner,
but before any actual violence was used by the advancing gipsis, the head-constable
fired a gun at one of the gipsis who was about five paces from him and killed him ;
it was found that any apprehension that death or grievous hurt would be the con-
sequence of such crowd would have ceased had he released the gipsy, or effected
his escape, held , that the head-constable had not the right of private defence and
wes found guilty of culpable homicide not amounting to murder fq).

105. The right of private defence of property commences
Commencement and when a reasonable apprehension of danger

continuance of the right . f L.

of private defence of ^ property commences.

property.

The right of private defence of property against theft con-
tinues till the offender has effected his retreat with the property
or either the assistance of the public authorities is obtained, or
the property has been recovered.

The right of private defence of property against robbery
continues as long as the offender causes or attempts to cause to
any person death or hurt or wrongful restraint or as long as the
fear of instant death or of instant hurt or of instant personal re-
straint continues.

The right of private defence of property against criminal
trespass or mischief continues as long as the offender continues
in the commission of criminal trespass or mischief.

The right of private defence of property against house-
breaking by night continues as long as the house-trespass which
has been begun by such house-breaking continues.

This section is analogous to s. 102. In both the sections the right of defence

(n) Regula, (1902) 28 M. 249.

(o) Dhauman Teli, (1873) 20 W. R. (Cr.) 30.

(p) Gourchand, (1872) 18 W. R. (Cr.) 29.

(q) Abdul Hakim , 3 A. 253.

SEC. 105]

RIGHT OF PRIVATE DEFENCE

157

begins when a reasonable apprehension of danger commences and resistance within
the justifiable limits may be continued so long as the wrongful act is going on.

Clause 1 : — This clause must be read with the third clause of s. 99,
supra (r). For reasonable apprehension of danger see notes on s. 102, supra .

Clause 2 Till the offender has effected his retreat with the pro-
perty/ The Law Commissioners objected to the expression in the clause,

‘ till the offender has effected his retreat with the property.’ They said : “ We are
not sure of the meaning intended by this expression. We know not certainly
when he is to be considered as having effected his retreat, probably it is when he
has once got clear off, having escaped immediate pursuit, or pursuit not having
been made, but the meaning should be made certain by an explanation or
illustration.

“ We presume that the protection of parties pursuing robbers, etc., for . the
recovery of property which they have succeeded in carrying off, or for bringing
them to justice, was thought not to be within the scope of the provisions touching
the right of private defence ” (s). It was finally suggested that “ the privilege of this
clause should be extended to operate till the offender is taken and delivered to an
officer of Justice” (t).

‘or the property has been recovered* This section lays down up to
what time it is lawful for a person to use force in defence of property. The second
clause describes that defence of property against theft lasts till the offender has
effected his retreat with the property, or either the assistance of the public author-
ities is obtained, or the property has been recovered. Now the recovery of the
property is the sole object of the right of private defence under this clause and that
the use of force should cease as soon as th?t object is achieved.

Under this section, as soon as the offender has effected his retreat with the
property, no right of private defence of that property against theft subsists, but
that until the offender has so completed his retreat, the right of private defence
of that property continues until the property has been recovered, i.e., during the
retreat of the offender, or until the assistance of the public authorities is
obtained (u).

Mayne in his valuable commentary says : ” Resistance, within the justifiable
limits, may be continued so long as the wrongful act is going on. But when the
robber, for instance, has made his escape, the principle of self-defence would not
extend to killing him if met with on a subsequent day. If, however, the property
were found in his possession, the right of defence would revive for its recovery.
It by no means follows, however, that the right would revive to the same extent as
it formerly existed at the commission of the original offence. Only such violence
is lawful as would be justifiable against a person who has stolen property without
intimidation ; and if he resists by means of which it creates no apprehension of
death or grievous hurt, he cannot be killed by virtue of anything contained in these
sections. This is the ground of the distinction drawn in explanations 2 and 3
between theft and robbery ; what is meant is that the right of defence against
robbery as such only lasts as long as the robbery. While the fear of death, hurt or
wrongful restraint which causes theft to grow into robbery (s. 390) continues, the
offender may be killed. But when he takes to his heels with the booty, the robbery
is over, and the right of defence is reduced to what would have been admissible
against a pick-pocket. A similar remark applies to explanation 5 ” (v).

(r) Narsang Pathdbhai , (1890) 14 B. 441.

(s) First Report, s. 158.

(t) First Report, s. 158.

(u) Mir Dad , (1025) 7 L. 21 : A. I. R. (1928) L. 74.

(v) Mayne, Criminal Law of India, 3rd Ed., p. 480.

158

THE INDIAN PENAL CODE

[CHAP. IV

Clause 4: — Where land in the possession of A was encroached on
by the servants of B who committed and resisted the encroachments, the High
Court declined to interfere with the magistrates order convicting the servants of
unlawful assembly, as there was no error in law in the order of the magistrate, who
found as a fact that the right of defence of private property has ceased under this
clause. The magistrate in that case found that the mischief which the prosecutor’s
party were alleged to have committed had been completed before the accused formed
into members of an assembly to protect their right (w). The complainant’s
party consisting of twelve or thirteen persons went with kpdalis to a bund erected
on the land of the master of the accused in order to cut it as it obstructed the flow
of their lands and destroyed their crops and the accused numbering from 50 to 60
armed with lathis proceeded to the bund. At this time the complainant’s party
had either finished the cutting or ceased to do so, but the accused attacked the com-
plainant’s party and fractured the sfyill of one of them who died shortly after,
held , that the accused were members of an unlawful assembly from the beginning
as they went armed with lathis to enforce their right and they had no right
of private defence when the complainant's party had ceased cutting the
bund (x).

Clause 5 : — Mayne says : “ The right of defence against house-breaking as
such only lasts so long as the house-trespass continues, that is, so long as the criminal
is within the building (s. 442) . It would appear that if he died of a shot fired at
him after he had effected his escape from the house, this would be an unlawful
killing, though if he did not die, but was maimed for life, it would be all right " (y).

The right of private defence of property against house-breaking by night con-
tinues only so long as the house-trespass which is begun by house-breaking con-
tinues under this clause (z).

Misappropriation and receiving stolen property : — The offences punish-
able under Ss. 403 and 411, infra , are now exceptions to the right of defence of
property, but in such cases the burden is on the accused to show why he could not
find time to have recourse to the authorities (a).

106 . If in the exercise of the right of private defence against
an assault which reasonably causes the
apprehension of death, the defender be so
situated that he cannot effectually exercise
that right without risk or harm to an inno-
cent person, his right of private defence
extends to the running of that risk.

Right of private de-
fence against deadly
assault when there is
risk of harm to innocent
person.

Illustration .

A is attacked by a mob who attempt to murder him. He cannot effectually
exercise his right of private defence without firing on the mob, and he cannot fire
without risk of harming young children who are mingled with the mob. A commits
no offence if by so firing he harms any of the children.

This section should be read subject to s. 100.

(w) Raj Kristo Das, ( 1 869) 12 W. R. (Cr.) 43.

(x) Ambiha Lai, (1908) 35 C. 443.

(y) Mayne, Criminal Law of India, 3rd Ed., p. 401.

(z) Balaku Jalahed, (1868) 10 W. It. (Cr.) 9 (10).

(a) Jarha V. Surit Ram, 3 N. L. It. 177 ; Contra Agra, (1914) P, R. No, 37 of
19)4 ! 27 I. C. 833.

SEC. 107 ]

OF ABETMENT

159

CHAPTER V.

Of Abetment.

This chapter applies to offences punishable under Ss. 121 -A, 124-A, 225-A,
225-B, 294-A and 304-A (b).

Abetment of a thing. 10 J* A P erSOn abetS the d ° in » ° f a thin g’

who —

First . — Instigates any person to do that thing ; or,

Secondly . — Engages with one or more other person or per-
sons in any conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that conspiracy, and
in order to the doing of that thing ; or,

Thirdly . — Intentionally aids, by any act or illegal omission,
the doing of that thing.

Explanation 1. — A person who, by wilful misrepresenta-
tion, or by wilful concealment of a material fact which he is bound
to disclose, voluntarily causes or procures, or attempts to cause
or procure, a thing to be done, is said to instigate the doing of
that thing.

Illustration .

A , a public officer, is authorised by a warrant from a Court of Justice to appre-
hend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that
C is Z , and thereby intentionally causes A to apprehend C. Here B abets by instiga-
tion the apprehension of C.

Explanation 2. — Whoever, either prior to or at the time of
the commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the commission
thereof, is said to aid the doing of that act.

Analogous law : — This chapter deals with the offence of abetment, or in
the language of the English law, with what is known as an accessory before the
fact.

Scope : — This section does not contemplate the abettor being present when
the abetted criminal act or offence is committed. The aid given at the time of
commission referred to in explanation 2 seems to mean aid given at the time but
at such a distance from the scene that the abettor cannot be said to be present. It
may be said that instigation and conspiracy must occur before the offence, even if,
in the case of instigation, it is only just before. But abettors by these modes seem
to be thought of as separated from the commission of the offence not only by time,
but also by place. Abetment is not thought of as coincident with the offence. If
the general term 'abettors* included accessories at the fact, explanation 2
would be superfluous * (c).

Now under the English law accessories were divided into three classes : (i) acces-
sories before the fact ; (it) accessories at the fact ; and (if i) accessory after the fact.

(b) See the Indian Penal Code Amendment Act, 1870 (XXVII of 1870), s. 13, as
amended by the Amending Act, 1891 (XII of 1891).

(c) Per Richardson, J., in Barendra Kumar Ghose, (1923) 28 C. W. N. 170
214, 215,)

THE INDIAN PENAL CODE

160

[CHAP. IV

Besides these the English law recognises in felony two classes of accused : (I) princi-
pals in the first degree and (2) principals in the second degree (d).

Russel makes the following classifications (e) : —

A. Principals in the first degree. — 1 . Principals in the first degree are
those who have committed the act with their own hands or through an innocent
agent whether the act be a complete crime or an intention to commit crime.

2. In treason and in misdemeanour all persons participating are liable as
principals.

B« Principals in the second degree : — Principals in the second degree
are those who were present , aiding and abetting at the commission of a felony. They
are often termed aiders and abettors , and sometimes accomplices, but the latter
appellation will not serve as a term of definition, as it includes all the participes
criminis whether they are considered in strict legal propriety as principals in the
first or second degree, or merely as accessories before or after the fact (f).

Presence — actual or constructive : — A person may be a principal in the
second degree in felony even if by reason of age or sex he is physically incapable
of being a principal in the first degree (g).

C. Accessories before the fact : — An accessory before the fact is he who,
being absent at the time of the offence committed, procures, counsels, commands,
or abets, another to commit a felony (h). It is not used with reference to high
treason (i).

D. Accessories after the fact : — An accessory after the fact is a person
who, knowing a felony to have been committed by another, receives, relieves, com-
forts, or assists the felon (j), i.e., in the case of murder by assisting the murderer
to conceal the death or to evade pursuit of justice (k).

In England under Statutes 1 1 and 12, Viet. c. 46, such persons may be indicted,
tried, convicted and punished, in all respects as if he were a principal felon (1).

E. Accessory at the fact : — They are usually classified as principals of the
second degree, i.e., aiders and abettors who are actually or constructively present
at the scene of the offence. The early writers did not know of the distinction
between principals of the first and principals of the second degree (m).

Richardson, J., in Barendra Kumar s case observed : — “A principal in the second
degree (I) must be present at the commission of the act, and (2) he must be aiding
and abetting. The older and perhaps better term ‘ accessory at the fact * implies
both elements. But if this term be employed, it has to be remembered that the
person so described is in English law a principal. ”

An accessory before the fact is under the Code an abettor and is dealt with
in the chapter on abetment (n).

The definition of abetment here given applies to all Acts passed by the
Government of India (o).

Elements of the section : — A person abets (I) by instigating any person
to commit an offence, (2) by engaging in a conspiracy to do it, (3) by intentionally
aiding in the doing of it (p).

(d) Foster, Crown Law, 347.

(c) Russel, 8th Ed., Vol. I, p. 109.

(f) Foster, 341.

(g) 1 Hale, 030.

(h) 1 Hale, 015.

(i) 2 Hawk, C. 29, Ss. 2, 5.

(i) 1 Hale, 618 ; 4 Blackstone Commentary 37.

(k) Greenacre, (1837) 1 C. & P. 35.

(l) 2 Hale, 45.

(m) Foster, 347.

(n) (1923) 28 C. W. N. 170 at p. 211.

(o) General Clauses Act (X of 1897) Ss. 3 (1), 4 (2),

(p) Morgan and Macpherson, p. 83.

SEC. 107 ]

OF ABETMENT

161

To constitute abetment there must be under s. 107 either (I) instigation,
(2) conspiracy, or (3) actual aid either by an act or an illegal omission (cj).

First clause : — Abetment by instigation . — According to Mayne, 4 A person
instigates a crime who incites or suggests to another to do it or who impresses upon
his mind certain statements, whether true or false, with the intention of inducing
him to commit a crime. (S. 107, explanation (l) M (r).

The word 4 instigate * means urge on, incite, bring about by persuation,
provoke (s). Instigation necessarily connotes some active suggestion, support,
or stimulation, to the commission of the act itself (t). Where persons'of influ-
ence were cognisant of the object cf the members ofan unlawful assembly and
deliberately absented themselves from the locality, held \ such conduct did
not amount to instigation within the definition of abetment (u). So
far as the meaning of the word 4 instigation * in this section is concerned, there
may be instigation of an unknown person (v). Not only a misrepresentation but
also wilful concealment of a material fact which a person is bound to disclose consti-
tutes an abetment by instigation (s. 107, explanation 1). The illustration under
the explanation I is an example of instigation by wilful misrepresentation.

The offence of abetment by instigation is complete as soon as the abettor
has incited another to commit a crime, whether the latter consents or not, or
whether having consented, he commits the crime. It is immaterial whether the
instigation be personal or through a third party (w). It must be proved that the
accused instigated the commission of the offence, but it is immaterial whether the
instigation be personal or through the intervention of a third person (x).

Instigation may be direct — by hire, counsel, command or conspiracy, or
indirect — by evincing an express liking or assent to another’s design of committing
an offence (y). But the mere refraining to dissuade a person from the commission
of a crime which he is contemplating, or even passively acquiescing in the idea,
or mere words that amount to a bare permission will not be sufficient to prove
abetment by instigation. “ As if A say to B, (I will kill C) and B, say 4 you may do
your pleasure for me/ it will not make B accessory of A in his murder of C ” (z).
It has been held»that where no definite orders are given, there is a no abetment (a).

There must be an active proceeding on the part of the accused ; he must pro-
cure, incite, or in some other way encourage, the act done by the principal. There-
fore, where the accused acted as a stake-holder on the occasion of a prize-fight, which
ended in the death of one of the fighters, but was not present at the fight and he
had otherwise nothing to do with the fight and had no reason to suppose that the
life of either man fighting with their fists would be endangered ; he was indicted
as an accessory before the fact to the manslaughter but was acquitted. Cock-
burn, C. J., in delivering jndgment observed : “ To support an indictment for being
accessory before the fact to manslaughter, there must be an active proceeding on the
part of the prisoner. He is perfectly passive here, all he does is to accept stakes ” (b).

(i|) Chanda , (1924) 85 I. C. 150 (All.).

(r) Mayne, Criminal Law of India, 3rd Edn., p. 470.

(s) Laksmi Narayan Aiycr, (1917) M. W. N. 831 : 22 M.L. J. 373 : 19 Cr. L. J. 29 :
42 I. C. 989.

(t) Naghunath Das, 5 P. L. J. 129, followed in Nazir Ahmed t (\§20) 25 A. L. J. 149.

(u) Etim AH Majumdar , (1900 ) 4 C. W.N. 500.

(v) Gonesh Damodar Saryarakar. (1909) 34 13. 394 : 12 Bom. L. R. 105: 5 I. C.

854.

(w) Thala Aing , (1906) 12 Bur. L. R. 70.

(x) Foster’s Crown Law, 125 ; Earl of Summerset , (1630) 2 St. Tr 804.

(y) 2 Hawk, P. C. c. 29, s. 16.

(z) 1 Hale, P. C. 616.

(a) Luckntan Singh. (1904) 31 C. 710.

(b) Taylor, (1875) L. R. 2 C. C. R. 147,

17

162 THE INDIAN PENAL CODE [ CHAP. V

In its lowest form instigation may amount to a mere encouragement given in
words or by conduct (c).

Instigation connotes some active suggestion or support or stimulation to the
act itself. Advice per se necessarily does not amount to instigation (d).

Where the defendant inserted, in a newspaper of which he was the editor,
advertisements which, though not obscene in themselves, related, as he knew, to the
sale of obscene books and photographs, the defendant was convicted on an
indictment charging him with causing and procuring obscene books and photo-
graphs to be sold and published and to be sent by post contrary to the Post Office
(Protection) Act, 1884, s. 4 (e).

To constitute the offence of abetment it is not necessary that the act abetted
should be committed (0*

Limits of liability : — The general rule is that abettors suffer the same punish-
ment as their principals ; if one be liable to death, the other is also liable to death (g).

The offence of abetment depends upon the intention of the person who abets,
and not upon the act actually done by the person whom he abets (h). A person
instigating one offence crnnot be held responsible for the commission of
an offence wholly different from what he had instigated (i). Thus, if A command
B to burn C*s house, and he in so doing commits a robbery in which case A , though
an abettor of the burning is not an abettor of the robbery (j). But under
sections 111 and 113, infra , an abettor is liable for any act or effect which
would naturally occur in the course of carrying out the act and the abettor
would be liable if the person abetted does the act with different intention or
knowledge and the abettor is also liable to punishment if the person abetted commits
a distinct offence in addition to the act abetted.

Where A ordered B and C to seize and forcibly take D in the contemplation
of an assault upon D, and D was so beaten and tortured as to have died in conse-
quence, held , that A was guilty at least of abetting the commission or voluntarily
causing grievous hurt (k).

Second clause i— Abetment by conspiracy : — “ A conspiracy consists not
merely in the intention of two or more ; but in the agreement of two or more to do
an unlawful act, or to do a lawful act by unlawful means. So long as such a design
rests in intention only, it is not indictable. When two agree to carry it into effect,
the very plot is an act in itself, and the act of each of the parties, promise against
promise, actus contra actum , capable of being enforced, if lawful, is punishable,
if for a criminal object or for the use of criminal means. And so far as proof goes,
conspiracy, as Groose, J., said in Rex v. Brisac (1), is generally ‘.matter of inference
deduced from, some criminal act of the parties accused, done in pursuance of an
apparent criminal purpose in common between them. The number and the com-
pact give weight and cause danger ’’ (m).

Explanation 5 to s. 108 should also be read along with this clause.

" It is not necessary that all conspirators should be in communication with
each other or even that they should know of each other’s existence (see illustration

(C) Baldev Sahai , 2 A. 253.

(d) Raghunath Das, (1920) 6 P. L. J. 129 : 21 Cr. L. J. 213 : 54 I. C. 997. See
Mihan Singh, (1923) 5 L. 1 (9).

(e) De Marney, (1907) 11. K. B. 388. *

(f) Exp. 2, s. 108, infra ; Troylukho, (1 878) 4 C. 368.

(g) 4 Blackstone, 37.

(h) Imandi Bkooyah , 21 W. R. (Cr.) 8.

(i) Foster’s Crown Law, 369.

(j) 1 Hale 617.

(k) Doorasewar Sumtah, (1867) 7 W. R. (Cr.) 61 ; see zteotMathura Das, 6 A. 491.

(l) Brisac , (1803) 4 East., 164 (171).

(m) Per Willes, J., in Mulchay , (1868) L. R, 3 H. L. 306 (317).

SEC. 107]

OF ABETMENT

163

to explanatjpn 5, s. 108). So long as the conspiracy rests in mere plotting, it
does not amount to an abetment under s. 107, cl. 2. Some act or illegal omission
must take place in pursuance of that conspiracy, and in order to the doing of that
thing '* (n).

A mere conspiracy is not punishable as an abetment, and it would appear
that if conspirators were detected before they had done nothing beyond discussing
plans with an intention to commit an offence, they would not be liable as abettors (o).

Conspiracy consists in a combination and agreement by persons to do some
illegal act or to effect a legal purpose by illegal means, and the conspiracy is^om-
plete, if two or more than two should agree to do an illegal thing.

Where it is shown that there is a reasonable ground to believe that two or more
persons have conspired together to commit an offence, anything said, done or
written by any one of such persons in reference to their common intention may be
proved both tor the purpose of proving the existence of the conspiracy as also for
showing that any such person was a party to it.

Conspiracy is not a substantive offence in India, but is incorporated in the law
of abetment of offence.

In order to constitute the offence of abetment by conspiracy there must be a
combining together of two or more persons in the conspiracy, and an act or illegal
omission must take place in pursuance of that conspiracy and in order to the doing
of that thing. It is not necessary that the act abetted should be committed, or that
the effect requisite to constitute the offence should be caused. Nor is it necessary
that the abettor should concert the offence with the person who commits it. It is
sufficient, if he engages in the conspiracy in pursuance of which the offence is
committed (p).

Distinction between the English law and the Indian law. Liability
for acts done by one of the parties to a conspiracy : —The rule of law is
where several persons are proved to have combined together for the same illegal
purpose, any act done by one of the parties in pursuance of the original concerned
plan, and with this reference to the common object, is, in the contemplation of the
taw, the act of the whole. Each party is an agent of the other in carrying out the
object of the conspiracy, and doing anything in furtherance of the common de-
sign. This was determined in England in the case of Rex v. Bows and Scoff, 4
East, 176, and the law has been the settled law in England. It rests upon a prin-
ciple which is equally applicable in this country (q).

In English law it suffices if the combination exists and is unlawful, because
it is the combination itself which is mischievous and which gives the public an
interest to interfere by indictment. Nothing need be actually done in furtherance
of it (r). But the Indian law requires that a mere combination is not enough
but something should be done in furtherance of it.

A conviction for conspiracy cannot stand when the charge against the other
alleged conspirators has failed (s).

It was held in the case of Jogjiban Ghosh (t) that when a bomb was found in a
haitakkhana ghar in a house to which all the members of the family had access, it could
not be held that any particular member was in possession of the bomb.

(n) Mayne, ‘Criminal Law of India', 3rd Ed., pp. 473, 474.

(o) SherAli, (1879) P. R. No. 18 of 1870.

(p) Kalil Munda, (1001) 28 C. 797.

(q) Ameer Khan , (1871) 17 W. R. (Cr.) 15 (16) : 0 Beng. L. R. 36.

(r) Per Coleridge, C. J., in Moghul Steamship, Co. V. McGregor , (1888) 21
Q. B. D. 544, approved in Whitchurch, (1890) 2*4 Q. B. D. 420 ; See also, Mulhay,
(1868) L. R. 3 H. L. 306 (317).

(s) R. V. Plummer , (1002) 2 K. B. 339.

(t) (1909) 9 C. L. J. 663.

164

THE INDIAN PENAL CODE

[CHAP. V

Suttee : — In order to charge a person under this clause it must l}e shewn that
he had been engaged in the conspiracy. Thus, where a woman prepared herself
for a suttee in the presence of the prisoners who had followed her to the pyre, and
stood by her, one of them, her step-son, crying “ Ram-Ram,” and another told the
deceased to repeat “ Ram-Ram “ and she would become a sutteg, it was held to be
a sufficient connivance and countenance on the part of the accused to justify the
Court to infer that they had all engaged with her in a conspiracy for the commission
of the suttee (u).

It is not a good defence to a charge of abetting the suicide of a Hindu widow
who Immolated herself on her husband’s funeral pyre, to show that the abettors are
in fact expecting a miracle and did not anticipate that the pyre would be ignited
by human agency (v).

The test of guilt in charges of abetment must always be whether having regard
to the immediate object of the instigation or conspiracy, the act done by the princi-
pal is one which according to ordinary experience and common sense the abettor
must have foreseen as probable (w).

Procuring abortion A woman, who believing herself to be with child, but
not being with child, conspires with other persons to administer drugs to herself,
or to use instruments in herself with intent to procure abortion, is liable to be con-
victed of conspiracy to procure abortion (x).

Third clause Abetment by intentional aid.— The third mode of abet-
ment is by intentionally aiding the commission of an offence either by an act or
illegal omission. Explanation 4 must be read along with this clause. “Mere
intention not followed by any act cannot constitute an offence, and an indirect pre-
paration, which does not amount to an act which amounts to a commencement
of the offence, does not constitute either a principal offence, or an attempt or abet-
ment of the same ’* (y). The intention should be to aid an offence or to facilitate
the commission of an offence (z).

Mere presence at an illegal marriage would not constitute abetment on the
part of the person present, nor would the grant of accommodation in a house for
marriage, which could equally well be celebrated elsewhere, be such an act towards
facilitating the marriage as would constitute abetment (a).

A debtor paid a sum of money to his creditor and accepted from the latter an
unstampted receipt, promising to affix asjampt thereto ; upon this the accused
accepted a receipt without a stamp and pr&ti&ed himself to affix one. The only
question was whether he illegally omitted to do anything which he was bound by
law to do, it was held that this did not constitute abetment (b). Where persons
cf influence being aware of the object of the members of an unlawful assembly
deliberately absented themselves from the locality and the Sessions Judge inferred
therein that their sympathy amounted to instigation , it was held that this did not
amount to abetment under this section (c).

If the act was done intentionally to assist and it had that effect, the person so
doing is unmistakably an abettor. As Bramwell, B., told the Jury : “ Suppose

(u) Mohit Pandey, (1871) 3 N. W. P. II. C. R. 316 ; Ram Dial, (19137 11 A. I J.

997.

(v) Vidyasagar Vande, (1928) 8 P. 74.

(w) Mathura Das, (1884) 6 A. 491.

(x) Whit Church, (1890) 24 Q. B. D. 420.

(y) Per Ranade, J., in Baku, 24 B. 287 (291).

(z) Ramnath, (1924) 47 A. 268 (275) : 22 A. L. J. 1106 (1112), followcdin Shevanli ,

A. I. R. (1928) Nag. 257. *

(a) Umi, (1881) 6 B. 126.

(b) Mithu Lai, (1885) 8 A. 18 ; Janki, <1872) 7 B. 82.

(c) Etimali Majumdar , (1900) 4 C. W. N. 500,

SEC. 107 ]

OF ABETMENT

165

two men go out together, and one of them holds a third man for the purpose of
enabling his companion to cut that man's throat, and his companion does so, no
one could doubt that they were both equally guilty of murder " (d). So, in theft,
the servant opening the door to let in thieves intentionally aids them so as to become
an abettor (e). Accomplices standing at a distance to help thieves in conveying
the property are abettors if they took no part in theft and were at syjch distance
from the scene of offence as not to be able to assist in it (f). In another case where a
person stole a horse and another assisted him in colouring and disguising it, he
was held to be an accessory (g).

Explanation 1 : — An omission to give information that a crime haa been
committed does not, under $.107, amount to abetment, unless such commission
involves a breach of a legal obligation (h). A person can be convicted of abetment
of theft under* the 1st explanation of this section, only if he either procures or
attempts to procure the commission of the theft. Mere subsequent knowledge
of the offence is insufficient (i).

Explanation 2. — Abetment by giving facility : — Where A gave a dao to
B, who had given out his intention to coerce the party against whom he was acting
and who inflicted grievous hurt on such party with the (sharp) dao , A was held
guilty of abetment in the commission of the act (j). So where a certain Namqhur
(a village authority) suspecting a woman to be big with child ordered two of the
accused to seize her and take her to the house of the zemindar to account for it and
the accused said that they would have to beat her to make her confess and they,
thereupon, seized and tortured her till she died, it was held that the Namghur's
act in ordering her seizure had facilitated the crime and that he was therefore liable
as an abettor within the meaning of Explanation 2 (k).

But if no definite orders are given, there will be no abetment (1). So,
where a theft had been committed in the house of the zemindar of a village
and a report was made to the police and the zeminder lent a house belonging to
him to the Sub-Inspector of Police conducting the investigation and it was found
that he knew at the time of lending the house that it was likely that illegal pressure
would be put upon persons suspected of complicity in or knowledge of theft, and
it appeared that the accused zeminder was at times present when the torture was
going on, it was held that the giving of the house and its use by the Sub- Inspector
allowed facility for the commission of the act so as to amount to abetment of the
offence under section 330, within the meaning of the explanation (m).

The supplying of necessary food to a person known to be engaged in crime
is not per se criminal ; but if food were supplied in order that the criminal might
go on a-journey to the intended scene of the crime, or conceal himself while wait-
ing for an opportunity to commit the crime, the supplying of food would be in
order to facilitate the commission of the crime and might facilitate it (n). It is
settled that mere presence at the commission of a crime is not an abetment of it,
if the person present has no authority to interfere (o). But if the person present

(d) Jackson, 7 Cox. C. C. 357.

(e) Per Coleridge, J., in Tticktvell, C. & M. 215.

(f) Kelly , R. ft R. 421.

(g) Per William, J., in Lee, 0 C. & P. 536.

(h) Khadim Shaik , (1869) 4 Beng. L. R. App. Cr. 7.

(i) Shumeruddin , (1865) 2 W. R. (Cr.) 40.

(j) Eshan Meah , (1869) 12 W. R. Cr. 5&

(k) Doorgeswar Sarnia , (1867) 7 W. R. Cr. 61.

(l) Lrnhman Singh , (1904) 31 C. 710.

(m) Faiyaz Hussain , (1896) A. W. N. 19l.

(n) Lingan Ramanna , (1880) 2 M, 137.

(o) Shidlingappa , (1896) Rat. unr^p. Cr. C. 844.

166

THE INDIAN PENAL CODE

[ CHAP. V

holds some position of rank and influence so that his countenancing what takes
place y may, under the circumstances, be held a direct encouragement, it may amount
to an abetment (p). Where the principal offence fails, offence of abetment by
presence fails (q).

Illegal omission : — In the case of abetment by illegal omission, it must be
shown that the accused intentionally aided the offence by his non-interference (r).
Abetment by omission would only be punishable if the omission were an illegal
one (s). Where a head-constable, who knew that his subordinates were about
to torture a prisoner, left the place, it was held that he was guilty of abetment ($’)•
A policeman, who stands by and does nothing to prevent a person being tortured
by another, is guilty of abetment in the same manner as if he had actually committed
it (t). The same responsibility lies with Magistrates and guardians of peace (u).

108. A person abets an offence, who abets either the com-

Abettor mission of an offence, or the commission of

an act which would be an offence, if committed
by a person capable by law of committing an offence with
the same intention or knowledge as that of the abettor.

Explanation 1. — The abetment of the illegal omission of
an act may amount to an offence although the abettor may not

himself be bound to do that act.

Explanation 2. — To constitute the offence of abetment, it
is not necessary that the act abetted should be committed, or that
the effect requisite to constitute the offence should be caused.

Illustrations .

{a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B
to commit murder.

(6) A instigates B to murder D. B in pursuance of the instigation stabs I).
D recovers from the wound. A is guilty of instigating B to commit murder.

Explanation 3. — It is not necessaiy that the person abetted
should be capable by law of committing an offence, or that he
should have the same guilty intention or knowledge as that of
the abettor, or any guilty intention or knowledge.

Illustrations.

(a) A, with a guilty intention, abets a child or a lunatic to commit an act which
would be an offence, if committed by a person capable by law of committing an offence,
and having the same intention as A. Here A, whether the act be committed or not,
is guilty of abetting an offence.

(b) A, with the intention of murdering Z, instigates B, a child under seven years
of age, to do an act which causes Z's death. B, in consequence of the abetment,
does the act in the absence of A and thereby causes Z's death. Here, though B

(p) Lakshmi, (1886) B. U. C. 303.

(q) Raja Khan, (1920) 32 C. L. J. 478.

(r) Khajah Karul, Hossain V. Fabre Tonnerre, (1875) 24 W. R. (Cr.) 26.

(s) Kalicharan Ganguly , (1873) 21 W. ft. Cr. 11.

(si) Mt. Shwanli, A. J. R. (1928) N. 257 following Covcrji, (1907) 9 Bom. L. R.
69 and Rdmnath, 47 A. 268 (2<»*>) : A.J. R. (1925) A. 230 and 'Nwtchaiul %Tukhcrjfe 20
(Cr.) 41.

(t) LatifKhan, (1895) 20 B. 394.

(u) Appanne Hrgah. (18519) 1 Weir *52 ; Krishna Setti, (1891) 1 Weir 50.

SEC. 108]

OF ABETMENT

167

was not capable by law of committing an offence, A is liable to be punished in the
same manner as if B had been capable by law of committing an offence. and had
committed murder, and he is therefore subject to the punishment of death.

(c) A instigates B to set fire to a dwelling-house. B t in consequence of the
unsoundness of his mind, being incapable of knowing the nature of the act, or
that he is doing what is wrong or contrary to law, sets fire to the house in consequence
of A’s instigation. B has committed no offence, but A is guilty of abetting the offence
of setting fire to a dwelling-house, and is liable to the punishment provided for that
offence.

(d) A, intending to cause a theft to be committed, instigates B to take pro-
perty belonging to Z out of Z's possession. A induces B to believe that the property
belongs to A. B takes the property out of Z's possession, in good faith, believing
it to be A’s property. B, acting under this misconception, docs not take dishonestly,
and therefore docs not commit theft. But A is guilty of abetting theft, and is liable
to the same punishment as if B had committed tlicft.

Explanation 4. — The abetment of an offence being an
offence, the abetment of such an abetment is also an offence.

Illustration.

A instigates B to instigate C to murder Z. B accordingly instigates C to murder
Z, and C commits that offence in consequence of B’s instigation. B is liable to bo
punished for his offence with the punishment for murder ; and. as A instigated B
lo commit the offence, A is also liable to the same punishment.

Explanation 5. — It is not necessary to the commission of the
offence of abetment by conspiracy that the abetter should concert
the offence with the person who commits it. It is sufficient if he
engage in the conspiracy in pursuance of which the offence is
committed.

, Illustration.

A concerts with B a plan for poisoning Z. It is agreed that A shall administer
the poison. B then explains the plan to C, mentioning that a third person is to ad-
minister the poison, but without mentioning A’s name. C agrees to procure the
poison, and procures and delivers it to B for the purpose of its being used in the
manner explained. A administers the poison ; Z dies in consequence. Here, though
A and C have not conspired together, yet C has been engaged in the conspiracy in
pursuance of which Z has been murdered. C has therefore committed the offence
defined iii this section, and is liable to the punishment for murder.

Person — $.11 Abetment— s. 107

Offence— s. 40 Act— s. 33

This section defines an * abettor ’ whereas the last section defines the abetment
of a thing. A thing may or may not be an offence. If it is an offence, the person
abetting the offence is an abettor under this section. Under explanation 3 of
this section, even, if the thing is not an offence because the person abetted is in*
capable of committing an offence, still the person abetting its commission is an
abettor. Kit if it is not an offence at all then the person abetting its commission
is not an abettor.

Difference between English law and Indian law : — This section is
based on the English law with this difference that under the English law a person
employing an innocent agent is regarded as a principal, in India he still remains
an abettor although the person abetted, was a mere tool in his hands. (Explana-
tion 3).

Commission of an act:— The Code does not recognise accessories after
die fact as abettors. Where, for instance, a person draws a false charge against
another, the offence is ‘complete and persons supporting such a charge by wise

168 THE INDIAN PENAL CODE [ CHAP, V

evidence cannot be tried as abettors not for their previous acts, but for having
given their evidence subsequently in support of the charge (v).

Explanation 1 : — This explanation relates to the same person and shows
that he may be guilty as an abettor although as a principal he may be innocent.
For instance, where a private person instigates a policeman to omit to do his duty.
Here, the policeman is guilty of an illegal omission and therefore of an abetment
of the offence committed in his presence and the private person is guilty of an
abetment, though h6%4$ not himself bound to do the act which, it was the duty
of the police-officer to do. To prove abetment under section 107 by* illegal omis-
sion * it would be necessary to show that the accused intentionally aided the com-
mission of the offence by his non-interference (w).

Explanation 2, — Act or effect need not be caused: — As was remarked
under notes to section 107, clause 1 , it was held by the Calcutta High Court as such :
“The offence of abetment by instigation depends upon the intention of the person
who abets, and not upon the act which is actually done by the person whom he
abets “ (x). A sought the aid of B with the intention of committing a theft of the
property of B's master. B, with the knowledge and consent of his master, and
for the purpose of procuring A's punishment, aided A in carrying out his subject.
On the prosecution of A for theft, it was held by the High Court of Calcutta that
as the property removed was so taken with the knowledge of the owner, the offence
of theft had not been committed and it was further held that it is not necessary
to an indictment for the abetment of an offence to show that such
offence was actually committed (y). The Bombay High Court in Dinshas case
held that it would not be an abetment of murder in a case where a person instigated
another to murder by sorcery or other like means (z), but the Punjab Chief Court
has held in a considered judgment that abetment is complete even if it is physically
impossible to produce the effect by the means suggested (a).

Explanation 3.— Agent may be innocent This explanation does not
make any distinction between a principal who is innocent and another who is
guilty. In either case the offence of the abettor becomes the same (b). In Eng-
land, the former would be regarded as an agent, and the abettor, as the principal.
In India, he is punished as an abettor, though the principal is innocent and escapes
scot-free (c), such are, illustrations (£), (c) and (d).

Explanation 4 : — When the abetment of an offence is an offence, the abetment
of such an abetment is also an offence. Richardson J., in construing this
explanation 4 pointed out “ when the abetment of an offence is an offence “ do
not mean " when an abetment of an offence is actually committed Flecher, J.,
held “ they mean when the abetment of an offence is by definition or description
an offence under the Code, i.e., when an abetment of an offence is punishable under
section 109 or section 1 16 or some other provision of the Code, then the abetment
of such abetment is also offence ” (d). In Srilal's case, one S instigated /£, a bench
clerk of M, a Presidency Magistrate, to instigate the latter to accept an illegal
gratification for acquitting an accused in a case pending before him and granting
sanction against the complainant in the case and K received such gratification as

(v) Ram Panda, (1872) 9 B. L. R. App. 16 ; Paun Panda , (1872) 18 W *R (Cr.) 28 ;
Jagut Mohini Dasee, (1881) 10 C. L. R. 4.

(w) Noorul Hussain V. Fabre Tonnere, 24 W. R. (Cr.) 26.

(x) Imamdi Bhooyah, (1873) 21 W. R. Cr. 8 ; Dinanath Barooa, (1871) 18

W. R. Cr. 32. *

(y) Troyluckonath Chaudhury, (1878) 4 C. 366.

(z) Per Westroop, C. J., in PestonjL Dinsha. (1873) 10 Bom. H. C. 75.

(a) Sahib Ditto, (1885) P. R. No. 29 of 1885.

(b) Brij Mohan. 7 N. W. P. 184,

* (c) Joan Bleasdale, (1848) 2 C. Snd R. 765.

(d) Srilal Chqmirin, (1018) 46 C. 67: 22 C. W. N. 136": 28 C. L. J. 37: 20
Cr. L. J. 49 48 I. C. 817. J

SECS. 108A- 109]

OF ABETMENT

169

a police spy, and intending to get S arrested, and did not in (act instigate M to
accept the same, held , that S was guilty of abetment of bribery under section 161
read with section 116 (e). The Punjab Chief Court in a case held that the
conviction of the abettor could not be maintained if it involved findings of fact
inconsistent with the findings that the principal had not committed the offence of
murder (f). Where the prisoner asked a native doctor to supply her with medicine
for the purpose of poisoning her son-in-law, which he refused, it was he^l that
the prisoner's act was a mere preparation and not an attempt to commit murder,
but that it might be held to have been an abetment of the native doctor to abet
the accused in the commission of murder within the meaning of this explanation,
and therefore punishable under section 302-1 16 of the Code (g).

Explanation 5 : — Where two persons were indicted for making and engraving
of a plate for the purposes of forgery and it was proved that one of them gave the
order for the manufacture of the plate to an innocent agent, who never saw the
other until it was completed, it was held that they were both correctly charged
as principals (h). Mere subsequent knowledge of the offence is insufficient (i).

108-A. A person abets an offence within the meaping of
this Code who, in British India, abetsf the
commission of any act without and beyond
British India which would constitute an
offence if committed in British India.

Abetment in British
India of offences out-
side it.

Illustration.

A, in British India, instigates B, a foreigner in Goa, to commit a murder in Goa.
A is guilty of abetting murder.

Legislative Changes ; — This section was added by s. 3 of the Indian Penal
Code Amendment Act, 1898, (IV of 1898) (j). This section came into force on the
18th February, 1898, and makes abetment in British India of an offence outside
British India abetment within the meaning of this Code, and has the effect of
superseding the decision in Ganpatrao v. Rajchandra (k).

Mere intention not followed by any act cannot constitute any offence, and an
indirect preparation which does not amount to an act which amounts to commence-
ment of the offence, does not constitute either a principal offence or an attempt
or abetment of the same (1).

Procedure : — No Court shall take cognizance of any offence punishable under
this section unless upon complaint made by order of, or under authority from, the
Governor-General in Council, the Local Government, or some officer empowered
by the Governor-General in Council in this behalf (m).

109. Whoever abets any offence shall, if the act abetted

Punishment of abet- ls committed in consequence of the abet-
ment if the act abetted ment, and no express provision is made

quence and Cd where^no by this Code for the punishment of such
express provision is made abetment, be punished with the punishment
for its .punishment. prov J de d f or t h e offence.

(e) Ibid.

(f) Lai Khan Kurum Khan, (1866) P. R. No. 71 of 1866.

(g) Musst. Bakhtawar , (1882) P. R. No. 24 of 1882.

(h) Bull, (1846) 1 Cox. C. C. 281.

(i) Shumeruddin , (1866) 2 W. R. (Cr.) 40.

(j) See G. I. 1897 Part VI, p. 238 for Report of the Select Committee

(k) (1894) 19 B. 105.

(IK Baku, (1899) 24 .B, 287. *>"

(m) Section 196,* Criminal Procedure Code.

170

THE INDIAN PENAL CODE

[CHAP. V

Explanation . — An act or offence is said to be committed
in consequence of abetment, when it is committed in conse-
quence of the instigation, or in pursuance of the conspiracy,
or with the aid which constitutes the abetment.

Illustrations.

(af A offers a bribe to B, a public servant, as a reward for showing A some favour
in the exercise of B's official functions. B accepts tbe bribe. A has abetted the offence
defined in section 161.

(6) A instigates /» to give false evidence. B , in consequence of the instigation,
commits that offence. A is guilty of abetting that offence, and is liable to the same
punishment as B.

(c) A and B conspire to poison Z. A , in pursuance of the conspiracj r , procures
the poison and delivers it to B in order that he may administer it to Z. B, in pur-
suance of the conspiracy, administers the poison to Z in A ’s absence and thereby causes
Z ' s death. Here B is guilty of murder. A is guilty of abetting that offence by
conspiracy, and is liable to the punishment for murder.

This section prescribes that an abettor will be punished with the punishment pro-
vided for the principal offender (a) f if the act abetted is committed in consequence
of the abetment and (b) if no express provision is made for the punishment of such
abetment.

Scope : — Section 109 would not supply a general rule that accessories at the
fact are equally liable as principals with the principal in the first degree (p).

Distinction between section 109 and sections 115 and 116 : — Section
109 deals with a case where the abetted offence is committed, whereas sections 115
and 116 deal with cases where the offence is not committed (q).

Offence An abetment of a breach of the bye-laws framed by a District
Council under the authority of the Burma Rural Self-Government Act is not
an abetment of an offence within the meaning of this section (r).

No express provision : — This section does not apply to the following sec-
tions where the Code has made express provisions: —

Ss. 1 16-120. (specific sections on abetment).

Ss. 121, 122, 123— -abetting the waging of war.

S. 130— abetting the escape of state prisoners.

S. 1 32— 'abetting mutiny.

S. 134— abetting assault of a soldier or sailor on his superior officer.

S. 136— abetting insubordination by the same.

Abetment followed by act Mayne in his valuable commentary says :
“The result of an abetment will be either that no offence is committed, or that
the offence is committed which was intended by the abettor, or that a different
offence is committed. The mere abetment of an offence which comes to nothing
is punishable by sections 115 and 116, according to the gravity of the intended
crime, and by s. 117 according to the number of persons who were instigated.
When the crime proposed is actually accomplished, the abettor is treated as being
equally guilty with the actual perpetrator, whether he was absent or present at the

<p) Barendra Kumar Gkose, (1923) 28 C. W. X. (F . 15.,) 170 (210).

(q) Per Richardson, J., in Barendra Kumar Chose , (1923) 28 C. \V. N. 170 (214)

(F. B.) where the case in Nirmal Kant a Roy, (1914) 41 C. 1092 : 18 C. W. N. 723 was
overruled. «

(r) Mt. Khwet Khye, (1928) <KR. 791.

SEC. 109]

OF ABETMENT

171

actual committing of the crime (Ss. 109-114). The only case that ever creates
any difficulty is the last, viz., where one offence is abetted and another is committed.
In this case the abettor will not be answerable at alj, if the offence is not committed
in consequence of the abetment (s. 109, explanation, s. Ill) (s).

4 If the act abetted is committed in consequence of the abetment ’

A charge under s* 109 should contain the words, the act abetted was committed
in consequence of the abetment” (t).

Markby, J., held that in order to convict a person of abetting the commission
of a crime, it is not only necessary to prove that he has taken part in those steps
of the transaction which are criminal. There can be no offence of the abetment
of giving false evidence unless the person charged with abetmeftt intended not
only that the statement should be made but that the statement should be made
falsely (u).

Resc uing : — Where an accused was convicted under section 224 for escaping
from lawful custody of a Chaukidar and the other two accused of abetment under
this section, held , that there being no lawful custody, the conviction was wrong (v).

Forgery : — Where the accused was not only the writer but also took an active
part in the preparation of a document the alleged executant of which was dead,
but evidence was wanting to show that the accused took any part in the forgery
of the name of the alleged executant, held , that the accused could not be convicted
of the offence of forgery under s. 467 but the proper section to convict him
would be s. 467-109— -abetment of forgery, and not s. 467-1 14 (w).

Bigamy :~ J Where a Hindu father after giving away in marriage his daughter
aged about eight, to one person, married her again to another, his act was held
to amount to an abetment of s. 494-109, although it was contended that
there could be no abetment as the girl of 8 had not the requisite knowledge and
intelligence to commit an offence. It was held in Nandalal Singh's case (x) that the
case was amply covered by s. 108, explanation 3, illustration (a).

Criminal breach of trust : --Where Moss and Green way as manager and
assistant manager of the Himalayan Bank abetted the Directors in paying dividends
when the Bank had no profits, it was held that Moss and Greenway were guilty
under Ss. 409 and 109 for assisting the Directors to obtain the sanction of the share-
holders to the illegal payment of dividends (y).

Murder : — Where A killed his wife in consequence of a quarrel and he then
called his brother B to assist him in disposing of her body to which he agreed and
for which purpose he accompanied him ; A asked him to carry his child C which
he did and while in the way he asked A what he would do with the child, and A
replied that he should either kill him or abondon him in the jungle, whereupon
B refused to go any further but at the same time knowing full well that the child
was going to be murdered he made no attempt to take the child back with him
and the child was subsequently murdered, held, that B was liable as an abettor
both under this section and section 1 1 1 (z).

Kidnapping : — Is kidnapping a continuing offence ? According to the view
of the Madras High Court the offence of kidnapping continues so long as the process

(s) Maync, ‘Criminal Law of India,' 3rd Ed., p. 478.

(t) 1 W. U. (Cr.) Letters, 0 ; 2 \V. It. (Cr.) L. 8.

(u) Nim Chanel Mukherjee, (1873) 20 VV. 11. (Cr.) 41.

(v) Puma Chandra v. Hachanali, (101(1) 17 C. VV. N. 978.

(w) Kasinath Naih, (1897) 25 C. 208 : 1 C. \Y. N. 681.

(x) (1902) 6 C. VV. N. 343 ; See Thandavaravadi, (1891) 14 M. 364.

(y) Moss, (1893) 16 A. 88.

(*) Sadu, (1884) Rat. Unrep. Cr. C. 207.

172

THE INDIAN PENAL CODE

[CHAP. V

of taking the minor out of lawful guardianship continues and it can be abetted only
as long rs the offence continues (a). The Calcutta High Court in an earlier case
held the same view in a case where a Hindu woman left her husband’s house taking
her infant daughter with her, and went to the house of A, and on the same day the
daughter was married to B the brother of A without the father’s consent, A was
convicted under Ss. 109 and 363 of abetting the offence of kidnapping (b), but
in e later Full Bench decision the same High Court has held that kidnapping is
not a continuing offence (c). The Patna High Court in Rekha Rai's case (d) and
Nanhak Sao’s case (e) has held that kidnapping is not a continuing offence.

President of a meeting at which songs instigating murder sung, if liable
for abetment on mere fact of presiding Mere presiding at a meeting at which
songs, criminally offensive, are sung in his presence, does not make the president
liable for abetment in the absence of evidence that he positively encouraged the
singer or persuaded him to sing the particular songs or was a party to an agree-
ment for singing them or specifically accorded permission to the singer to sing them (f).
Ganguly was tried at the Original Side Sessions, and Panckridge, J., held
that there was no case to go to the jury and Ganguly was acquitted (f).

Procedure: — The procedure for the trial of abetment generally follows
the procedure applicable to the trial of the offence abetted. Abetments are cogniz-
able or non-cognizable, bailable or non-bailable, triable as a warrant case or sum-
mons case, compoundable or non-compoundable, according as the procedure is
for the offence abetted and are to be tried by the Court by which the offence abetted
is triable and punishable with the same punishment as for the offence abetted. Con-
sequently an abetment is triable summarily if the offence abetted is so triable (g).

Complaint : — S. I96-A.,Cr. P. Code, applies to a prosecution for conspiracy
punishable under s. 120-B., I. P. C., and not for abetment by conspiracy punishable
under s. 109 of the latter Code (h).

Joint trial : — Persons accused of an offence and persons accused of abet-
ment may be tried together (i).

Jurisdiction : — A charge of abetment may be enquired into or tried either
by the Court within the local limits of whose jurisdiction the abetment was com-
mitted, or by the Court within the local limits of whose jurisdiction the offence
abetted was committed (j).

Applicability to special law : — The abetment sections apply to an offence
created by a bye-law framed under the Calcutta Municipal Act (j*).

Charge : — In a charge under this chapter, the section of the principal offence,
and the section of this chapter under which the case falls should be mentioned
with the circumstances which brings it under the said section (j 2 ). A man, who

(a) Samia Kaundan, (1876) 1 M. 173, dissented from in Ram Dei, 18 A. 3S0
(382).

(b) Prankrishna Sartna , (1882) 8 C. 969.

(c) Nemai Chatturvaj, (1900) 27 C. 41 (F. B.) ; Abdur Rahaman , (1915) 38 A.
664 : 14 A. L. J. 765 : 17 Cr. L. J. 408.

(d) (1927) 6 P. 471.

(e) (1926) 5 P. 556.

(f) Bepin Behary Ganguly, (1932) 36 C. W. N. 191 followed in Jagadish Narain

Tewari , 36 C. W. N. 722, (in this case the blowing of a bugle by a volunteer was lawfully
forbidden). . , r

(g) S. 260 (k), Cr. P. Code.

fh\ Abdul Salim, (1921) 49 C. 573.

(i) S. 23,0 Cb), Cr. P. Code.

(j) S. 180, Cr. P. Code ill (a). - .

(it) Probodh Ckmdm Bose V. Corporation of Calcutta, (1910) 24 C. W. N. 106.
Q2) (1865) 8 W. ft. (Cr. Letters 5) ; (1864) 1 W. ft. (Cr. L. 9).

SEC. 110]

OF ABETMENT

173

is charged with a substantive offence and nothing else, can always without the
framing of a further charge by a Magistrate, be convicted of the abetment of it (jO.

To substantiate a charge under this section, it is necessary to show intentional
aid by some act or illegal omission (k).

Form of Charge.— I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That A B (the name of the principal , if the person is unknown , say that an un-

known person) on the day of , at , committed the

offence of* , and that you at— , abetted the said A B (or person

unknown ) in the commission of the said offence of — , which was committed

in consequence of your abetment, and you have thereby committed an offence

punishable under, sections 109 and of the Indian Penal Code, and within my

cognizance (or within the cognizance of the Court of Session).

And I hereby direct that you be tried on the said charge [(by the said Court)
(if the case is committed to the Court of Session)],

In the case of joint trial where the abettor is charged with the principal offender,
the charge should run thus

That you , on or about the day of , at ,

abetted the commission of the offence of , by which was committed

in consequence of your abetment, and that you have thereby committed an offence

punishable under sections 109 and , of the Indian Penal Code, and within

cognizance of my Court or the Court of Session.

Where an accused is discharged, and he thereafter offers gratification to a
police-officer to withdraw the case against him, held, he could not be convicted of
an offence under s. 161 read with s. 109 (I).

A person charged under s. 379 cannot be convicted under this section for
abetment of theft if he is not charged with abetment (m).

The fact that certain stolen articles were recovered from the house of the
accused is not sufficient to convict him of Ss. 380, 457 read with this section (n).

110. Whoever abets the commission of an offence shall,

Punishment of abet- ^ P e ? son abetted does the act with a
menTif person °a betted different intention or knowledge from that
does act with different of the abettor, be punished with the
abettor” r ° m that ° punishment provided for the offence which
would have been committed if the act had
been done with the intention or knowledge of the abettor and
with no other.

Offence— s. 40. ‘ , Abettor— s. 108.

This section provides that an abettor willbe liable to the same punishment even
though the person abetted commits the offence with a different intention or know-
ledge from that of the abettor, but the last section requires the act abetted to be
committed in consequence of the abetment.

(ft) A. V. Joseph, 3 Bur. L. J. 266. ~~~

(k) Khander, (1899) 1 Bom. L. R. 36.

fi) Shamsul Huq, (1919) 33 C. L. J. 329 : 23 Cr. L. J. 1 : 64 I. C. 369.

(m) Darbra Chowdhwy, (1912) 22 Cr. L. J 311 : 60 I. C. 999 (Pat.) following
Padamanbha Panjikanna, (1909) 33 M. 264. J >.

(n) Sheobhojan Ahir, 2 Pat. L. T. 126. < * v

174

THE INDIAN PENAL CODE

[CHAP. V

This section refers to a case contemplated in section 108, exp|anation 3 — See
illustration (d) which has been drawn in accordance with the decision in Cruse's
case (n 1 ).

Procedure— same as for the offence abetted.

111. When an act is abetted and a different act is done.
Liability of abettor the abettor is liable for the act done, in the
when one act abetted same manner and to the same extent as if

and different act done. he had dJ rectly a b ette d it S

Provided the act done was a probable consequence of the
Provi . o abetment, and was committed under the

influence of the instigation, or with the aid
or in pursuance of the conspiracy which constituted the abetment.

Illustrations.

(a) A instigates a child to put poison into the food of Z , and gives him poison
for that purpose. The child, in consequence of the instigation, by mistake puts the
poison into the food of V, which is by the side of that of Z. Here if the child was acting
under the influence of A ’s instigation, and the act done was under the circumstances
a probable consequence of the abetment, A is liable in the same manner and to the
same extent as if he had instigated the child to put the poison into the food of Y.

(b) A instigates B to burn Z's house. B sets fire to the house and at the same
time commits theft of property there. A , though guilty of abetting the burning of the
house, is not guilty of abetting the theft ; for the theft was a distinct act, and not a
probable consequence of the burning.

(i c ) A instigates B and C to break into an inhabited house at midnight for the
purpose of robbery, and provides them with arms for that purpose. B and C break
into the house, and being resisted by Z t one of the inmates, minder Z. Here, if that
murder was the piohable consequence of the .abetment, A is liable to the punishment
provided for murder.

Analogous Law : — The law enunciated in this section coincides with the
English law. As Foster says : “ If the principal totally and substantially varies,
if being solicited to commit a felony of one kind, he wilfully and knowingly commits
a felony of another, he will stand single in that offence, and the person soliciting
will not be involved in this guilt. But if the principal in substance complies with
the command, varying only in the circumstances of time or place or manner of
execution ; in these cases the person soliciting to commit the offence will, if absent,
be an accessory before the fact, or if present, a principal. A commands B to
murder C by pcison, B does it by a sword or other weapon or by some other means,
A is accessory to this murder, for the murder of C was the principal object, and
that object is effected. So where the principal goes beyond the terms of the
solicitation ; if in the event the felony committed was the probable consequence of what
was ordered or advised , the person giving such order or advice will be an accessory
to that felony. A , upon some affront given by B t ordered his servant to waylay
him and give him a sound beating ; his servant does so, and B dies pf the beating ;
A is accessory to this murder. A solicits B to burn the house of C ; he does* sp
and the flames catching the house of D, that also is burnt. A is accessory td this
felony. The principle in all these cases is that though the event might he beyond
the original intention of the accersory, yet as in the ordinary course of thinpp that
event was the^ probable consequence of what was done under his influence, and
at his instigation, he is in law answerable for the offence u (o).

(nr) (1838) 8*C. >,<$r P. 541.

(6) Foster/Crown Law, 389, 370; ) Hale P. C. 817.

SEC. 112 ]

OF ABETMENT

175

Straight, J., observed : 44 It is clear law that if one man instigates another
to perpetrate a particular crime, and that other in pursuance of such
instigation, not only perpetrates that crime, but, in the course of doing so, com-
mits another crime in furtherance of it, the former is criminally responsible as an
abettor in respect of such last mentioned crime, if it is one which, as a reasonable
man, he must, at the time of the instigation, have known, would, in the ordinary
course of things, probably have to be committed in order to carry out the original
crime. For example, if A says to B : — 4 You waylay C on such and such a road
and rob him, and if he resists, use this sword, but not more than is absolutely
necessary * ; and B kills C, A is responsible as an abettor of the killing, for it was
a probable consequence of the instigation. To put it in plain terms, the law
virtually says to a man : * If you choose to run the risk of putting another in

motion to do an unlawful act, he, for the time being, represents you as much as he
does himself ; and if, in order to effect the accomplishment of that act, he does
another which you may fairly from the circumstances be presumed to have fore-
seen would be a probable consequence of your instigation, you are as much res-
ponsible for abetting the latter act as the former ” (p).

Probable consequence Morgan and Macpherson observe : 44 It is
sufficient if the act done was a probable consequence of the abetment. It is not,
it seems, necessary that the abettor should know it to be a probable consequence** (q).

Where the prisoners went out to assist in beating a person who died as the
result of the assault and the Court found that the prisoners intended to harm the
deceased but not to cause his death, it was held that the prisoners knew that the
hurt abetted was likely to cause death and as they were abettors and were present,
they should be punished as for grievous hurt (r). Where A ordered B and C to
seize and forcibly take D, in the contemplation of an assault upon Z), and D was so
beaten and tortured as to have died in consequence, held , that A was guilty at least
of abetting the commission of voluntarily causing hurt (s).

Procedure- is the same as for the offence abetted.

Misdirection in charge to the jury Where the learned Judge did not put
before the jury, as a question of fact, the question whether the giving of poison
to the father-in-law and brother-in-law of a girl Fatima was a probable consequence
of the accused having given Fatima the substance with a view to her administering
it to her husband, held , this was a misdirection (t).

112. If the act for which the abettor is liable under the

Abettor when liable la ?5- P reCedin L g SeCt '°? “ committed in
to cumulative punish- addition to the act abetted, and constitutes
ment for act abetted a distinct offence, the abettor is liable to

and for act done. • « r \ r \ /t

punishment tor each ot the offences.

Illustration .

A instigates B to resist by force a distress made by a public servant. B, in con-
sequence, resists that distress. In offering the resistance, B voluntarily causes grievous
hurt to the officer executing the distress. As B has committed both the offence of
resisting the distress and the offence of voluntaiily causing grievous hurt, B is liable
to punishment for both these offences ; and, if A knew that B was likely voluntarily
to cause grievous hurt in resisting the distress, A will also be liable to punishment for
each of the offences.

Mathura Das , (1884) 6 A. 491 (494).

Morgan and Macpherson, Penal Code, p. 91.

Goluch Chand, (1886) 5 W. R. 76 (Or!).

Doorgestvar Sunnah , (1867) 7 W. R. 61 (Cr.).

(t) Amode AH Shihdar, (1931) 68 C. 1228 (1233).

176

THE INDIAN PENAL CODE

[CHAP. V

According to Mayne, “An abettor may succeed in rendering himself liable lor
two ofiences, when he only intended to bring about one, if the one which be intended
causes another which he ought to have anticipated, and if they are both distinct
offences, so as to be subject to distinct punishment ” (u).

113 . When an act is abetted with the intention on the part

of the abettor of causing a particular effect,
toZXt’LgZ* and an act for which the abettor is liable
the act abetted differ- in consequence of the abetment, causes a

b > - r0 the t ^tto t r end ' different effect from that intended by the
abettor, the abettor is liable for the effect
caused, in the same manner and to the same extent as if he had
abetted the act with the intention of causing that effect, provided
he knew the act abetted was likely to cause that effect.

Illustration .

A instigates B to cause grievous hurt to Z. B, in consequence of the instigation,
causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous
hurt abetted was likely to cause death, A is liable to be punished with the punish-
ment provided for murder.

This section should be read along with section 111.

Morgan and Macpherson observe with regard to this section : “A person
would not be liable for an unexpected effect or for an effect which he could not
have foreseen to be probable. Suppose that instigation was to inflict some small
hurt on Z, not calculated of itself to endanger his life, and Z by intemperance, or
neglect, or bad treatment, dies. A would not be answerable fojr his death."

“ The illustrations show clearly the distinct operation of this section and sec-
tion 111" (v).

114 . Whenever any person, who if absent would be liable

to be punished as an abettor, is present when
offence^s committed^ 11 the act or offence for which he would be
punishable in consequence of the abetment
is committed, he shall be deemed to have committed such act or
offence.

“ This section is the only section in the chapter which speaks of the abettor

being present on the scene Section 1 14 would appear to serve two purposes :

Firstly, it marks the fact that where it can be proved that the accused, if absent,
would be liable as an abettor, his mere presence when the offence is committed
is, without more sufficient proof of common intention, to make him an accessory
at the fact or principal. Secondly, it marks the fact that in those circumstances the
accused cannot be punished twice, once for the abetment and once for being present
as an accessory at the fact" (v r ).

Scope : — This section deals with the case where there has been actual com-
mission of. the crime abetted and the abettor has been present thereat ; and the way
in which it deals with such a case as this. Instead of the crime being still abetment
with circumstances of aggravation, the crime becomes the very crime abetted.
The section is evidentiary and not punitive. Because participation de facto may
sometimes be obscure in detail, it is established by the presumption /uris-de-jure

(u) Mayne, Criminal Law of *ndia, 3rd ed., p. 480.

(v) Morgan and Macpherson, 4 Penal Code/ p. 92.

(vl) Per Richardson, J., in Barendra Kumar Chose, (1923) 28 C, W. N. 170,
(215).

SEC. 114]

OF ABETMENT

177

that actual presence plus prior abetment can mean nothing else but participation.
The presumption raised by s. 1/4 brings the case within the ambit of s. 34 (w).

The Rangoon High Court in the Full Bench decision of Maung Pu Kyi (x)
has held that a person who is punishable under a particular section of the Penal
Code read with this section, is punishable not as an abettor but as a principal
and is guilty of the substantive offence and not merely of abetment of that offend*.

This section resembles s. 34 in this, that it rather regulates procedure and
punishment than creates an offence, [cf. Gould <5* Co. Houghton (1921) I K. B.
509 at p. 519]. This section is not wide enough to include all accessories at the
fact (y). To sustain a conviction under this section the abetment must be complete
apart from the mere presence of the abettor (z). Ss. 34 and 1 14 have no applica-
tion in the construction of s. 398 (a).

Meaning of this section : — The meaning of this section is that if the nature
of the act done constitutes abetment, then, if present, the abettor is to be deemed
to have committed the offence, though in point of fact another actually committed
it. Section 114 of the Penal Code simply provides for the punishment of what
the English law calls principals in the second degree. A person present abetting
an offence is to be deemed to have committed the offence, though he does not in
fact do so any more than a principal in the second degree does. Hence “ all who
are present aiding and assisting a man to commit a rape are principal offenders in
the second degree whether they be men or women ” (1 Russ. 903) ; and hence
Lord Audley (3 Howells St. Trials) was convicted as a principal of a rape on his
own wife because he aided another to ravish her. There are several modes of
abetment defined in the Penal Code. One is instigating another to commit an
offence. If A instigates B to murder Z, he commits abetment ; if absent, he is
punishable as r an "abettor ; and if the offence is committed, then under section 109 ;
if present, he is by section 1 14 to be deemed to have committed the offence and is
punishable as a principal. Another mode of abetment is by intentionally aiding
by any act or illegal omission the doing of an offence. A aids B to murder Z ;
if absent, he is punishable as an abettor and may be liable under section 109; if
present, then he is to be deemed as much to have committed the offence as if he
had struck the fatal blow (b).

Morgan and Macpherson say; “By virtue of this provision (114) such
an abettor may, on his trial, be charged with the offence as if he had himself com-
mitted it. Suppose several persons are present and concerned in the commission
of an offence, but it is uncertain which of them actually committed it, and which
aided the commission ; each may be charged as a principal offender M (c).

* who if absent would be liable to be punished as an abettor 9 : —

In order to bring a prisoner within this section, it is necessary first
to make out the circumstances which constitute abetment, so that ‘ if absent ’
he would have been * liable to be punished as an abettor * and then to show that
he was also present when the offence was committed (d). Where both master

~(w) Barendrolcutnar Ghose, (1924) 52 I. A. 40 : 52 C. 197 (P. C.) : 29 C. VV. N.
181 : (1925) M. W. N. 26 : 3 Pat. L. R. 1 : 27 Bom. L. R. 148 ; 26 P. L. R. 50 : 6 ;
Pat. L. T. 169 : A. I. R, (1925) P. C. 1 ; in rc. Muhammad Lervai, (1920) 32 Cr. L. J.
1116.

(x) (1929) 7 R. 329 (F.B.).

(y) Per Richardson, J., in Barendra Kumar Ghose , (1923) 28 C. W. N. 170 (215).

(z) Krishnaswami Naidu, (1927) 51 M. 263 ; Vijayaramga Naidu, (1927) 53
M. L. J. 760.

(a) Nahi Bux t (mi) 52 B, 168 ; 30 Bom. L. R. 88 ; A. I. R. (1928) B. 52 (1).

(b) (1869) 4 M. H. C. App. 37 ; Weir Vol. I, p. 49.

(c) Morgan and Macpherson, ‘ Penal Code/ p. 92.

(d) Mussamat Niruni , (1867) 7 W. R. (Cr.) 49; Abhi Miser V. Lachmi Narain (1900)
27 C. 566 ; 4 C. W. N. 506 ; Hansa Patkah V, Bansilal Das t (1901) 8^ C. W. N. 519.

18

178

THE INDIAN PENAL CODE

[CHAP. V

and servant were present at the sale of ganja in contravention of the terms of his
license and the servant received the money paid for the ganja , it was held that having
regard to the provisions of section 34, the servant was guilty of selling ganja
without a license, and that under the circumstances of the case this section
had no application (e).

* Where no instigation, conspiracy or act or illegal omission is proved, and the
abetment consists only of participation in the actual commission of the offence,
section 109 and not this section is applicable (0*

* is present when the act or offence is committed 9 r— Where several
persons join together in beating a man, and one of them actually causes grievous
hurt, he will be guilty of an offence under section 325, but others who have assisted
him by their presence and encouragement cannot merely on that account be punished
under this section (g). Where the abettor is present when the offence is committed,
held , the abettor is guilty of the offence (h).

An accused person cannot be convicted solely upon the evidence of persons
who are more or less participators in the crime of which he is accused. Where a
witness admits that he was cognisant of the crime as to which he testifies, and took
no means to prevent or disclose it, his evidence must be considered as no better
than that of an accomplice (i). The person who gives the bribe is an abettor of
the offence under section 161 and as such would be punishable under
section 1 16 (j).

No one can be convicted under this section unless it is proved that first he is
an abettor and then he was present at the commission of the offence. Where a
number of thieves enter a house at night and while they are committing theft,
one of them waits outside to watch, in such a case his mere presence is sufficient
to prove previous abetment and he was rightly convicted under this section as
being equally guilty as principals (k).

A conviction under section 114 cannot stand where the abetment charged
necessarily requires the presence of the abettor. To come within the section, the
abetment must be complete apart from the presence of the abettor (1).

Where a Court finds that parties came with a number of armed men and carried
off a crop, the finding amounts to that of a forcible carrying off without the consent
of the owner. Even if they took no part in the actual taking, they must, with
reference to section 1 14, be considered guilty of the substantive offence under
section 378 (m).

Present : — The word ‘ present ’ here in the eye of law means that a person is
near enough to afford assistance, should occasion arise (n). The word ‘ present ’
has been used in its legal and not literal sense as meaning sufficiently nearto render

(e) Keshwar Lai Shaha V. Gtrish Chandra Dutt, (1902) 29 C. 496.

(f) Abdulla Khan , (1899) P. R. No. 16.

(g) Abhi Miser V. Lachmi Narain, (1900) 27 C. 666, explaining Chatradhari Go ala
(1897) 2 C. W. N. 49.

(h) Patilbuva, (1926) 28 Bom. L. U 1029: 27 Ci. L. J. 1163, followm Ranchand
Sttrsang , 49 B. 84 : 26 Bom. L. R. 954.

(i) Chando Chandalini , (1875) 24 W. R. (Cr.) 55.

(j) Deo Naundan Pershad, (1906) 33 C. 649, distinguishing Chando Chandalini ,
(1875) 24 W. R. 55 and approving of Deodhar Singh (1899) 27 C. 144.

(k) Charles Cogerly, (1818) R. & R. 343; Alimuddin Nashar , (1924) 52 C. 253:
29 C. W. N. 173 : 40 C. L, J. 541.

(l) Ram Ranjan Roy , (3914) 42, C. 423 : 19 C. W. N. 28, followed in Krishnaswami
N aid u, (1927) 51 M. 263.

(m) Shib Chunder Mundle, (1867) 8 W. R. (Cr.) 59.

(n) William Stewart , (1818) R & R 363; Patrick Kelly, (1920) R. & R. 421:
Howell, (1839) 9 C. & P. 437.

SEC. 114 ]

OF ABETMENT

179

assistance (o). A strict actual immediate presence, such a presence as would make
one an eye-or ear-witness of what passes, is not then required ; constructive pre-
sence is enough, if it was such as may be inferred as due to a common design and
intended to achieve a common purpose, and if it is sufficiently near to afford to
the other confederates sufficient aid and encouragement. " So when several persons
set out together or in small parties upon one common design, be it murder or some
other felony, or for any other purpose unlawful in itself, and each takes the part
assigned to him, some to commit the fact, others to watch at proper distances and
stations to prevent a surprise, or to favour if need be, the escape of those who are
more immediately engaged ; they are all in the eye of law present at it : provided
the fact to be committed for it was made a common cause with them ; each man
operated in his station at one and the same instant towards the same common
end, and the part each man took tended to give countenance, encouragement,
and protection to the whole gang, and to insure the success of their common
enterprise (p). Such was the case where one commits theft in a house and throws
the stolen property to an accomplice waiting outside to receive it (q). S was a
barman at a refreshment bar, and C went up to the bar, called for refreshment
and put down a florin. S served C, took up the florin, and took from his em-
ployer’s till some money, and gave C as his change 18 s. 6 d. which C put in his
pocket and went away with it. On leaving the place he took some silver from his
pocket and was counting it when he was arrested. On entering the bar, signs of
recognition took place between S and C, and C was present when S took the money
from the till. The jury convicted S of stealing and C of receiving. It was held
that C might have been convicted as a principal in the second degree ; and that
therefore the conviction of C, for receiving could not be sustained (r). I had
employed M to lorid sacks of oats, the property of J , from a vessel on to the trams
of K f who Was to carry them on the trams to the warehouse of /. By previous
concert between M and K cats were taken by M from two of the sacks and put
into a nose-bag in the absence of K , and hidden under a tram; K returned in a
few minutes and took the nose-bag and its contents from under the tram and took
them away, M being then within three or four yards of him. It was held that as
both had been present at some parts of the transaction, both could be convicted
as principals in the larceny (s).

Procedure— is the same for the offence abetted.

* he shall be deemed to have committed such act or offence 9 : — The

effect of s. 1 14 is that if a man is present at a commission of an offence he is
deemed to have committed it not that he has committed it (t), see Full Bench
decision in Mating Pu Kyi (u) where this view has been dissented from.

Abetment not charged Conviction whether bad There is a conflict
of authorities on this point. Graham, J., in Hulas Baid's case (v) and the Nagpur
Court in Kishandas's case (w) following Chand Nuts case (x) and other cases (y)

(o) Ibid.

(p) Foster , 350 ; 2 Hawk. P. C. 29.

(qr Joseph Owen , (1825) 1 Mood C. C. 96.

(r) Coggins , (1873) 12 Cox. C. C. 517.

(s) Martin Kelly, (1874) 2 C. & K. 379; Jefferies, 3 Cox. 85.

(t) Kashi Antoo, (1907) 10 Bom. L. R. 26 : 7 Cr. L. J. 32, followed in 8 L. B. R.
274 (284) (F. B.).

(u) (1929) 7 R. 329 (F. B.).

(v) 44 C. L. J. 216.

(w) A. I. R. (1929) N. 325.

(x) (1874) 11 Bom. H. C. 240.

(y) Mahabir Prosad , 49 A. 120 ; Dongaru , (1900) 13 C. P. L. R. 167 ; Padmana -
bha , (1910) 33 M. 264; Panjtkanna Roghya V. Negya. A. I. R. (1924) B. 432.

180

THE INDIAN PENAL CODE

[CHAP. V

held, that the conviction would be illegal. Suhrawardy, J., in the case of Jnanendra
Nath Ghatak (z) however dissented from the view taken by Graham, J., in Hulas
Chand Baid's case (v).

Punishment S. 114 does not provide for any punishment, the offence of
abetment plus presence on the occasion of the crime abetted is constructively
the offence abetted, and is punishable as such and not as abetment (a).

115 . Whoever abets the commission of an offence punish-
, able with death or transportation for life,

punishable* 4 with °death shall, if that offence be not committed in
or transportation for consequence of the abetment, and no ex-
nritted ;° ffenCe not C ° m " press provision is made by this Code for the
punishment of such abetment, be punished
with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine ;

and if any fact for which the abettor is liable in consequence
if act causing harm of the abetment, and which causes hurt to
be done in conse- any person, is done, the abettor shall be
quence ' liable to imprisonment of either description

for a term which may extend to fourteen years, and shall also be
liable to fine.

*

V

Illustration .

A instigates B to murder Z. The offence is not committed. If B had mur
dered Z t he would have been subject to the punishment of death or t:ansportation for
life. Therefore A is liable to imprisonment for a term which may extend to seven
years and also to a fine ; and, if any hurt be done to Z in consequence of the abetment,
he. will be liable to imprisonment for a term which may extend to fourteen years, and
to fine.

Scope s—' This section does not require the abetment of the commission
of an offence by any particular person against any particular person (b).

* Ex press provision ’—in s. 115 refers to sections in which specific cases of
offences punishable with death or transportation for life are dealt with, s. 1 1 7
not being such a section when there is abetment of commission of murder
by ten or more persons or by the public generally, it is 3. 115 which will apply and
not s. 117 (c).

In Venkatarama Naidu (d), Coutts Trotter, C. J., pointed out the unsatisfactory
nature of the present law and suggested that the Code should contain a provision
in the lines of Frys Act (Prevention of Corruption Act 1906, VI, Edw. 7, c. 34).
The unsatisfactory state of the law is that if a man in the vain hope of getting
a public officer to reconsider a question as to which that public officer is jkmetus
officio offers a bribe, he commits no offence by doing so and presumably the public
officer would commit no offence by taking it.

(z) 57 C. 806 : 34 C. W. N. 198.

(a) Chidambaram Pillai, (1908) 32 M. 3 (37) (F. B.).

(b) Dwarikanatk Goswami (1932) 37 C. W. N. 91.

(c) Ibid.

(d) (1929) M. W. N. 695; 57 M. L. J. 23?.

Of ABETMENT

181

SEC. 116]

116 . Whoever abets an offence punishable with impri-
... A _ sonment shall, if that offence be not com-

punishable with im- mitted in consequence or the abetment,

prisonment— if offence an( j n0 express provision is made by this

committee Code for the punishment of such abetment,
be punished with imprisonment of any description provided for
that offence for a term which may extend to one-fourth part of
the longest term provided for that offence ; or with such fine
as is provided for that offence, or with both ;

and if the abettor or the person abetted is a public servant,

_ .. whose duty it is to prevent the commission

abetted e be°a publics^ of such offence, the abettor shall be punished
vant whose duty it is imprisonment of any description pro-

to prevent o cnce. yJJed for that offence, for a term which

may extend to one-half of the longest term provided for that
offence, or with such fine as is provided for the offence, or with
both.

Illustrations.

(a) A offers a bribe to B, a public servant, as a reward for showing A some
favour in the exercise of B's official functions. B refuses to accept the bribe. A is
punishable under this section.

(b) A instigates B to give false evidence. Here, if B does not give false evi-
dence, A has nevertheless committed the offence defined in this section, and is punish*
able accordingly.

(c) A, a police-officer, whose duty it is to prevent robbery, abets the commission
of robbery. Here, though the robbery be not committed, A is liable to one-half of
the longest term of imprisonment piovided for that offence, and also to fine.

(d) B abets the commission of robbery by A , a police-officer, whose duty it is
to prevent that offence. Here though the robbery be not committed, B is liable to
one-half of the longest term of imprisonment provided for the offence of robbery,
and also to fine.

Clause 1 The first part of this section is applicable to the case of abetment
of bribing a head-constable of police (e).

Clause 2;— In order to inflict the enhanced punishment provided in the
second clause the abetment must be by a public servant whose duty in his capacity
as such public servant is to prevent the commission of the very offence abetted (f).

A instigated B to instigate C, a magistrate, to accept a bribe which A himself
offered to B. No bribe was actually offered to C. The bribe was given to B for C
but was arrested in his hand. The Calcutta High Court held that A committed
abetment of bribery and was punishable under s. 161 read with this section (g).

Where the accused was charged under section 1 16, Penal Code, with having
abetted the commission of an offence punishable under section 161 of that Code,
the person abetted having been a civil surgeon of a sudder station, it was held that
the enhanced imprisonment prescribed by the latter part of section 1 16 could not
be awarded, as the civil surgeon was not a public servant within the words of the
section, 1 whose duty it is to prevent the commission of such offence * (h).

Cr

(e) Amode Alt Sikdar, (1931) 58 C. 1228.

(f) Rameswar Singh , (1924) 3 P. 647. ;

(g) Srilal Chamatia (1918) 46 C. 607 : 22 C. W. N. 1045 : 28 C. L. J. 870 : *0
. L. J. 49 : 48 I. C. 817.

(h) Ramnath Surma Biswas, (1873) 21 W. R. (Cr.) 9.

182

THE INDIAN PENAL CODE

[ CHAP. V

Madeod, C. J., has held “ To bribe or to attempt to bribe a public servant
is only punishable under the Indian Penal Code as an abetment of the substantive
offence of a public servant accepting or attempting to obtain an illegal gratification.

44 Illustration (a) to s. 1 16 is only an example of abetment of an offence under
s. 161 ; there are many other ways of instigating a public servant to commit an
offence under s. 161 besides by means of a direct offer of a bribe.

“ It would be establishing a very dangerous precedent to hold that an officer
is protected if he agreed to allow his official acts to be swayed by the motive of
accepting a gratification to be used not for his own personal benefit but for some
public object " (i).

A vakil of the High Court signed and sent a letter to another vakil of that Court,
who practised in district Courts subordinate thereto. The purport of this, which
was one of several printed forms prepared for circulation to vakils practising in
districts, was to the effect that the vakil, to whom it was addressed, could easily
send his client’s cases, both civil and criminal, to the writer, who would conduct
them in Court, and as a remuneration the fees paid by the clients would be shared
between the writer and the vakil who had sent the cases. The Judicial Com-
mittee concurred substantially in the conclusions of the High Court and held that
this was an incitement within s. 1 16 (abetment) of the Penal Code to commit an
offence made penal by s. 36 of the Legal Practitioners’ Act (XVIII of I879)(j).

117 . Whoever abets the commission of an offence by the

Abetting commission P £ ub,ic generally or by any number or class
of offence by the public or persons exceeding ten, shall be punished
or by more than ten per- imprisonment of either description for

a term which may extend to three years,
or with fine, or with both.

Illustration.

A affixes in a public place a placard instigating a sect consisting of more than
ten members to meet at a certain time and place, for the purpose of attacking the
members of an adverse sect, while engaged in a procession. A has committed the
offence defined in this section.

This section says that a person who abets the commission of an offence by
the public or by more than ten persons is guilty of abetment. It is not necessary
that the offence abetted should be committed.

This section had come into prominence after the Civil Disobedience Movement
was started in India, and in majority of cases which were tried under s. 17 of the
Criminal Law Amendment Act (XV of 1908) a charge under s. 117, I. P. C., was
invariably joined. The members of the Working Committee of the Indian National
Congress were tried and convicted under this section.

Scope S. 1 17 is not an express provision for abetment of an offence punish-
able with death or transportation for life. It covers all offences and is a general
provision for abetment for any number by persons exceeding ten (k).

Where the pamphlets read as follows 1 Blood calls for Blood and the accused
were tried on charges under Ss. 1 17 and 302, and the jury returned a verdict of not
guilty, but the Sessions Judge referred the case to the High Court, held, in order that
there may be abetment by means of a leaflet, of the commission of the offence by the

-(i) Amiruddin, (1922) 24 Bom. L. R. 534 : 23 Cr. L. J. 466 : 07 I. C. 818:
A. I. R. (1923) Bom. 44.

(j) Parbati Charan Chatterjee, (1893) 17 A. 496 (P. C.).

(k) Dwarika Naih Goswami , (1932 37 C. W. N 91.

SEC. 117]

OF ABETMENT

183

public, it is necessary either the public should have read the leaflets in question or
that the leaflets should have been exposed to public gaze. Consequently, when a
leaflet inciting the public to conmmit offences is affixed at a public place at dead of
night but is removed by the police shortly afterwards and the public had no oc-
casion or opportunity to see the leaflets and to read the same, no offence was com-
mitted, even if the police or constable read the leaflets, they could not be classed
as the public (1).

The gravamen of a charge under s. 1 17 is the abetment itself, the instigation
to general lawlessness, not the particular offence of which the commission is
instigated (m).

Offence ' 1 Offence * here evidently means the offence as defined in s. 40,
sapra,

‘Number or class exceeding ten 9 :—In Ganesh Vamans case (n) Beaumont,
C. J., held : “ The offence under s. 1 17 is not the offence of abetment simply,
but abetment by the public generally or by any number or class of persons ex-
ceeding ten It seems to me that the offence under s. 117

is a different offence to the offence under s. 9 of the Indian Salt Act.”

A person guilty of abetment of an offence under s. 9 (a) of the Salt Act,
1882, may be convicted and sentenced under s. 1 17, 1. P. C., if the abetment was of
the commission of the offence by the public generally or by any number or class of
persons exceeding ten (o).

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of the accused) as follows : —

That you on or about the day of , at , abetted the

commission of the offence of by numbering more than ten persons

(or the public generally) by ( state the act done by the accused in instigation), and
thereby committed an offence punishable under s. 1 17 of the Indian Penal Code,
and within my cognizance (or the cognizance of the Court of Session),

Where a person abetted twelve coolies to break their contract, held, that each
breach of the contract was a separate offence and as the offence abetted under this
section must be a collective offence, the accused was not punishable under this
section (p). Where accused visited a village B, and stated that the British Raj had
come to an end or was about to do so and exhorted the people to hold a Diwan
and take steps to establish an independent State at B , and immediately after his
departure an unlawful association was formed and his son was made the secretary
and his brother the vice-president, and he told the people to raise a subscription,
the Lahore High Court held that the accused * instigated ’ the formation of an
association which was unlawful under s. 15 (2), Criminal Law Amendment Act,
and therefore abetted its formation under Ss. 107 and 108, I. P. C., and accused’s
conduct amounted to an abetment of an offence and as the abetment in that case
was the commission of an offence by a class of persons clearly exceeding ten, accused
was guilty of an offence under this section (q). A procession was organised to
hold a meeting in the Calcutta Maidan and the police-officer on duty showed a
processionist a notice by the Commissioner of Police, Calcutta, prohibiting all

(l) Parimal Chattcrjee , (1932) 36 C. W. N, 982.

(m) In re, Kunda Satyatdama , (1931) 55 M. 90.

(n) (1930) 55 B. 353: 33 Bom. L. R. 56 not approving Oudh Bar Association,
Lucknow , (1930) 7 O. W. N. 895.

(o) Joti Prasad Gupta , (1931) 53 A. 642: (1931) A. L. J. 986.

(p) (1865) 3 W. R. (Cr.) 24.

(q) Mihan Singh # (1923) 5 L. 1.

184

THE INDIAN PENAL CODE

[CHAP. V

processions and the same police-officer deposed that the accused gave orders to the
members joining the procession to disobey the order of the Commissioner of Police
and although the processionists were peaceful, evidence was that some brickbats
were thrown by the crowd and thereupon the police assaulted some of the pro-
cessionists, it was held that the accused was guilty under s. 1 17, and other
sections of the Penal Code or special or local law. The Magistrate did not, how-
ever convict the accused persons under s. 117, but convicted them under
s. 147, I. P. C., and 188, I. P. C. The High Court affirmed the conviction and
sentence (r).

Procedure — same as for the offence abetted. An offence under this sec-
tion and s. 17 (1), Criminal Law Amendment Act, can be tried as a sum-
mons case (s). It is easy for the prosecution to prove the charge under this section
but very difficult for the defence to meet it since it is not necessary to prove that
the offence abetted should be committed.

118 . Whoever, intending to facilitate or knowing it to be

Concealing design to likely that he will thereby facilitate the com-
a bie™ 1 wit h CD dea^h mb or mission of an offence punishable with death
transportation for life— or transportation for life,

voluntarily conceals, by any act or illegal omission, the
existence of a design to commit such offence or makes any repre-
sentation which he knows to be false respecting such design,
shall, if that offence be committed, be punished with im-
u offence be committed ; prisonment of either description for a term

which may extend to seven years, or, if the offence be not com-
if offence be not mitted, with imprisonment of either descrip-
committed. li on f or a t e r m which may extend to three

years and in either case shall also be liable to fine.

Illustration . *

A , knowing that dacoity is about to be committed at B, falsely informs the Magis-
trate that a dacoity is about to be committed at C, a place in an opposite direction
and thereby misleads the Magistrate with intent to facilitate the commission of the
offence. The dacoity is committed at B in pursuance of the design. A is punishable
under this section.

This section punishes concealment of a design to commit offence punishable
with death or transportation for life.

Procedure Not Bailable, if the concealment is of an offence punishable
with death or transportation for life and the offence is committed. Bailable, if the
offence be not committed ; in other respects the procedure is the same as in the
case of the offence abetted. *

Charge 1 (name and office of Magistrate , etc.) hereby charge you (name of
the accused ) as follows

That you —on or about the day of - — ,at with

the intention of facilitating or with the knowledge that you will thereby facilitate

the commission of the offence of (specify the act ) or omit to do (specify

the omission) to conceal the existence of the design to commit the said offence, and
thereby committed an offence punishable under 8. 1 18 of the Indian Penal Code,
and within my cognizance (or the cognizance of the Court of Sessions).

And I hereby direct that you be tried (by the said Court) on the said charge.

(r) Rantendra Chandra Roy , (1931) 58 C. 1303: 35 C. W. N. 716 (Subhash
Bo*e 3 s case).

(s) Narasimha Narain Chanter , 33 Bom. L. R. 363 : A. I. R. (1931) Bom. 199.

SEC. 110]

OP ABETMENT

185

Voluntary concealment : — Knowing of a. design to commit a dacoity, and
voluntarily concealing the existence of that design with the knowledge that such
concealment would facilitate the commission of dacoity, does not amount to an
abetment of the dacoity (t).

. 119 . Whoever, being a public servant intending to facili-

Public servant con- l f e f k ?°^. n g * f> be like !y . that ba will
ccaiing design to com- thereby lacilitate the commission of an

his* duty” to prevent— °^ ence which it is his duty as such public
servant to prevent,

voluntarily conceals, by any act or illegal omission, the exist-
ence of a design to commit such offence, or makes any repre-
sentation which he knows to be false respecting such design,

shall, if the offence be committed, be punished with im-

if offence be committed; P™onment of any description provided for
the offence, tor a term which may extend
to one-half of the longest term of such imprisonment, or with
such fine as is provided for that offence, or with both ;

or, if the offence be punishable with death or transportation
for life, with imprisonment of either des-
abifwhh death, p ctc sh ' cription for a term which may extend to ten
years ;

or, if the offence be not committed, shall be punished with
imprisonment of any description provided
mitted” 06 be n °* C ° m f° r the offence for a term which may extend
to one-fourth part of the longest term of
such imprisonment, or with such fine as is provided for the
offence, or with both.

Illustration.

A, an officer ol police, being legally bound to give information of all designs to
commit robbery which may come to his knowledge and knowing that B designs to
commit robbery* omits to give such information, with intent to facilitate the cpm-
mission of that offence. Here A has by an illegal omission concealed the existence
of B's design, and is liable to punishment according to the provision of this section.

Public Servant— s. 21.

This section punishes a public servant concealing design to commit offence
which it is the duty of such public servant to prevent.

Procedure : — Cognizable or compoundable according as the offence abetted
is either cognizable or compoundable and bailable and triable^ by the Court by
which the offence abetted is traible, non-bailable if the offence is punishable with
death or transportation for life, and bailable if the offence be not committed.

Charge s — See form under s. 118 with the following modification : —

You, on or about the day of— yyat , being a public servant

whose duty it was to prevent the commission of the offence of with the

intention of facilitating, etc.

(t) Jhugroo, (1866) 4 W. R, (Cr.) 2.

186

THE INDIAN PENAL CODE

[CHAP. VA

120. Whoever, intending to facilitate or knowing it to
Concealing design to be likely that he will thereby facilitate the
commit offence punish- commission of an offence punishable with

able with imprison- ... r

ment— imprisonment,

voluntarily conceals, by any act or illegal omission, the
existence of a design to commit such offence, or makes any
representation which he knows to be false respecting such design,

shall, if the offence be committed, be punished with im-
r « i prisonment of the description provided for

if ollcncc be committed, Tl /r t . i • 1 ^ j

the offence, for a term which may extend

to one-fourth, and, if the offence be not committed, to one-
if offence be not com- eighth, of the longest term of such im-
miltcd - prisonment, or with such fine as is provided

for the offence, or with both.

This section is the same as s. 118 with this modification that s. 1 18 relates
to ‘ offence punishable with death or transportation for life \ whereas this section
extends the same principle to an ‘ offence punishable with imprisonment \

Procedure : — Cognizable— if arrest for the offence abetted may be made
without Warrant but not otherwise ; rest, according to the procedure for the offence
abetted— Bailable according as the offence abetted is bailable or not — if the offence
be not committed — Bailable.

Charge— same as under s. 118.

CHAPTER VA.

Criminal Conspiracy.

Definition ol crimi- 120-A. When two or more persons agree
uai conspiracy. to do, or cause to be done, —

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agree-
ment is designated a criminal conspiracy :

Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.

Explanation — It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely incidental to
that object.

Legislative changes : — This Chapter was inserted by s. 3 of the Indian
Criminal Law Amendment Act, (VIII of 1913).

Essential ingredients of a criminal conspiracy are (I) agreement between
two or more persons to do (a) an illegal act, or (b) an act which is not illegal by illegal

CRIMINAL CONSPIRACY

SfcC. 120 * A]

187

means, (2) the agreement referred to in this section must be followed by an overt
act besides the agreement.

In English law the term ‘ conspiracy ’ is divisible into three heads : — (1) Where
the end to be attained is in itself a crime, (2) where the object is lawful, but the
means to be resorted to are unlawful, (3) where the object is to do an injury to
third party, or a class, though, if the wrong were inflicted by a single individual, it
would be a wrong, and not a crime (u).

The Law in England is summarised as follows : —

“As a matter of procedure it would seem that if A is indicted and tried alone
for conspiring with others, he could be lawfully convicted, though the others re-
ferred to or included in the indictment had not appeared or pleaded or were dead
before or after the indictment was preferred or before they pleaded not guilty or
were subsequently and separately tried. But it is not settled whether in cases of
separate trials of conspirators the acquittal of those tried latter would avoid the con-
viction of one earlier tried and convicted of the same conspiracy " (v).

Scope — has been explained by the Statements of Objects and Reasons vide
Gazette of India (1913) Part V, p. 44 as follows

M The sections of the Indian Penal Code which deal directly with the subject of
conspiracy are those contained in Chapter V and section 121 -A of that Code. Under
the latter provision it is an offence to conspire to commit any of the offences punish-
able by section 121 of the Indian Penal Code or to conspire to deprive the King
of the Sovereignty of British India or of any part thereof, or to overawe, by means
of criminal force or the show of criminal force, the Government of India or any
Local Government, and to constitute a conspiracy under this section it is not neces-
sary that any act or illegal omission should take place in pursuance thereof. Under
section 107 abetment includes the engaging with one or more person or persons
in any conspiracy for the doing of a thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that thing. In other
words, except in respect of the offences particularised in section 121 -A, conspiracy
per se is not an offence under the Indian Penal Code.

“On the other hand, by the Common Law of England, if two or more persons
agree together to do anything contrary to law, cr to use unlawful means in carrying
out of an object net otherwise unlawful, the persons, who s:> agree, commit the
offence of conspiracy. In other words, conspiracy in England may be defined
as an agreement of two or more persons to do an unlawful act or to do a lawful
act by unlawful means, and the parties to such a conspiracy are liable to indictment.

“ Experience has shown that dangerous conspiracies are entered into in India
which have for their object aims other than the commission of the offences specified
in section 121 -A of the Indian Penal Code, and that the existing law is inadequate
to deal with modern conditions. The present Bill is designed to assimilate the
provisions of the Indian Penal Code to those of the English law with the additional
safeguard that in case of a conspiracy other than a conspiracy to commit an offence
some overt act is necessary to bring the conspiracy within the purview of the
criminal law. The Bill makes criminal conspiracy a substantive offence,
and when such a conspiracy is to commit an offence punishable with
death, transportation or rigorous imprisonment for a term of two years
or upwards, and no express provision is made in the Code, provides a
punishment of the same nature as that which might be awarded for the
abetment of such an offence. In all other cases of criminal conspiracy the punish-

. (u) Parnell, (1881) 14 Cox c.c. 508.

(v) Russel on Crimes and Misdemeanour, 8th Edition, Vol. I, p. 152.

THE INDIAN PENAL CODE

188

[CHAP. VA

ment contemplated is imprisonment of either description for a term not exceeding
six months or with fine or with both/*

Agreement The gist of the offence under this section is conspiracy or
agreement between the accused persons (w). A person may be guilty of criminal
conspiracy even though the illegal act which he has agreed to do has not been done,
for the ' crime of conspiracy consists only in the agreement or confederacy to do
an illegal act by legal means or a legal act by illegal means * (x). In cases of con-
spiracy the agreement between the conspirators cannot generally be directly proved
but only inferred from other facts proved in the case (y).

Illegal act : — The word ' illegal * has been defined in s. 43. Tindal, C. J.,
observed as follows : “ The crime of conspiracy is complete, if two or more than
two should agree to do an illegal thing, that is to effect something in itself unlawful
or to effect by unlawful means something which in itself may be indifferent or
even lawful. It has accordingly been always held to be the law that the gist of the
offence of conspiracy is the bare engagement or association to break the law, whether
any act be done in pursuance thereof by the conspirators or not’* (z).

Illegal means: — If one conspires with another to employ illegal means to
achieve a legal purpose, he may be convicted of conspiracy, c.g ., a woman, who
believing herself to be with child, but not being with child, conspires with other
persons to administer drugs to herself, or to use instruments on herself, with in-
tent to procure abortion, is liable to be convicted of conspiracy to procure
abortion (a). -

Overt act: — When the proof of a conspiracy depends upon proof of the
participation of the accused in an overt act which itself amounts to an offence,
the proper course is to put the accused on their trial for that offence (b). Overt
acts may properly be looked at as evidence of the existence of a concerted inten-
tion and in many cases it is only by means of overt acts that the existence of the
conspiracy can be made out. But the criminality of the conspiracy is independent
of the criminality of the overt act (c). The definition in s. 120-A excludes
the agreement to commit an offence from the category of such conspiracies in
which it is necessary that the agreement should be followed by some act (d).

The prosecutor is not bound to prove a conspiracy by direct evidence of the
agreement to do an unlawful act. It the facts proved are such that the Jury as
reasonable men can say that there was a common design and the prisoners were
acting in concert to do what is wrong, that is evidence from which the Jury may
suppose that a conspiracy was actually formed (e).

Charge -A charge for an offence under s. 120-A need not set out in
all its details the specific acts which the conspirators are alleged to have agreed
to do or to cause to be done (f).

(w) Osman Sardar , (1923) 39 C. L. J. 204.; Kasem ali , (1926) 45 C. L. J. 204.

(x) Amrita Lai Hazra, (1914) 42 C. 957: 19 C. W. N. 670: 21 C. L. J. 331 j

10 Cr. L. J. 497: 29 1. C. 513. J

(y) Khctgendra Nath Chaudhari, (1914) 19 C. W. N. 706,

(*) O’Connel, (1844) 11 C L. & F. 155, (233, 235), cited in Amrita I.al Hazra.
(1014) 42 C. 957 (979).

(a) Whitchurch. 24 Q. B. D. 420.

(b) O’Connel, (1844) 11 Cl. and F. 155 : 1 Cox. 413.

(c) Putin Bthary Das, (1912) 10 C. W. N. 1105: 16 C. L. J. 617.

(d) Nirmal Chandra De, (1926) 31 C. W. N. 239; see Gour Chandra Das (1928)

32 C. W. N. 1004 : A. I. R. (1929) C. 14. ' '

(e) Putin Behari Das, (1912) 10 C. W. N. 1105.

(I) Htin Gyaw, (1927) 6R.6,

SEC. 120-B]

CRIMINAL CONSPIRACY

189

120-B. (1 ) Whoever is a party to a criminal conspiracy to
commit an offence punishable with death.
Punishment of cri- transportation or rigorous imprisonment
minai conspiracy. f 0 r a term of two years or upwards, shall,

where no express provision is made in this
Code for the punishment of such a conspiracy, be punished in
the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than
a criminal conspiracy to commit an offence punishable as afore>
said shall be punished with imprisonment of either description
for a term not exceeding six months, or with fine or with both.

This section provides the punishment for criminal conspiracy (g), and it
has the effect of bringing the law as to conspiracy in India into line with the Eng lish
law (h).

Scope : — The gist of the offence under this section is an agreement between
the accused persons (i), or common intention and not in acts (j). Merely that
a person was an associate of the persons who were party to a criminal con-
spiracy is not of itself sufficient for the foundation of the conviction of that
person ; nor can the fact that the person was endeavouring to extricate himself
from being accused of anything connected with the conspiracy help the case

against such person (k).

+

This section is not retrospective in its operation, but before this section came
into force, the law of abetment included abetment by conspiracy (1).

The ingredients of the offence of conspiracy are : —

(1) that there should be an agreement between the persons who are alleged
to conspire ; and

(2) that the agreement should be —

(f) for doing of an illegal act, or

(it) tor doing by illegal means an act which may not itself be illegal (m).

It was pointed out by Willes, J. f in Mulcahy (8 C. and P. 297) that a “conspiracy
consists not merely in the intention ot two or more, but in the agreement of two
or more to do an unlawful act or to do a lawful act by unlawful means. So long
as such a design rests in intention only it is not indictable The Allahabad
High Court following this decision held that it is necessary for the prosecution to
prove that there were two or more persons agreeing for the purpose of conspiracy (n).

When persons accused of conspiracy are sought to be made liable on the
basis cf a cipher code, it is safer tq require the prosecution to establish the guilt
of each by extrinsic and further evidence corroborating the cipher code, though

(g) Amrita Lai Hazra , (1914) 42 C. 950 (974).

(h) Osman Sardar, (1923) 39 C. L. J. 204 ; Abdul Salim , (1921) 49 C. 573 (591)
20 C. W. N. 680 (685) : 35 C. L. J. 279 : 23 Cr. L. J. 657 : A. I. R. (1922) Cal. 107.

(i) Osman Sardar , (1923) 39 C. L. J. 264 (267).

(j) Billinghurst, 27 C. W. N. 821 : A. I.. R. (1924) Cal. 18.

(k) Rakhal Chandra Das t A. I. R. (1930) Cal. 647 (S. B.).

(l) Monmohan Roy, (1915) 20 C. W. N. 292 : 17 Cr. L. J. 439: 35 I. C. 999.

(m) Chandiram, (1925) 27 Cr. L. J. 286 : 92 I. C. 462.

(n) Gulab Singh , (1916) 14 A. L. J. 688 (697, 699) : 35 I. C. 991 : Nirmal

Chandra De t (1925) 31 C, W, N. 239.

THE INDIAN PENAL CODE

190

[CHAP. VA

it would not be illegal to require each of the accused to displace by positive evi-
dene the initial inference against him (o).

Procedure The offence under cl. (I) Cognizable, if the offence which is
the pbject of the conspiracy is cognizable, but not otherwise — Warrant or Sum*
mons — Bailable or Net Bailable as the offence which is the object of the conspiracy
is bailable or not — Not Compoundable— Triable by the Court of Session
if the offence which is the object of such conspiracy is triable exclusively by ruch
Court but in the case of all other offences — triable by Court of Session, Presidency
Magistrate or Magistrate of the first class.

If the offence falls under cl. (2) — Non-cognizable, Summons, Bailable and
Not Compoundable and is triable by Presidency Magistrate or Magistrate of the
first Class.

Charge:— In an indictment for conspiracy the summons and conviction
ought to specify the acts which the informant had a lawful right to do (p). It
has been held that facts which are necessary ingredients of the particular offence in
question should be set out in the indictment (q). In a charge of conspiracy the
charge cannot be maintained without the persons who are known, being definitely
named. And the Calcutta High Court held further that it was a legal impossibility
when several persons were charged with the same conspiracy and some with
another, any accused not shown to be a member of that conspiracy must be ac-
quitted (r). An accused is entitled to know with certainty and accuracy the exact
nature of the charge brought against him (s). It has been held, however, in Htin
Gyaw's case (t), that a charge under this section need not set out in detail the
specific a£ts which the conspirators are alleged to have agreed to do or cause
it to be done. *

Joinder of charges A charge of criminal conspiracy to manufacture arms
under this section read with s. 19 (a) of the Arms Act may be tried jointly with
charges under s. 19 (f) and 20 of the latter act committed in pursuance of the
object of the conspiracy (u). The same person may be charged under s. 121 -A
as well as under s. 123 of the Code (v). A charge of conspiracy may be legally
joined with individual charges of every distinct offence committed in pursuance of
the conspiracy by different members of it on different dates. The Calcutta High
Court held further that a charge under Ss. 120-B and 420, of conspiracy to
cheat a person by deceiving him by means of 22 forged documents and by state-
ments and conduct and thereby fraudulently and dishonestly inducing him to pay
different sums of money to 22 different persons in pursuance of which conspiracy
the said person was deceived, was not bad as contravening the provisions of s. 233,
Cr. P. Code (w).

The charge should run as follows

1 (name and office of Magistrate , etc.) hereby charge you (name of the
accused ) as follows: —

(o)

IS

8

ft

_ .W

Bartndra
(w)
Cf. L. J.

In dr a Chandra Narang, (1929) 30 Cr. L. J. 040 (F. B.) : 110 I. C. 756.
McKenzie, (1892) 2 Q. B. 619.

Smith V. Moody, (1903) 1 K. B. 66.

Lalit Mohan Sarkar, (1911) 38 C. 669 : 15 C. W. N. 98.

Amrita Lai Haera, (1914) 42 C. 967 (case under s. 121-A).

(1927) 6 R. 0.

Harsha Nath Chatterji, (1914) 42 C. 1153.

Putin Behary Das, (1911) 16 C. W. N. 1105 (1136) : 16 C. L. J. 617, following
Kumar Ghose, (1910) 37 C. 407: 14 C. W. N. 1114.

Abdul Salim, (1921) 49 C. 573 : 20 C. W. N. 680 : 35 C. L. J. 279- 23
667 : A. I. R. (1922) C. 107. •*

SEC. 120-B ]

CRIMINAL CONSPIRACY

191

That you, on or about the day of , at ■, agreed with

( name of the co-conspirator) to do (or caused to be done) an illegal act, to wit

(or an act to wit which is not illegal by illegal means to wit ) and

that you did some acts, to wit besides the agreement in pursuance of the

said agreement to commit the offence of punishable with death (or

transportation, etc.), and thereby committed an offence punishable under s. 120-B
of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Sanction No Court shall take cognizance of the offence of criminal con-
spiracy under this section unless the local government or a Chief Presidency
Magistrate or District Magistrate empowered in this behalf by the local govern-
ment has, by order in writing, consented to the initiation of proceedings : Provid-
ed that where the criminal conspiracy is one to which the provisions of sub-section
(4) of s. 195 apply no such consent is necessary (x). A Court cannot take cogniz-
ance of an offence under this section (120-B) without sanction as required under
s. 196 (a) of the Code of Criminal Procedure (y).

Sanction has to be proved : — Where the sanction was signed by one Mr.
Cassels, Deputy Secretary for the Chief Secretary, it was held that such order
signed by the Deputy Secretary for the Chief Secretary was not in proper form
and inasmuch as proceedings based thereon were quashed, sanction of the
Chief Secretary is required to be proved (z). S. 196-A, Cr. P. Code, only renders
sanction necessary when the prosecution is for criminal conspiracy punishable
under s. 120-B. It does not alter the former law that a prosecution for abetment
by way of conspiracy punishable under s. 109 requires no sanction (a).

Joint trial : — The legality of a joint trial depends on the accusation, and
not on the result of the trial. The accusation must be a real one and not a mere
excuse for trying the accused with others (b).

Acquittal of one conspirator jointly or subsequently tried— effect on
co*conspirator The rule of English law that is now well settled is that
where two persons are indicted for conspiring together and they are tried
together, both must be acquitted or both convicted, but where they are
separately tried, the acquittal of the one has no effect so far as the other accused
is concerned beyond suggesting that some of the evidence upon which the other
accused was convicted was on a different trial ofanother accused person found
unworthy of acceptance (c). Where two persons are indicted for conspiring
together and they are tried together, both must be acquitted or both convicted . A
conviction for conspiracy cannot stand when the charge against the other alleged
conspirator has failed (d).

Only three accused alleged to be conspirators —Two acquitted and
its effect on the other accused -Where the conspiracy alleged in the charge
is one in which only three persons are said to have been participators and one was

(x) See S. 196-A, Criminal Procedure Code of 1923.

(y) Sit kit mar Chatter ji V. Mofuuddin Ahmed , (1921) 25 C. W. N. 357 : 22
Cr. L. J.455: 61 I. C. 839.

(z) Md. Oziullah V. Beni Madhab Chowdhury , (1922) 26 C. \V. N. 878.

a) Abdul Salim , (192449 C. 575 (596) ; 35 C. L. J. 279: 26 C. \V. N. 680
(688) : 23 Cr. L. J. 657 : 69 I. C. 145 : A. I. R. (1922) C. 107, followed in Ramrao
Burde, (1932) 34 Bom. L. R. 598.

(b) Ibid., followed in Abdul Rahman , (1924) 3 R. 95.
c) Per Mukherji, J., in /. G. Singleton, (1924) 29 C. W. N. 260 (265, 267)
A. I. R. (1926) C 501 : 41 C. L. J. 87.

(d) Manning , (1882) 12 Q. B. D. 241 ; Thompson, (1851) 16 Q. B. 832 ; O’Connel,
(1844) 11 Cl. and F. 156; J. G. Singleton , (1924) 29 C. W. N. 260 : 41 C. L. J. 87
A. I. R. (1925) C. 501. See Prafulla Kumar Roy Chowdhury, (1925) 30 C. W. N. 94.

102

THE INDIAN PENAL CODE

[CHAP. VA

acquitted by the Magistrate and the other by the High Court on appeal, held, that
the third accused was entitled to an acquittal as a matter of course (e).

When a bomb was found in a baitakkhana ghar in a house to which all the
members of the family has access, it could not be held that any particular member
was in possession of the bomb (f), but a contrary view has been held in Hari
Narains case (g).

Evidence of conspiracy : — Direct evidence is hardly available and it is often
tainted, so conviction is generally based on circumstantial evidence as was re-
marked by Sir Lawrence Peel, C. J., in the case of R. V . Hadger, cited in Starkie on
Evidence, p. 132 (1852). “It is perfectly true that the dark covertness of crime
cannot often be laid open, that conspiracies like other crimes must be generally
supported by circumstantial proof " (h).

It is impossible in the nature of things to have direct evidence of a criminal
conspiracy unless some one member of the conspiracy turns King's evidence (i).

Gross, J., in R. V, Brisac, observed : “ Conspiracy is a matter of inference
deduced from certain criminal acts of the parties accused done in pursuance of an
apparent criminal purpose in common between them and which hardly ever are
confined to one place ” (j).

A man's guilt is to be established by proof of the facts alleged and not by
proof of his character. It was further held • “ It is well settled that in a charge of
conspiracy, general evidence of the existence of the conspiracy may first be given
before particular facts are proved to show that one or more of the accused took part
in it M (k)* Conspiracy may be proved from circumstances (1). In cases of con-
spiracy, the agreement between the conspirators cannot generally be directly
proved but only inferred from the established facts of the case. Where two per-
sons took a house m which a considerable number of pieces of fire-arms was found
with tools and implements, and work had been actually done to some of the parts
of the fire-arms, the Court may and ought to infer a conspiracy to manufacture
arms (m).

To establish a charge of conspiracy there must be agreement ; there need not
be proof of direct meeting or combination nor need the parties be brought into each
other’s presence. The agreement may be inferred from circumstances raising a
presumption of a common concerted plan to carry out the unlawful design. It is
not necessary that all should have joined in the scheme from the first. Those who
come in at a later stage are equally guilty, provided the agreement be proved (n).
The crime of conspiracy lies in the concerted intention to be gathered from the acts
done ; such acts preceding the entry of a particular person into the combination
are evidence to show the nature of the concert to which he becomes a party, and
subsequent acts of the other member? indicate further the character of the common
design in which all are presumed to be equally concerned (o). In conspiracy trials

(e) Prafulla Kumai Roy Chowdhwy, ( 1 925) 30 C. W. N. 9 1, overruled in Barendra
Kumar Ghosh, 52 I. A. .0 (P. C.) on a construction of s. 34.

(f) Jogjiban Ghose, 9 C. L. J. 604.

(g) (1926) 46 C. L. J. 368 : A. I. R. (1928) C. 27.

(h) Monmohan Roy , (1915) 20 C. W. N. 292 (294) : 17 Cr. L. J. 439: 35 I. C.

999; Gour Chandra Das, (1928) 32 C. W. N. 1004.

(i) Mukundlal Sircar, (1930) M. W N. 1264.

(j) Brisac, 4 East, 166 (109); Putin Behary Das , 16 C. W. N. 1105 (1152).

(k) Amritalal Hazra , (1914) 42 C. 957 : 19 C. W. N. 676 : 21 C. L. J. 331 : 16
Cr. L. J. 497: 29 I. C. 513.

(l) Abdulla, (1926) 21 S. L. R. 244: A. I. R. (1928) S. 73; Gour Chandra Das
(1928) 32 C. W. N. 1004.

(m) Harshanatk Chatter ji, (1914) 42 C. 1153.

(n) Barindra Kumar Ghose, 37 C. 467, (507) : 14 C. W. N. 1114 (1134).

(o) Wright on Conspiracies, p. 71, quoted in Putin Behary Das , (1911) 16 C. W. N,

1150 (1152) (Anushi lan Samiti Case).

SEC. 120-B]

OF OFFENCES AGAINST THE STATE

193

Courts must never lose sight of the principles enunciated in 8. 10 of the Evidence
Act that before anything said, done or written by any one alleged member of a
conspiracy can be used as evidence against another or against all, the Court must
have reasonable ground for believing that a conspiracy between them had existed,
i.e., an agreement amongst them that unlawful acts should be committed. The
words and acts of any member of the conspiracy in reference to the common
intention are relevant to determine the exact scope and details of the intention
cf any member or of all members of the conspiracy (p).

Where the accused were charged under Ss. 302 and 120-B on the assumption
that they were all members of a conspiracy for committing these offences, and these
offences were committed, it was held that the charge was bad in law. M It is true
thajt where a conspirator is present at the commission of the offence, he may,
under the provisions of s. 1 14 of the Code, be deemed to have committed the
offence, but if that is the way in which the accused are all to be made responsible
for the offences, they should be specifically charged with such offences, as read
with s. 114” (q).

Misdirection : — The summing up was held to be unexceptionable where the
jury were asked to find the accused guilty of abetment, although they did not find a
conspiracy if they believed the evidence (r). The main charge being of conspiracy
it was the province of the jury to ascertain from the facts proved before them
whether the conspiracy alleged by the prosecution was established by evidence (s).

Failure to establish conspiracy— Charge not vitiated : — The test in such
cases is whether prejudice has or has not been caused, on a consideration only of
this question whether his act was so connected with the subject-matter of the previous
charges as to form a single transaction and it was held that the trial was not vitiated
but covered by s. 239(d), Cr. P. Code (t).

CHAPTER VI.

Of Offences against the State.

This chapter deals with four principal offences, viz., (I) Waging War against
the Kingfsee Ss. 121, 121 -A, 122, 123) ; (2) Overawing the Government by assaulting
Governor-General or Governor (s. 124) or by sedition (s. 124-A) ; (3) Waging War
against any Asiatic Power (Ss. 125, 126, 127) and (4) suffering or aiding escape or
rescuing or harbouring a state prisoner of war (Ss. 128, 129 and 130).

Sanction : — No Court shall take cognizance of any offence punishable under
this Chapter unless upon complaint made by order of, or under authority from,
the Governor-General in Council, the Local Government, or some officer em-
powered by the Governor-General in Council in this behalf (u). Absence of such
complaint vitiates proceedings (v), and cannot be cured by subsequent order of the
Government (w). Sanction has to be proved (x).

(p) Mukundalal Sircar , (1930) M. W. N. 1264.

(q) Per Mukherji, J., in AUmuddin Naskar, (1924) 62 C. 263 (266).

(r) Satya Narayan Mohata, (1927) 66 C. 868 (867).

(s) Ping, (19201 63 B. 479 : 31 Bom. L. R. 646.

(t) Gopal Raghunath, (1928) 63 B. 344: 31 Bom. L. R. 148.

(u) S. 196, Criminal Procedure Code.

(v) Pulin Behary Das , (1910) 16 C. W. N. 1106 : 16 C. L. J. 617.

(w) Barindra Kumar Ghose, (1909) 37 C. 467 : 14 C. W. N 1114.

(x) Varadarajulu Nayudu (1919) 42 M. 180 : 37 M. L. J. 81,

19

194

THE INDIAN PENAL CODE

[CHAP. VI

121* Whoever wages war against the Queen, or attempts
to wage such war, or abets the waging of such
war, shall be punished with death, or trans-
portation for life, [and shall also be liable
to fine].

Waging or attempt-
ing to wage war or
abetting waging of war
against the Queen.

Illustrations.

(a) A joins an insurrection against the Queen. A has committed the offence
defined in this section.

(b) A in India abets an insurrection against the Queen’s Government of Ceylon
by sending arms to the insurgents. A is guilty of abetting the waging of war against
the Queen.

Legislative changes : — The words * and shall also be liable to fine * were
substituted (or the words 4 and shall forfeit all his property * by s. 21 of the Indian
Penal Code (Amendment) Act, (XVI of 1921).

Analogous law : — This section is analogous to the English law of high treason
but the language used in this section is 4 whoever wages war,' whereas in English
law of treason, 4 levying war ' has been enacted in 25 Edw., III. Stat. 5, c. 2.

Scope : — This section does not reproduce the English law of treason in its
entirety (y).

In order to convict an accused under this section it is necessary to find a clear
ana direct incitement to action as distinguished from a state of mind. Thus where
accused in a speech contemplated the establishment of parallel Government inde-
pendent of British control by peaceful and non-violent means but he dipped into
future and apprehended that in certain circumstances Muhammadans in future
would carry on gorilla warfare, it was held that the accused was not guilty (z).
The offence under this section is a continuing offence (a).

Procedure : — Non-cognizable — Warrant — Not bailable — Not compound-*

able — Triable by a Court of Sessions.

Sanction of the Government is required for prosecution under this section (b).
Jenkins, C. J., held that the Local Government by its order cannot give its legal or
other advisers a roving power to determine under what sections of Chapter VI
proceedings should be taken (c).

Charge I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused person ) as follows : —

That you j — on or about the day of , at

- f waged war (or attempted to wage war, or abetted the waging of

war) against His Majesty the King Emperor of India and thereby committed an
offence punishable under s. 121 of the Indian Penal Code, and within the cogni-
zance of the Court of Sessions (or when the charge is framed by Presidency
Magistrate for Court of Sessions, substitute High Court).

See Form No. XXVIII (I) Sch. V, Criminal Procedure Code.

Whoever : — This section applies to British subjects by birth or naturalisation
as also to foreigners by residence.

Wages war : — This section derls with three stages of waging war against
the King, (I) actual war, (2) attempt and (3) abetment.

Criminal conspiracy to wage war~is not punishable under s. 121 A,
added by Act XXVII of 1870.

(y) Barindra Kumar Ghose , (1909) 37 C. 407 (605).

(z) Hasrat Mohani , (1922) 24 Bom. L. R. 885 : 24 Cr. L. J. 923 : 75 I. C. 299:
A. I. R. (1922) Bom. 284.

(a) Manuya (1920) 49 M. 74 : (1925) M. W. N. 192.

(b) S. 196, Cr. P. Code.

(c) Barindra Kumar Ghose , (1909) 37c. 407 r

SEC. 121]

OF OFFENCES AGAINST THE STATE

195

This section read with s. I2I-A punishes conspiracies for abetment and attempt
to wage war as the offence of actually waging war.

“ There is a diversity between levying of war and committing of a great riot,
a rout or an unlawful assembly. For example, if three or four or more do rise to
burn or put down an enclosure in Dale, which the Lord of the Manor in Dale hath
made in that particular place; this or the like is a riot, a rout or an unlawful assembly,
and no treason. But if they had risen of purpose to alter religion established within
the realm of laws, or to go from town to town generally, and to cast down enclosures,
this is levying of war (though there be no great number of the conspirators within
the purview of this statute), because the pretence is public and general, and not
private in particular*' (d).

Though to establish a charge of conspiracy there must be agreement, there
need not be proof of direct meeting or combination, nor need the parties be brought
into each other's presence. The agreement may be inferred from circumstances
raising a presumption of a common concerted plan to carry out the unlawful design.
Nor is it necessary that all should have joined in the scheme from the first ; those
who come in at a later stage are equally guilty, provided the agreement be proved (e).

Waging war : — The expression ‘ waging war ' must be construed in its
ordinary sense, and a conspiracy to wage war, or the collection of men, arms and
ammunition for these purposes is not waging war (f).

Where the object of the mob was not merely resistance to the District Magis-
trate or any isolated action or any particular purpose, but the total subversion of the
British power, the Madras High Court held that the accused was guilty of the offence
of waging war against the King (g).

Under the English law, levying war against the Sovereign implies an open
rebellion against the King for the purpose of deposing or imprisoning him or of
getting him into the power of rebels or of forcing him to put away his Ministers or
of overthrowing his Government (g 1 ). There must be an insurrection, and there
must be force accompanying the insurrection and the object must be of a general
nature (g ).

If a British subject does an act which strengthens the enemies of the King,
he is said to aid and give comfort to the King’s enemies within the meaning of the
Treason Act, 1351 (25 Edw. Ill, Stat. 5, c. 2) (g 3 ).

Abetting the waging of war Respecting this point the Authors of the
Code say as follows: —

" We have made the abetting of hostilities against the Government, in certain
cases, a separate offence, instead of leaving it to the operation of the general law
laid down in the Chapter on abetment. We have done so for, two reasons. In the
first place, war may be waged against the Government by persons in whom it is
no offence to wage such war by foreign princes and their subjects. Our general
rules on the subject of abetment would apply to the case of a person residing in

(d) Coke, 3 Inst. 9.

(e) Batin dr a Kumar Ghose, (1909) 37 C. 467 5* 14 C. W. N. 1114 (1142): II
Cr. L. J. 463 : 7 I. C. 369.

S Ibid.

\ Umayyathen Tagath Putken Venkil Kunchi Kadir, 42 M. L. J. 103: (1922)
M. W. N. 71 : 30 M. L, T. 126 : 16 L. W. 311 : 23 Cr. L. J. 203 : 66 I. C. 869 ;
following the leading case of Gordon , (1781) 21-St. Trial 486; Frost (1839),
9 C. and P. 129 and Barindra Kumar Ghose , (1909), 37 C. 4 67 : 14 C. W. N.
1114 : 11 Cr. L. J. 463 : 7 I. C. 369.

(gl) 1 Hale, 168, 169.

(g2) Frost, (1839) 9 C. and P. 129.

(g3y Casement , (1917) 1 K. B. 98,

196

THE INDIAN PENAL CODE

[CHAP. VI

British territories who should abet a subject of the British Government in waging
war against the Government ; but they would not reach the case of a person who,
while residing in the British territories, should abet the waging of war by any
foreign prince against the British Government. In the second place, we agree with
the great body of legislators in thinking, that though in general a person who has
been a party to a criminal design which has not been carried into effect, ought not to
be punished so severely as if that design had been carried into effect, yet an excep-
tion to this rule must be made with respect to high offences against the State ; for
state-crimes, and especially the most heinous and formidable state-crimes, have
this peculiarity, that if they are successfully committed, the criminal is almost always
secure from punishment. The murderer is in greater danger after his victim is des-
patched than before. The thief is in greater danger after the purse is taken than
before. But the rebel is out of danger as soon as he has subverted the Government.
As the penal law is impotent against a successful rebel, it is consequently necessary
that it should be made strong and sharp against the first beginnings of rebellion,
against treasonable designs which have been carried no further than plots and,
preparations. We have therefore not thought it expedient to leave such plots
and preparations to the ordinary law of abetment. Under the general law, a con-
spiracy for subversion of the Government would not be punishable at all if the
conspirators were detected before they had done more than discuss plans, adopt
resolutions and interchange promises of fidelity. A conspiracy for the subversion
of Government, which should be carried as far as the gun-powder treason or the
assassination plot against William III, would be punished very much less severely
than the counterfeiting of a rupee, or the presenting of a forged check. We have,
therefore, thought it absolutely necessary to make separate provision for the pre-
vious abetting of great state offences. The subsequent abetting of such offences
may, we think, without inconvenience, be left to be dealt with according to the
general law” (h).

The offence of * abetment * under this section is a distinct and complete offence.
Under the English law “Mere words spoken, however wicked and abominable,
if they do not relate to any act or design then actually on foot against the life of the
King, or the levying of a war against Him, do not amount to treason : And the same
has been held to apply to writings ‘ King v. Andrew Hardie , (1820) I St. Tr.
(N. S.) 610 (625).’ But under the Indian Penal Code, the waging or levying of war
and the abetting of it are put upon the same footing by s. 121, i.e., the abetting of
waging of war is under the Code as much an offence of treason as the waging of
war itself. Where the accused published a book entitled 4 Laghu Abhinava
Bharata Mai ’, i.e., short stories for New India containing eighteen poems and the
general trend of the 4 poems charged as well as the remaining ones in the book,
showed a spirit of blood thirstiness and the words were calculated to preach war
against the British Government in the name of certain gods of the Hindus and
certain warriors as Shi vaji, e.g., “Take up the sword and destroy the Government
because it is foreign and oppressive,” the Bombay High Court held that the accused
committed the offence of abetting the waging of war under s. 121, and further held
that the Court was entitled to look into the poems other than those which were
subject of the charge for the purpose of finding out the intention of the writer (i).

In a case in which the accused was charged with abetting the waging of war
against the Queen under s. 121, it was held that the Calcutta Gazette and the
Gazette of India were admissible in evidence under s. 8 of Act II of 1855 to prove
the proclamation and official communication of the Government relating to the
war (j).

(h) Note C.

(i) Gartesh Damodar Sarvakar, (1900) 34 Bom. 394 (403).

(j) Amiruddin, (1871) 7 Beng. L. R. 03 : 15 W. R. (Cr.) 25.

sfec. 121-A] of offences against the state i9^

Constructive treason t— . Lord Mansfield in Gordons case (k) in his charge
to the Jury observed : “ There are two kinds of levying war — one against the person
of the King to imprison, to dethrone, to kill him or to make him change measures
or remove counsellors, the other, which is said to be levied against the Majesty of
the King, or in other words, his regal capacity : as when a multitude rise and
assemble to attain by force and violence any object of a general public nature, that is
levying war against the Majesty of the King ; and most reasonably so held, because
it tends to dissolve all the bonds of secrets^ to destroy property and to overturn
Government, and by force of arms to restrain the King from reigning according to
law ” (k).

121-A. Whoever within or without British India con-
spires to commit any of the offences punish-
n»iwT ra , cy n l °i able by section 121, or to deprive the

by section 121 . ijueen ot the sovereignty or British India

or of any part thereof, or conspires to over-
awe, by means of criminal force or the show of criminal force,
the Government of India or any Local Government, shall be
punished with transportation for life or any shorter term, or with
imprisonment of either description which may extend to ten
years, [and shall also be liable to fine].

Explanation . — To constitute a conspiracy under this sec-
tion, it is not necessary that any act or illegal omission shall take
place in pursuance thereof.

Legislative changes : — This section was added by Act XXVII of 1870, s. 4.
Sir James Stephen who was responsible for the amendment says that it was intended
to be an equivalent of the English Treason — Felony Act, (1 1 and 12 vict.,c. 12, s. 3.)

The words 4 and shall also be liable to fine * were inserted by s. 3 of the Indian
Penal Code (Amendment) Act, 1921 (XVI of 1921).

British India. — See s. 15, supra . Conspires. — See s. 120-A, supra. Queen.—
See s. 13, supra. Criminal force. — See s. 350, infra . Government of India. — s. 16.
Act or omission. — s. 107.

Under the Penal Code this is the only section which deals with conspiracy
and punishes a mere conspiracy to do an illegal act, viz., the offences described in
s. 121. The explanation says: “To constitute a conspiracy under this section,
it is not necessary that any act or illegal omission shall take place in pursuance there-
of." This brings a conspiracy under this section on the lines of the English law of
Treason — Felony Act.

Foster says : — 44 The offence of inciting foreigners to invade the kingdom is
a treason of signal enormity. In the lowest estimation of things and in all possible
events, it is an attempt, on the part of the offender, to render his country the feat
of blood and desolution ; and yet unless the powers so incited happen to be actually
at war with us at the time of such incitement, the offence will not fall within any
branch of the statute of treasons, except that of compassing the King's death ; and
therefore since it hath a manifest tendency to endanger the person of the King, it
hath, in strict conformity to the statute, and to every principle of substantial poli-
tical justice, been brought within the species of treason of compassing the King's
death ; ne quid detriment republica capita (1).

Procedure : — Not cognizable — Warrant— Not bailable — Not compoundable —
Triable by Court of Session.

(k) Lord Gordon's Case^(l784) 21 St. Tr. 486 (490).

(l) Foster, Crown L. 196.

198 THE INDIAN PENAL CODE [CHAP. VI

Sanction— of the Government is a condition precedent to the initiation of
prosecution for an offence under this section (m).

Evidence of such conspiracy : Holt, C. J., said to the Jury i# Loose words
spoken without relation to any act or design are not treason, or an overt act ; but
arguments, and words of persuasion to engage in such design or resolution, and
directing or proposing the best way for effecting it, are overt acts of high treason
likewise consulting together for such a purpose is an overt act of treason ” (n).

‘Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said,
done or written by any one of such persons in reference to their common intention,
after the time when such intention was first entertained by any one of them, is a
relevant fact as against each of the persons believed to be so conspiring, as well for
the purpose of proving the existence of the conspiracy as for the purpose of showing
that any such person was party to it * (o).

Treasonable conspiracy, either by inciting a friendly state to hostility or by
supplying valuable information to the enemy used to be charged in England as an
overt act of compassing the King’s death. It has been held that sending com*
munication to an enemy is high treason, although the letter conveying the commu-
nication to France was intercepted ” (p). Resolutions passed at a previous meeting
at which the accused presided were held admissible as showing the intention of the
persons assembled at the second meeting (q).

A person may bring himself within s. 123 by concealment of the existence of
a design to wage war against the King, and may immediately afterwards join in the
conspiracy to wage war against the King and thereby bring himself within the scope
of s. I2I-A ; held , further that the criminality of the conspiracy is independent of
the criminality of the overt act (r). Where it appeared that certain members of the
Dacca Anusilan Samiti found to be revolutionary were not acquainted with the real
object of the society, not having been admitted to its secrets, the Calcutta High
Court held that it would not be proper to convict such members under s. 121 -A
of the Code (s).

The Madras High Court has held that the essence of the offence is the agree-
ment to do all or any of the unlawful acts mentioned in s. 121 -A. It i? not neces-
sary that any act or illegal omission should take place in pursuance of the agree-
ment (t).

Charge: — Where the accused were charged with conspiracy with persons
known and unknown, held, that if the persons were * known * they should be
named in the charge (u).

Joint trial — of accused on charges under Ss. 121, I2I-A, 122 and 123, was
not bad for misjoinder of persons or charges (v).

Form of Charge : — I ( name and office of Magistrate, etc.) charge you
(name of the accused) as follows : —

That you on or about the day of , at , (if the

place is without British India mention that) conspired to wage war (or to abet the

(m) S. 196, Cr. P. Code.

(n) Per Holt, C. J., in R. V. Charnock, (1690) 12 St. Trial 1377 (1461).

(o) S. 10 of the Indian Evidence Act, IX of 1872.

S ) Stone's case, 6 T. R. 627, see Foster, Crown L. 190.

) Hunt, 6 B. & A. 666.

(r) Putin Behary Das, (1912) 16 C. W. N. 1106 : 16 C. L. J. 617.

(s) Ibid.

(t) Nilkanta, (1912) 36 M. 247 (260) : (1912) M. W. N. 207.

(u) Lalit Mohan Chakravarty, (1918) 38 C. 659 (S. B.) : 16 C. W. N. 98
(v) Bar indr a Kumar Ghose, (1909) 37 C. 467 : 14 C. W. N. 1114.

SEC. 122]

OF OFFENCES AGAINST STATE

199

waging of war) against His Majerty the King Emperor (or conspired to deprive the
King Emperor of the Sovereignty of British India or of some part thereof, or con-
spired to overawe, by means of criminal force or the show of criminal force, the
Government of India or of the Local Government) and thereby committed an
offence punishable under s. 121 -A of the Indian Penal Code and within the cog-
nizance of the Court of Session (or High Court).

And I hereby direct that you be tried by the said Court on the said charge.

122. Whoever collects men, arms or ammunition or
r n .• otherwise prepares to wage war with the in-

with intention of wag- tention or either waging or being prepared
PueeiT ar against the to wage war against the Queen, shall be
" punished with transportation for life or

imprisonment of either description for a term not exceeding ten
years, [and shall also be liable to fine].

This is the only section where a mere preparation to commit an offence, e.g .,
of waging war against the King, is an offence. This section is intended to nip in the
bud treason at the very inception.

Legislative changes : — The words ' and shall also be liable to fine ' have
been substituted for the words ‘ and shall forfeit all his property 9 by s. 2 of the
Indian Penal Code (Amendment) Act, 1921 (XVI of 1921).

Procedure : — Non-cognizable — Not bailable — Not compoundable — Triable
by Court of Session.

Sanction— of the Governor General in Council, the Local Government or
some other officer empowered by the Governor General in Council in this behalf
is required for a prosecution of an offence under this section (w). It was held in
Anant Puranick’s case (x) (reversing the order of acquittal) that the mere fact that
no charge for the grave offence under s. 122 could be framed for want of Govern-
ment sanction did not render the trial for the minor offence of attempting or abet-
ting dacoity either irregular or illegal.

Charge : — Where a person has been charged with conspiracy with persons
known or unknown, the Calcutta High Court held that if the persons were known,
they should be named in the charge (y).

Where it was contended that the trial was vitiated by misjoinder of charges
inasmuch as a charge under s. 121 -A was coupled with a charge under s. 123 of the
Code, the Calcutta High Court overruled that contention of the defence holding
that the same person might be guilty of both^he offences (z).

Form of Charge : — I ( namenmd office of Magistrate, etc.) hereby charge you
(name of the accused) as follows : —

That you, on or about the day of , at , collected men

or arms or ammunitions, (if any other means were adopted mention them) with the
intention of waging war (or of being prepared to wage war) against His Majesty
the King Emperor, and thereby committed an offence punishable under $. 122
of the Indian Penal Code and within the cognizance of the Court of Session (or
High Court).

And I hereby direct that you be tried by the said Court on the said charge.

(w) S. 196, Cr. P. Code.

(x) (1900) 25 B. 90.

(y) Lalit Mohan Chakravartty , (1911) 38 C. 559.

(z) Pulin Behary Das , 16 C. W. N. 1105 : 15 C. L. J. 517, following Barindra
Kumar Ghose , fl909) 37 C. 407 : 14 C. W. N. 1114.

200

THE INDIAN PENAL CODE

[CHAP. VI

Punishments: — Separate conviction and punishment under s. 122 is im-
proper when what is established under s. 122 is really a part of and goes to make
up the offence under s. 121-A (z‘).

123. Whoever, by any act, or bv any illegal omission, conceals
Concealing with in- the existence ot a design to wage war against

tent to facilitate de- the Queen, intending by such concealment
sign to wage war. to facilitate, or knowing it to be likely that

such concealment will facilitate, the waging of such war, shall
be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

This section is analogous to s. 118, supra . See also commentary on s. 118.

Procedure: — Non-cognizable — Not bailable — Not compoundable — Triable by
Court of Session.

Charge I ( name and office of Magistrate etc.,) hereby charge you ( name
of the accused ) as follows : —

That you knowing that on or about the day of , at

certain persons had designed to wage war against the King Emperor,

concealed the existence of such design by {specify the act or illegal omission) intending
by such concealment to facilitate (or knowing it to be likely that such concealment
would facilitate) the waging of such war, and thereby committed an offence
punishable under s. 123 of the Indian Penal Code, and within the cognizance of
the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Complaint : — No Court shall take cognizance of any offence punishable under
this section except upon complaint by or under the authority of Government (z ).

124. Whoever, with the intention of inducing or com-
Assauitmg Gover- pelling the Governor-General of India,

nor General, Governor. Q r the Governor of any Presidency, or a

compei^or retam the Lieutenant-Governor, or a Member of
exercise of any lawful the Council of the Governor-General of
power ' _ _ India, or of the Council of any Presidency,

to exercise or refrain from exercising in any manner any of the
lawful powers of such Governor-General, Governor, Lieutenant-
Governor or Member of Council,

assaults or wrongfully restrains, or attempts wrongfully
to restrain, or overawes, by means of criminal force or the show
of criminal force, or attempts so to overawe, such Governor-
General, Governor, Lieutenant-Governor or Member of Council,

shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be
liable to fine.

This section has been enacted for punishing assault on high officers.

Procedure Not cognizable— Warrant— Not bailable— Not compound*
able— Triable by Court of Session.

(zi) BarindraKumar Ghose, (1900) 37 C. 407 (508) : 14 C. W. N. 1114.
(z 2 ) S. 190, Cr. P. Code.

SEC. 124- a] of offences against the state

201

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of the accused ) as follows : —

That you, on or about the day of , at ,

with the intention of inducing the Hon’ble A. B. member of the Council of the
Governor-General of India, to refrain from exercising a lawful power as such
member, assaulted such member, and thereby committed an offence punishable
under s. 124 of the Indian Penal Code, and within the cognizance of the Court of
Session (or High Court).

And I hereby direct that you be tried by the said Court on the said charge.

[Vide Criminal Procedure Code), Sch. V, Zxviii (2)J

124- A. Whoever by words, either spoken or written, or
Sedition by signs, or by visible representation, or

otherwise, brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection
towards Her Majesty or the Government established by law in
British India, shall be punished with transportation for life or any
shorter term, to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added,
or with fine.

Explanation 1. — The expression “disaffection” includes
disloyalty and all feelings of enmity.

Explanation 2. — Comments expressing disapprobation of
the measures of the Government with a view to obtain their
alteration by lawful means, without exciting or attempting to
excite hatred, contempt or disaffection, do not constitute an
offence under this section.

Explanation 3. — Comments expressing disapprobation of
the administrative or other action of the Government without
exciting or attempting to excite hatred, contempt or disaffection,
do not constitute an offence under this section.

The former section ran as follows : —

Whoever by words, either spoken or intended to be read, or by signs, or
by visible representation, or otherwise, excites, or attempts to excite,
feelings of disaffection to the Government established by law in British
India, shall be punished with transportation for life or for any term, to
which fine may be added or with imprisonment for a term which may
extend to three years or to which fine may be added, or with fine.

Explanation ■' — Such a disapprobation of the measures of the Government
as is compatible with a disposition to render obedience to the lawful
authority of the Government against unlawful attempts to subvert or
resist that authority, is not disaffection. Therefore, the making of
comments on the measures t>f the Government, with the intention of
exciting only this species of disapprobation, is not an offence within this
clause.

This old section reproduces s. II3-A of the Code as originally drafted and
it was adopted with some verbal alteration by Sir James Stephen in
1870 by Act XXVII of 1870, s. 5.

Legislative changes t-^The original s. 124-A, which was inserted by Act

202

THE INDIAN PENAL CODE [ CHAP. VI

XXVII of 1870, s. 5, was repealed by s. 4 of the Indian Penal Code Amendment
Act, 1898 (IV of 1898), and this section was substituted for it, see General Acts,
Vol. V.

Chapter IV and V of this Code apply to offences punishable under s. 124-A,
see the Indian Penal Code Amendment Act, 1870 (XXVII of 1870), s. 13, General
Act, Vol. II.

Analogous Law This section is analogous to 4 Seditious libel * in English
law and in addition to this section, see s. 108 of the Criminal Procedure Code, which
deals with *d issemination of seditious matter* see also Indian Press Emergency
Powers Act XXIII of 1931.

Lord FitzGerald has enunciated thus : — Sedition has been described as dis-
loyalty in action, and the law considers as sedition all these practices which have
for them object to excite discontent or disaffection, to create public disturbance ;
or to lead to civil war ; to bring into hatred or contempt the Sovereign or the
Government, the laws or constitution of the realm, and generally all endeavours
to promote public disorder (z 3 ). According to English law a man may lawfully
discuss and criticise the measures adopted by the Government and the Ministers
provided he does it fairly and without imputing corrupt motives (a). The law of
sedition is to be found within the four corners of this section. Under the Indian
law * public disturbance * is not contemplated. Whether the aim of the accused
is non-violent or not, it would be seditious if the person by words spoken or written
or by signs or visible representation brings or attempts to bring into hatred the
Government established by law in the country.

This section prescribes punishment for the offence of sedition. The essence
of the offence is the intention to bring or attempt to bring into hatred or contempt
or excite or attempt to excite disaffection towards Her Majesty or the Government
established by law in British India.

Scope : — Intention is the subject of criminal proceedings for direct sedition
against persons under s. 124-A or indirect sedition under s. 153-A. For an
offence under this section seditious intent is necessary(b). S. 124-A coupled with
the three explanations thereto contains in clear and concise language the law in
India relating to sedition which is practically identical with the law in England (c).

The definition of sedition given in s. 124-A contemplates hatred or contempt
or disaffection towards His Majesty or the Government established by law in
British India, and this apart from any intention of the offender (d). It is not
necessary for the purposes of s. 124-A, that the article should advocate any form of
rebellion. Abuse of Government officials has been held to be sufficient (e). In
an unreported decision where the processionists carried flags with the slogan : —

‘ Down with Imperialism 4 Long live Revolution,’ Costello, J.» held that the
accused were rightly convicted of sediti&i (f).

In dealing with the section, Davar, J.,$aid to the Jury in summing up : 44 S. 124-A
is intended to be a safeguard and a check against any one who either by speech or
by writings or by visible means brings or attempts to bring certain things into
hatred or contempt or excites or attempts to excite disaffection against the Govern-
ment established by law in British India.”

(Z 3 ) Sullivan v. Piggot , (1838) 11 Cox. 5t.

(a) Per Ellenborough, in Lambert , 2 Camp. 398.

(b) In the matter of Amrita Bazar Patrika Press, Ltd. t ( 1919) 23 C. W. N. 1057

106-i) : 30 C. L.J. 289. *

(c) Per Fletcher J., in Monmohan Ghose , (1910) (‘ Karmoytogin ’ newspaper)
0.253 (260 261).

(d) ApurbaKrishna Bose t (1901) 35 C. 141, (153). *

(e) Satya Ranjan Bakshi, (1929) 56 C. 1090 : A. I. R. (1930) C. 220.

(f) Subhash Chandra Bose Cr. App. (unreported) of 1930.

OF OFFENCES AGAINST STATE

203

SEC. 1244

u You have to consider the effect the writings would produce upon the
accused ; and then judge the effect these articles read by a large and promiscuous
body of readers would produce on their minds ” (g).

An agreement between the defendants and others to diminish the confidence
of Her Majesty’s Subjects in Ireland in other general administration of the law
therein ; or an agreement to bring into hatred and disrepute the tribunals by law
established in Ireland for the administration of justice are each and every one of
them agreements to effect purposes in manifest violation of the law (h). Littledale,
JL, in summing up said to the jury : “ I have already said that the people have a
right to discuss any grievances that they have to complain of, but they must not do
it in a way to excite tumult. It is imputed that the defendant published this paper
with that intent and if he did so it is in my opinion a seditious libel ” fi).

Their Lordships of the Judicial Committee in construing the question under
s. 4, of the Indian Press Act (I of 1910) held that “ the provisions of that section have
analogy in this section and s. I53-A of the Code. The language is not precisely
the same but there is the same delicate balancing of two important public considera-
tions, the undesirability of anything tending to excite sedition or excite strife
between classes and the undesirability of preventing any bona fide argument for
reform.”

” A similar observation might be made upon this section. The utmost that can
be said is that the addition of the explanation with its apparent repetition of the posi-
tive enactment in the guise of a qualification of the explanation shows an almost
meticulous care by the Legislature to balance the two considerations, prominence
being given to the first consideration in the first part of the section, and to the
second in the explanation. In applying these balancing principles it is inevitable
that different minds may come to different results, one mind attaching more weight
to the consideration of freedom of argument, and the other to preservation of law
and order or of harmony (j).”

Preaching Home Rule is not sedition (k), but a speech in which the speeker
approves of violence as a means of achieving self-government amounts to an
offence under this section (1). To advocate expulsion of Englishmen from India
is tantamount to asking subversion of Government established by law (m). Where
a person says in his speech that he himself is the follower of the prophet of non-
violence but at the sametime says that he is nobody to find fault with people who
in their anger of oppression as is witnessed under the present Government use
more violent methods and shoot at members of the Assembly, and where through-
out his speech he insinuates various disabilities of village life due to the present
Government, held, that there is an intention on his part to bring the Government
into hatred (n). A speaker representing in his speech that the Indian Penal Code
enforced by the Government attacks every religion is guilty of sedition (o).

(g)

W

(i)

(646).

Tilak # (1608) 10 Bom. L. R. 848 (806, 867).

Per Tindal, C. J., (1844) O'Connell in 11 Cl. and F. 155, (236).

Per Littledale, J., in Collins, 9 C. and P. 456 (461) ; Lovett, 9 C. and F. 462

(j) Annie Beasant V. The Advocate General of the Government of Madras, 46 I. A.
176 (P. C.) at 194 : 43 M. 146 : 37 M. L. J. 139 : (1919) M. W. N. 555 : 26 M. L. T.
408 : 23 C. W. N. 986 (996, 997) : 21 Bom. L. R. 867 : 17 A. L. J. 925 : 20 Cr. L. J.
593 : 62 I. C. 209.

(k) Balgangadhar Tilak, 19 Bom. L. R. 211 : 18 Cr. L. J. 567 f see

also Annie Beasant, (1915) 39 M. 1085.

(l) Anandakishore, (1929) 31 Cr. L. J. 201 : 121 I. C. 425: A. I. R. (1930) L.

306.

(m) Satya Pal , (1929) 31 P. L. R. 11 : A. I. R. (1930) L. 309.

(n) Dandekar , (1929) 122 I. C. 596 : A. I. R. (1930) 324.

(o) Malik Amir Khan, .A.JU&, (1930) L. 885.

204

THE INDIAN PENAL CODE

[CHAP. VI

Whoever by language either written or spoken incites or encourages others to
use physical force or violence in some public matter connected with the State is
guilty of publishing a seditious libel. The test of seditious libel, is this : Was
the language used calculated or was it not to promote public disorder or physical
force or violence in a matter of State ? If the accused published the libel, there
is no distinction in law between what he wrote in it and what any other person
wrote in it (p).

Republication of seditious articles from * Yugantar * another newspaper one
of which only was filed as an exhibit by the prosecution and used in the case
against the editor of that paper on his trial for * sedition,' was held to be not a
report of the proceeding of a Court of Justice, and not justifiable (q).

When there is no heading or foot note that the editor does not accept res-
ponsibility for the opinion expressed in the letters appearing in correspondence
columns, the printer is responsible for sedition if the article is in the form of an
unsigned letter appearing in the correspondence columns (r).

No sedition without intention : — Intention is an essential ingredient of the
offence under this section . — As Stratchey, J., in his charge to the Jury in the Tilak
case told them : “ You will thus see that the whole question is one of the intention
of the accused in publishing these articles. Did they intend to excite in the minds
of their readers feelings of disaffection or enmity to the Government or did they
intend to excite disapprobation of certain Government measures, but only to excite
interest in a poem about Shivaji and a historical discussion about his alleged killing
of a Mahomedan general ?

i4 You must gather the intention as best you can, from the language of the
articles ; and you may also take into consideration, under certain conditions, the
other articles that have been put in evidence, such as the articles about the plague
and the Diamond Jubilees and so forth. But the first and most important index
of the intention of the writer or publisher of a newspaper article is the language of
the article itself. What is the intention which the articles themselves convey to
your minds ? In considering this you must first ask yourselves what would be the
natural and probable effect bf reading such articles in the minds of the readers of
the Kesari to whom they were addressed ? . . . . But in considering what sort of effect
these articles would be likely to produce, you must have regard to the particular class

of persons among whom they were circulated But in the next place, in judging

of the intention of the accused, you must be guided not only by your estimate of the
effect of the articles upon the minds of their readers, but also by your common
sense, your knowledge of the world, your understanding of the meaning of words,
and your experience of the way in which a man writes when be is animated by a
particular feeling. Again in judging of the intention of the writer or publisher,

you must look at the articles as a whole, giving due weight to every part A

journalist is not expected to write with the accuracy and precision of a lawyer or a
man of science ; he may do himself injustice by hasty expression out of keeping
with the general character and tendency of the articles. It is this general character
and tendency that you must judge the intention by looking, at every passage so far
as it throws light upon this " (s).

Following this case (s) and other cases it has been held in Satyendra Nath
Mojumdars case (t) that in order to ascertain intention it is only right to bear in mind

~ (p) Aldred, (1909) 22 Cox C. C. I. ’

(q) Apurba Krishna Bose t (1007) (‘Bandemalaram* case) 35 C. J41, ; Krishna
Copal Sarnia, (1030) 28 A. L. J. 1215.

(r) Ibid p. 153.

(s) Balgangadhar Tilak , (1897) 22 B. 112.

(t) (1030) 34 C. W. N. 1095 : 53 C. L. J. 295*

OF OFFENCES AGAINST THE STATE

205

SEC. 124-A ]

that the articles should be read not in any spirit of narrow criticism, but in a fair,
free and liberal spirit and if any doubt should arise in regard to the intention,
the benefit of that should be given to the accused. There the accused, an editor
of a vernacular paper 4 Ananda Bazar Patrika ' wrote a historical review of events
in the Congress number. The High Court held that there could be possibly no
objection to a mere review of events but it was not permissible under the pretext
of a review to stir up feelings of hatred, contempt and disaffection towards Govern-
ment. The Allahabad High Court by a Full Bench held the same view and
pointed out that, in dealing with a historical review if the article does not narrate
the good done by the Britishers, the article is seditious (u).

In a later case of Tilak, it was held : — The essence of the crime of sedition con-
sists in the intention with which the language is used. But tins intention must be
judged primarily by the language itself. Intention for this purpose is really no more
than meaning. When a man is charged in respect of anything he has written or
said, the meaning of what he said or wrote must be taken to be his meaning by the
people to whom it is addressed (v).

In cases of sedition the question of intention is one of fact (w).

A letter or an article in a newspaper containing an attack on a rival political
organisation and not on the Government established by law in British India is not
sedition within the meaning of this section (x). In construing a newspaper article
its meaning must be taken from the article as a whole and not from isolated
passages (y). A single expression that the people of Bengal are trodden under the
feet of outsiders used incidentally in a newspaper article, otherwise innocuous, does
not constitute the whole seditious (z).

Similarly in determining the effect of a speech, the Court has to look at the
speech as a whole, and not pay undue regard to any particular sentence or phrase (a).

Previous speech though delivered about six months before is admissible as
evidence of intention of speeches under s. 14, Evidence Act, where certain
speeches from part of a series of speeches or lectures on one topic are
delivered (a 1 ).

While a very large amount of latitude is and must be allowed to writers in the
Public Press, the interests of the State must at the same time be not lost sight of
and writers cannot under the guise of criticism of public affairs be allowed to indulge
in attributing base, improper or dishonest motives to those who carry on the work
of the Government of the country (b).

In considering the intent with which the publication were made the jury will
regard all the surrounding circumstances,— the state of the country, the state of
public opinion (c). The whole question is one of intention. As Stratchey, J.,
observed : 44 Did they intend to excite in the minds of their readers feelings of
disaffection or enmity to the Government" (d), but the requisite intention cannot be
attributed to a person accused under s. 124-A, if he was not aware of the contents
of the seditious publication (e).

(u) Saigal (1930) 52A. 775.

(v) Balgangadhar Tilak, (1908) 10 Bom. L. R. 848.

(w) Ganesh Balvant Modak, (1909) 34 B. 378 : 12 Bom. L. R. 21.

(x) Monmohan Ghose, (1910) 38 C. 253.

(y) Ibid .

(z) Joy chandra Sircar, (1910) 38 C. 214.

(a) Maniben Liladhar Kara, (1932) 34 Bom. L. R. 1642.

(ai) OmPrakash. A. I. R. (1931) L. 867.

(b) Satya Banian Bahshi , (1927) 54 C. L. J. 638.

(c) Sullivan , (1868) 11 Cox. Cr. Cases p. 54 (59); Aldred (1909) 22 Cox. 1.

(d) Tilak , (1897) 22 B. 112 (139).

(e) Chuni Lai, (1931) 12 L. 483.

206

[CHAP. VI

* THE INDIAN PENAL CODE

Stratchey, J. 9 told the Jury: “ Then you have to look at the standing and
position of the prisoner Tilak. He is a man of influence and importance among
the people; he would be in a position to know what effect such articles would
probably produce in their minds " (f).

In Phanindra Nath Mitter (g) 9 it was held that seditious articles published
in the same newspaper, even though not forming the subject-matter of the charges
on which the accused was being tried are admissible. Graham, J., in Satyendra
Nath Mojumder s case Xh) following this decision held that articles published in the
same paper and forming the subject-matter of some of the charges are admissible
for the purpose of proving intention.

Liability of printer and publisher of a newspaper : — Strictly speaking
the publication of a seditious article in a newspaper is not ordinarily the work
of either the writer alone, or of the proprietor alone, or of the editor alone or even
of all three together. They employ the compositor to print the article, and the
post office or other agency to distribute it, but the maxim qui facit per alum facit
per se applies, and the publication is held to be the act of the person or persons who
authorised it, and the grant of the authority may be proved by direct evidence or as
a reasonable inference from the conduct of the parties and all the surrounding
circumstances. In each case it is a pure question of fact to be proved like any other
fact by direct evidence or as a reasonable inference from facts proved or admitted,
and considered in relation to all the circumstances of the case (i). Mere printing
is sufficient, publication is not necessary (j).

It is true that under the law, the printer and the publisher of the seditious article
can be punished thereby on proof that the article is calculated to excite feelings of
hatred, dislike, ill-will, enmity or hostility, towards the Government established
by law in British India, but that renders all the more incumbent on the prosecution
to show either that the article does as a fact bring the Government into hatred,
or that the intention of the writer was to excite disaffection.

In order to judge the intention of the writer the real and not the literal sense
of the writing must be considered.

In construing a newspaper article its meaning must be taken from the article
as a whole and not from isolated pages. Words and expressions such as arbitrary
executive must not be looked at as if the writer were a constitutional lawyer (k).
In Monmohan Ghose's case (1) the article in the ‘ Karmayogin ' newspaper attacked
the Moderate Party and not the Government while criticising the Reform Schem e
and the printer and publisher were acquitted.

Keeper of the Press — who is away and not aware of the publication cannot
be held liable under this section (k), but the position of printers is worse than that
of authors (m). The declared printer and publisher of a newspaper containing
seditious articles is responsible for them unless he makes out, on sufficient evidence,
that he had in fact nothing to do with them (n).

(f) Balgangadhar Tilak , (1897) 22 B. 112, followed in Ramchandra , A. I. R. (1930)
L. 371 : 120 I. C. 615.

(g) (1908) 35 C. 945.

(h) (1936) 34 C. W. N. 1095 (1100).

(i) Gadicherla Harisarvothama Raod , (1909) 32 M. 338 (343, 344), following
Holbrook, (1878) 4 Q. B. D. 42 ; Jogendra Chandra Bose , (1892) 19 C. 35 (41).

(j) Chellam Pillai, A. I. R. (1928) M. 276.

(k) Monmohan Ghose t (1910) 38 C, 253 : 15 C. W. N. 141 ; Tilak , (1897) : 25
I. A. p. 1 ; Gopal Lall Sanyel , (1927) 46 C. L. J. 156.

M Arjan Singh, A. 1. R. (1931) L. 182.

(m) Braja Bihari Barman, (1930) 53 C. L. I. 182; A purba Krishna Bose, (1907)
35 C. 141.

(n) Surendra Prasad Lahiry, (1910) 38 C. 227.

207

SEC. 124-A ] OF OFFENCES AGAINST THE STATE

Traill — is no defence to a charge of sedition although it is a sufficient answer
to one under defamation (o).

Whoever : — Whoever the composer or the writer might be, by whomsoever
the writing or the printing was composed, the person who used them for that purpose
is guilty of an offence under this section if the offence is attempting to excite dis-
affection by words intended to be read (p).

* by words either spoken or written 9 : — Written . — It is not necessary in order
to establish the fact of publication of seditious matter transmitted through the post
office, on a charge under this section, to prove the actual posting, nor that it was
printed and published under the direction of the accused. If the seditious writing
is shown to be in the handwriting of the accused, and it is further proved that the
contents were in fact printed and published, there is sufficient evidence of pub-
lication by him (q).

A poem, an allegory, a drama, a philosophical or historical discussion, may be
lised for the purpose of exciting disaffection just as much as direct attacks upon the
Government (r). The liability arises from certain action, viz., the bringing or
attempting to bring into hatred or contempt, the Government of the country.
This is a result which may be affected in various ways, i. e., either by speech,
writing, or by signs or visible repiesentations (s).

* or by visible representation 9 :— A seditious libel does not necessarily con-
sist of written matter, and it may be evidenced by a wood cut or engraving of any
kind (t). Similarly in Subash Bose's case sedition consisted in the exhibition of
flags and posters containing slogans : — * Long live Revolution,’ ‘ Down with
Imperialism * (u).

* brings or attempts to bring into hatred or excites 9 : — The gist of the
offence is the bringing into hatred or contempt or the exciting or attempting to
excite disaffection towards Her Majesty or Government established by law in
British India (v).

* attempts 9 When an accused is charged with an attempt to excite feelings

of disaffection, of hatred, against Government, and other articles are put in for the
purpose of showing the intention, one is never desirious of riveting ones attention
to the articles that do not form the subject-matter of the charge, but there may be
something in them which may throw light on the question as to whether they are
calculated to raise feelings of disaffection (w). * T .,

The sending through the post of a packet of a manuscript copy of a seditious
publication with a covering letter registering the addresses to circulate it among
others, when the same was intercepted by another person and never reached the
addressee, constitutes an attempt within the purview of this section. Section 124-A
includes an attempt in the definition of the offence of section. Attempt does not
include success (x). What is rendered punishable by this section is the intentional
attempt, successful or otherwise to rouse as against Government the feelings enu-
merated in the section, and a mere tendency in an article to punish such feeling
is not sufficient to justify a conviction (y).

(o) Franklin , (1731) 17 St. Tr. 625 (658, 659) ; Ram Chandra , A. I. R. (1930)
L. 371 : 120 I. C. 615.

(p) Bhasker , 8 Bom., L. R. 421 (451) ; Balgangadhar Tilak , (1897) 22 B. 112 (129).

(q) Surendra Narayan Audhicary , (1911) 39 C. 622.

(r) Balgangadhar Tilak , (1897) 22 B. 122 (142).

(s) Per Batty, J., in Bhaskar Balwant Bhopatkar , (1906) 8 Bom. L. R. 421 (435).

(t) Per FitzGerald, J., in Sullivan , V. Piggot, (1838) II Cox. 44 (51).

(u) Cr. appeal No of 1930.

(v) My lap ore Krishnaswami, (1909) 32 M. 384 (386).

(w) Balgangadhar Tilak , (1908) 10 Bom. L. R. 849 (897).

(x) Surendra Narayan A dhicarry, (1911) 39 C. 522.

(y) Sofya Ranjan Bakshi , (1927) 45 C. L. J. 638.

208

THE INDIAN PENAL CODE

[ CHAP. VI

An attempt to excite feelings of disaffection to the Government is equivalent
to an attempt to produce hatred of Government as established by law, to excite
political discontent and alienate people from their allegiance (z).

* Government established by law in British India * r — It is no defence
to say that the fact of Government was not attacked (a). In a case under the Press
Act I of 1910, it has been held that there is a distinction between the Government
and the individual officers employed under the Government; words bringing the
former into hatred or contempt constitute sedition, but similar words directed
against the latter can only infringe the law of libel (b). Stratchey, J., construed the
meaning of the above phrase as : — 44 It means, in my opinion, British rule and its
representatives as such the existing political system as distinguished from any
particular set of administrators 44 (c). Mere profession of loyalty to Her Majesty
and the British Parliament is no answer whatsoever. Where you criticise the Gvil
Service tnbloc, the question whether you excite disaffection against the Government
or not seems to be a question of fact (d).

The expression 4 Government established by law in British India * includes
the executive power in action and does not mean merely the constitutional frame-
work. It includes the Local Government as well as the Central Government (e).
Rankin, C. J., in Publisher of Amrita Bazar Pairika case (f) interpreted similar ex-
pression in the Indian Press (Emergency Powers Act) following Tilak' s case (g) where
Stratchey, J., said : “ The existing political system as distinguished from any parti-
cular sect of administrators. C. C. Ghose, J., in the same case (f) held that the
article complained of must be read as a whole and in a fair, free and liberal spirit
and not viewed with an eye of narrow and fastidious criticism. In Anania Bazar
Patrika case (h), C. C. Ghose, J., held that in substance there was no distinction
between 4 Government established by law in British India 4 and 4 the executive
Government.*

It is quite possible, by the abuse of Government officials as officials, to make
an endeavour to bring into hatred or contempt the * Government established by law
in British India.* This is a concrete phrase which is just as much applicable to the
Government after the legislation of 1919 as when it was enacted years ago (i).

Explanation 1 t — 44 The object of the explanation is a negative one to show
that certain acts which might otherwise be regarded as exciting or attempting to
excite disaffection, are not to be so regarded 44 (j). What are feelings of disaffection ?.
Stratchey, J., Agreed with the decision of Sir Comer Petharam, C. J., in the Banga -
bashi case (k), that disaffection means a feeling contrary to affection. The Bombay
High Court further held : “ It means hatred, enmity, dislike, hostility, contempt, and
every form of ill-will to the Government. * Disloyalty 4 is perhaps the best
general term comprehending every possible form of bad feeling to the Govern-
ment 44 (1). The Allahabad High Court held : 44 In our opinion any one who, by

(z) Ram Chander Narayan , (1897) 22 B. 152 (156) (F, B.), followed in Arjan
Singn, A. 1. R. (1931) L. 182.

(a) In the matter of Sajani Kanto Das , [in re, India in Bondage ,) (1929) 57 C.

1217 : 34 C. W. N. 277 : A. 1. R. (1930) C. 244 (F. B.), followed in Jagannath Tropathi ,
A. I. R. (1923) Cal. 141. * §

(b) . Raj Pal, (19 22) 3 L. 405.

(c) Per Stratchey, J., in Balgangadhar Tilak t (1898) 22 B. 112 (135).

(d) Per Bachelor, J., in Balgangadhar Tilak , (1916) 19 Bom. L. It. 264, 211 :

Cr. L. J. 667.

(e) Khitish Chandra Rat Chowdhury , (1932) 69 C. 1197 (1199) 59 C.

(f) (1932) 37 C. W. N. 166 : (case under Press Act).

(g) (1897) 22 B. 112.

(h) (1932) 37 C. W. N. 104 : (case under Press Act).

(I) Satya Ranjan B%kshi, (1929) 66 C. 1095 (1099).

(j) Balgangadhar Tilak (1897) 22 B. 112 (133).

(k) Jogendra Chandra Bose (1891) 19 C. 36 at p. 44,

(l) Per Stratchey J. in Tilak (1897) 22 B. 112 (134).

SEC. 124 - A]

OF OFFENCES AGAINST THE STATE

209

any of the means referred to in s. 124 -A excites or attempts to excite feelings of
hatred, dislike, ill-will, enmity or hostility towards the Government established
by law in British India, excites or attempts to excite as the case may be, feelings
of disaffection as that term is used in s. 124- A, no matter how guardedly he may
attempt to conceal his real object. It is obvious that feelings of hatred, dislike,
ill-will, enmity or hostility, towards the Government must be inconsistent with and
incompatible with a disposition to render obedience to the lawful authority of the
Government/ and to support that lawful authority against unlawful attempts to
subvert or resist it ” (m).

Explanations 2 and 3 The thing protected by the explanation 2 is “ the
making of comments on the measures of the Government “ with a certain intention.
The explanation has a strictly defined and limited scope. It would apply to any
criticisms of legislative enatments e.g. 9 the Epidemic Diseases Act, or any parti-
cular tax, or of administrative measures, such as steps taken by the Government
for the suppression of plague or famine, but if the attack is upon Government

then the explanation does not apply but the first clause of the section applies

The object of the explanation is to protect honest journalism and bona fide critic
cism of public measures and institutions with a view to their improvement and to
the remedying of grievances and abuses, to distinguish this from attempt to make
the people hate their rulers (n).

These explanations are intended to protect criticism of Government measures,
and of administrative and executive action of Government and they give perfect
freedom to journalists, to publicists, to orators and public speakers — perfect free-
dom to discuss measures of the Government, but no publicist, journalist or speaker
has any right to attribute dishonest or immoral motives to Government (o), and he
cannot in his criticism hold up the Government itself into hatred and contempt (p).

Evidence : — A copy of a letter purporting to have been written by the accused
to the editor of a newspaper sending for publication has been held to be admissi-
ble under s. 9 & 14, Evidence Act (q). A document subsequently written but
within a reasonable time of the particular occurrence is admissible in evidence to
prove intention (r).

In a charge under this section the prosecution must prove to the hiit that the
intention of the writer or the speaker, whoever he may be, is to bring or attempt
to bring into hatred or contempt or excite or attempt to excite disaffection towards
the Government established by law in British India (s). Such intention is to be
gathered from a fair and generous reading of the article in respect of which the charge
has been laid and not from isolated or stray passages here and there (t). If a parti-
cular article is charged as being seditious on the ground that it says more than
appears on the face of it, it is the duty of the prosecution to show that it has, in fact,
the guilty meaning attributed to it (u).

(m) Amba Prasad (1897) 20 A 55 (08) F. B.

(n) Balgangadhar Tilak (1897) 22 B. 112, (ISO, 137, 138) approved, of in Mon-
mohan Ghose (1910) 38 C. 253.

(o) Balgangadhar Tilak , (1968) 10 Bom. L. R. 848.

(p) Monmohan Ghose, (1010) 38 C. 253.

(q) Philip Spratt, (No. 2) 30 Bom. L. R. 31.

(r) Philip Spratt (No. 3) 30 Bom. L. R. 315; Satyandra Nath Mojutndar t (1927)
34 C. W. N. 1095.

(s) Satya Banian Bakshi , (1927) 46 C. L. J. 638 (643) : A. I. R. (1927) C. 698.

(t) Gopal Lai Sanyal , (1927) 46 C. L. J. 156 : A. I. R. (1927) C. 751 ; Jagat
Narain, 9 P. L. T. 784 : A. I. R. (1929) X. P. 10.

(u) Jaychandra Sarkar, (1910) 35 C. 214 (225).

20

210

THE INDIAN PENAL CODE

[ CHAP. VI

Place r-Mn accused person may be legally tried and convicted in

one trial undfcr a. 1 24-A or 1 53- A of charges framed on three disconnected arti-
cles (v).

Where an accused is charged under this section the Magistrate has discretion
under s. 347, Cr. P. Code, to try the case himself or to commit it to trial to the
Court of Session (v 1 ).

Procedure Non-cognizable— Warrant —Not bailable— Not compoundable

—Triable by Court of Session.

Sanction Sanction of Government is necessary for prosecution under this
section (w).

Jurisdiction : — Sending a newspaper (The Ktsari ) which is published at
Poona, in Bombay Presidency, from the office where it is published to other places,
constitutes in law the publication in Bombay or to other places where the paper
is sent and the publication gives jurisdiction to the Court to try the offence (x).

Joint Trial : — The printer and publisher of a seditious pamphlet can be jointly
tried (x)\

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at , with theantention

of inducing the Hon'ble A . B., Member of the Council of the Governor-General
of India, to refrain from exercising lawful power as such member, assaulted such
member, and thereby committed an offence punishable under 124 of the Indian
Penal Code, and within the cognizance of the Court of Session or (the High Court).

And I hereby direct that you be tried by the said Court on the said charge
[vide Criminal Procedure Code, Sch. V, XXVIII (2)].

Forfeiture : — The High Court will set aside ' forfeiture * if it cannot come
to a finding under s. 99, Criminal Procedure Code, that it is satisfied that the book
in question contains seditious or other matter of such a nature as is referred to in
«. 99(1), Cr. P. Code (x ). Government is justified in proscribing the books even
though the originals were not proscribed (x^).

Trial in High Court — should be by special jury (x 4 ).

Appeal to Privy Council — has been condemned in Kalinath Roy s case (x s ).

125. Whoever wages war against the Government of any
Asiatic Power in alliance or at peace with the
anyls"!tic Wa power in fn Q ueen p r attempts to wage such war, or
alliance with the Queen, abets the waging or such war, shall be
punished with transportation for life, to which
line may be added, or with imprisonment of either description
for a term which may extend to seven years, to which line may be
added, or without line.

(v) Balgangadha* Tilak, (1908; 33 B. 221. (239).

(vl) Hart M aresh war Jeshi, (1932) 56 B. 61.

(w) S. 196 Criminal Procedure Code.

(x) Balgangadhar Tilak, (1908 ) 33 B. 221 (239).

(xl) Shanlaram Mirjakar, (1927) 30 Bom. L. R. 320.

(x2) In the mailer of India in Bondage, ISajani Kanta Das) 67 C. 1217 : 34 C. W. N.

277 .

(x3) 23 A. L„J. 1 (F. B.).

(x4) Philip Spratl, No. I 30 Bom. L. R. 313,

(x6) 48 I. A. 90.

SEC. 126] OF OFFENCES AGAINST THE STATE 211

Analogous law : — The corresponding provision in the English Law (Statutes

33 and 34, Viet., c. 99, s. II and 12) are as follows * V / ‘o

■*« .. '

S. 11. If any person within the limits of Her Majesty's dominions, and without
the license of Her Majesty, prepares or fits out any
Penalty of fitting out Naval or Military expedition to proceed against the
naval or military ex- dominions of any friendly State, the following consequences
pedition without. sha ll ensue

(1) Every person engaged in such preparation or fitting out or assisting therein,
or employed in any capacity in such expedition, shall be guilty of an
offence against this Act, and shall be punishable by fine and imprisonment
or either, or such punishment, at the discretion of the Court before which
the offender is convicted; and imprisonment if awarded, may be either
with or without hard labour ;

(2) All ships and their equipments and all arms and ammunitions for war, used
in or forming part of such expedition, shall be forfeited to Her Majesty.

S. 12. Any person who aids, abets, counsels, or procures the commission of any
offence against this act shall be liable to be fined as a prin-
cipal offender.

Procedure : — Non-cognizable — Warrant— -Not bailable Not compoundable

— Triable by Court of Session.

Sanction No Court shall take cognizance of any offence under this section
unless upon complaint by order of or under authority from the Government (y).

Charge — same as ins. 121 substituting for the * Emperor # the Government
of Asiatic Power in alliance (or at peace) with the King.

Sentence : — Waging war against any Asiatic Power in alliance with the King —
Sentence of ten years, transportation is illegal (z).

126. Whoever commits depredation, or makes prepara-
.... „ , tions to commit depredation, on the territories

Committing depre* * "if* * l I

dation on territories or any rower in alliance or at peace with the
t°hc P Queen at peace vrith Q ueen * shall be punished with imprison-
lc '* ment of either description for a term which
may extend to seven years, and shall also be liable to fine and to
forfeiture of any property used or intended to be used in com-
mitting such depredation, or acquired by such depredation.

This section deals with depredation on the territories of any power in alliance
or at peace with the King Emperor.

Procedure J — Non-cognizable — Warrant — Not bailable— Not compoundable —
Triable by Court of Session.

Sanction:— No complaint can be instituted without sanction from the
Government (a).

Charge : — I (name and office of Magistrate, etc.) hereby charge you ( name
of the accused) as follows : —

That you on or about the day of , at-^- , committed

(or made preparations to commit depredation on the territories of a

power in alliance (or at peace) with* the King Emperor, and thereby committed an
offence punishable under s. 126 of the Indian Penal Code, and within the cogni-
zance of the Court of Sessions (or the High Court).

And 1 hereby direct that you be tried by the said Court on the said charge.

(y) S. 196, Criminal Procedure Code.* *

(z) Ktifa Singh, (1866) 3 W. R. (Cr.) 16.
(a) S. 196, Criminal Procedure Code,

212

THE INDIAN PENAL CODE

[CHAP. VI

127. Whoever receives any property knowing the same

Receiving property to ha ? e been taken in the commission of

taken by war or depre- any of the offences mentioned m sections

sections i2s ' "ncMsc*" * 25 and ,26 > fWl he punished with imprison-

ment of either description for a term
which may extend to seven years, and shall also be liable to fine
and to forfeiture of the property so received.

Procedure r— Non-cognizable— Warrant— Not bailable— Not compoundable —
and is exclusively triable by Court of Session.

No sanction s — This is the only section in this Chapter for the prosecution
of which no sanction from the Government is required (b).

Charge s— I (name and office of Magistrate etc.,) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at , received a

certain property ( specify the property ) knowing the same to have been taken in

waging war against an Asiatic Power in alliance (or at peace) with the King

Emperor [or knowing the same to have been taken in the commission of depreda-
tion on the territories of a Power in alliance (or at peace) with the King Emperor]
and thereby committed an offence punishable under s. 127 of the Indian Penal
Code, and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

128. Whoever, being a public servant and having the

Public servant voiun- c “ stod y of any State prisoner or prisoner
tariiy allowing prison- or war, voluntarily allows such prisoner

escape ,^ tate ° r war to to . esca P e # from any place in which such
prisoner is confined, shall be punished
wjth transportation for life, or imprisonment of either descrip-
tion for a term which may extend to ten years, and shall also be
liable to fine.

This section is analogous to $. 225-A. This section and the next two sections
deal with the rescue and escape of State prisoners.

Public servant :—s. 21.

State prisoner or prisoner of war : — “ State Prisoners’* might no doubt
be read in a sense which would include only prisoners of war or foreigners held
in confinement for political reasons (c).

^{JH^ure : Non-cognizable — Warrant — Not Bailable — Not compound-

able — Tnal by Court of Session.

Sanction r— No prosecution can be started under this section without previous
sanction, from the Government (d).

Charge r— I (name and office of Magistrate etc.,) hereby charge you (name
of accused) as follows

That^you, being a public servant (mention the office) and as such having the
custody of y a State prisoner (or prisoner of war), on or about the

~~ (b) Ibid, * “

(c) Per Phear, J„ in Ameer Khan , 6*tf. L. R. 469, see Beng. Reg. VII of 191$
Bom. Reg. XXV of 1817.

(d) S. 190, Criminal Procedure Code.

SECS. 120-30] OF OFFENCES AGAINST THE STATE 213

day 0 f , at — , voluntarily allowed such prisoner to escape from

• — -, the place in which such prisoner was confined, and thereby committed

on offence punishable under s. 128 of the Indian Penal Code and within the
cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

129. Whoever, being a public servant and having the

gently** suffering 1 " such* c y stod y of W State prisoner or prisoner
prisoner to escape. or war, negligently suffers such prisoner
to escape from any place pf confinement in which such prisoner
is confined, shall be punished with simple imprisonment for a
term which may extend to three years, and shall also be liable to
fine.

Public Servant s. 21. State Prisoner, s. 128.

This section is analogous to the provisions of s. 223 which punishes escape
from confinement or custody of an ordinary prisoner negligently suffered by public
servants. Here the offence is the same but the prisoner is a State prisoner or
prisoner of war. This section deals with the same offence as the last but provides
for lesser punishment as under the last section the escape is voluntarily allowed,
here the escape is negligently suffered.

Procedure : — Non-cognizable, — Warrant, — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first
class.

Sanction A prosecution under this section requires the sanction of
Government (e).

Charge : — I ( name and office of Magistrate etc.,) hereby charge you (name
of accused) as follows : —

That you being a public servant (mention the office) and as such having the

custody of , a State prisoner (or prisoner of war), on or about the —

day of , at , voluntarily allowed (or negligently suffered)

such prisoner to escape from the place in which such prisoner was

confined, and thereby committed an offence punishable under the Indian Pertal
Code and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

130. Whoever knowingly aids or assists any State prisoner

or prisoner of war in escaping from lawful
Aiding escape of. res- cus t 0 dy, or rescues or attempts to rescue
such prisoner. any such prisoner, or harbours or conceals

any such prisoner who has escaped from
lawful custody, or offers or attempts to offer any resistance to
the recapture of such prisoner shall be punished with trans-
portation for life, or with imprisonment of either description
for a term which may extend to ten years, and shall also be
liable to fine.

Explanation . — A State prisoner or prisoner of war, who is
permitted to be at large * on his parole within certain limits m

(e) S. 190, Cr. P. Code.

214

THE INDIAN PENAL CODE

[ CHAP. VII

British India, is said to escape from lawful custody if he goes
beyond the limits within which he is allowed to be at large.

Procedure : — Not Cognizable — Warrant— Not Bailable — Not Compound-
able— Triable by Court of Session.

Complaint No Court shall take cognizance of any offence punishable under
this section except upon complaint by or under the authority of Government (e 1 ).

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you on or about the — day of , at , knowingly

aided (or assisted) or rescued, (or attempted to rescue) a State prisoner (or prisoner
of war) in escaping from unlawful custody [or knowingly harboured or concealed)

—a State prisoner (or prisoner of war)] who had escaped from lawful custody

[or knowingly offered or attempted or offer resistance to the re-capture of, a

State prisoner (or prisoner of war) who had escaped from lawful custody], and
thereby committed an offence punishable under s. 1 30 of the Indian Penal Code,
and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

CHAPTER VII.

Of Offences relating to the Army, Navy and Air Force.

The Authors of the Code observe as follows : —

“A few words will explain the necessity of having some provisions of the
nature of those which are contained in this Chapter. It is obvious that a person
who, not being himself subject to military law, exhorts or assists those who are
subject to military law to commit gross breaches of discipline, is a proper subject
of punishment. But the general law respecting the abetting of offences will not
reach such a person ; nor, framed as it is, would it be desirable that it should reach
him. It would not reach him, because the military delinquency which he has
abetted is not punishable by this Code, and therefore is not, in our legal nomencla-
ture, an offence. Nor is it desirable that the punishment of a person not military,
who has abetted a breach of military discipline, should be fixed according to the
principles on which we have proceeded in framing the law of abetment. We have
provided that the punishment of the abettor of an offence shall be equal or propor-
tional to the punishment of the person who commits that offence ; and this seems
to us a sound principle when applied only to the punishments provided by this
Code. But the military penal law is, and must necessarily be, far more severe than
that under which the body of the people live. The severity of the military penal
law can be justified only by reasons drawn from the peculiar habits and duties of
soldiers, and from the peculiar relation in which they stand to Government. The
extension of such severity to persons not members of the military profession ap-
pear to us altogether unwarrantable. If a person, not military, who abets a breach
of military discipline, should be made liable to punishment regulated, according to
our general rules, by the punishment to which such a breach of discipline renders
a soldier liable, the whole symmetry of the penal law would be destroyed. He who
should induce a soldier to disobey any order of a commanding officer would be
liable to be punished more severely than a dacoit, ^ professional thug, an incendiary,
a ravisher, or a kidnapper. We have attempted in this chapter to provide, in a

(ei) Ibid ,

SBCS. 131-32] of offences EelatIng to tut armV, navy, etc. 215

manner more consistent with the general character of the Code, for the punishment
of persons who, not being military, abet military crimes " (f).

131 . Whoever abets the committing of mutiny by an

..... .. officer, soldier, sailor or airman, in the

Abetting mutiny, or. v i » • r . i

attempting to seduce a Army, Navy or Air rorce or the

soldier, sailor or airman or attempts to seduce any such officer, sol-
from his duty. ., r . t i • 11 •

dier, sailor or airman from his allegiance
or his duty, shall be punished with transportation for life, or with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.

Explanation . — In this section the words “ officer/* “ soldier M
and “airman” include any person subject to the Army Act, the
Indian Army Act, 191 1, or the Air-force Act, or the Indian Air-
Force Act, 1932, as the case may be.

This section punishes abetment of mutiny or attempt at seducing a soldier or
sailor from his duty.

This section corresponds with s. 7 of the English Army Act (1881) 44 and 45
Viet., c. 58.

See now the Army Act (44 and 45 Victoria, c. 58) as contained and
amended by subsequent annual Army Acts.

Legislative changes In the heading to this Chapter the words ‘and air
force * were added by the Repealing and Amending Act X of 1927. The words
‘ or airman * in the body of the section and the explanation were added and the
words in the explanation ‘Army Act, the Indian Army Act, 1911, or the Air-
Force Act, as the case may be * were substituted for the words ‘Articles of
War, for the better Government of Her Majesty’s Army, or to the Articles of War
contained in Act No. V of 1869* by Act X of 1927. The words ‘or the Indian
Air-Force Act, 1932* were added by Act, XIV of 1932. It may be mentioned
however that the explanation was added by s. 61 of Act XXVII of 1870.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundabie —
Triable by Court of Session.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (i name of
accused ) as follows : —

That you, on or about the day of , at , abetted the

commission of mutiny by —an officer (or soldier, or sailor or aiman) in

the Army (or Navy or Air Force) of the King Emperor (or attempted to seduce— —

an officer, soldier or sailor or air-man in the Army (or Navy or Air-Force) of

the King Emperor from his allegiance (or his duty), and thereby committed an
offence punishable under s. 131 of the Indian Penal Code, and within the cog-
nizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

132 . Whoever abets the committing of mutiny by an

* officer, soldier, sailor or airman, in the

i i mutiny is committed i .# ^ » i • i ^

in consequence thereof, shall, it mutiny be committed m conse-
quence of that abetment, be punished

(f) Not* D,

THE INDIAN PENAL CODE

216

[chap, vn

with death or with transportation for life, or imprisonment of
either description for a term which may extend to ten years, and
shall also he liable to fine.

Abets — s. 107.

This section provides an enhanced punishment for the abetment of mutiny,
if mutiny is committed in consequence of the abetment. See explanation to s. 109
for the meaning of the expression ‘in consequence of abetment*.

Legislative changes : — The words ‘ or Air-man * and 4 or Air-Force * in the
sections were added by Act X of 1927.

Procedure r— Cognizable— -Warrant — Not bailable— Not compoundable—
Triable by Court of Session.

Charge:—! (name and office of Magistrate etc.,) hereby charge you (name
of (HStused) as follows : —

That you, on or about the day of , at , abetted the

commission of mutiny by , an officer (or soldier, or sailor, or air-man)

in the Army (or Navy, or Air-Force of the King Emperor) and mutiny was com-
mitted in consequence of that abetment, and thereby committed the offence under
s. 132 of the Indian Penal Code, and within the cognizance of the Court of Session
(or the High Court).

And I hereby direct that you be tried on the said charge.

133. Whoever abets an assault by an officer, soldier,
tl r sailor or airman, in the Army, Navy or

by soldier, 1 sailor** or Air-Force of the Queen, on any superior
air man on his superior officer being in the execution of his office,

Uon*of ids' office. c ‘ vecu s h fl ” be punished with imprisonment of
either description for a term which may
extend to three years, and shall also be liable to fine.

Legislative changes s— ' The words *' or air- man ” and “ or Air-Force ”
were added by Act X of 1927.

This section and the next deal with abetment of assault by any officer, soldier
or sailor but the distinction is that while the next section makes it an offence only
when the abetment of assault is in consequence of such abetment, the present sec-
tion punishes assault on the superior officer in execution of his office. The abetment
is the abetment of an assault on a superior officer.

Analogous law : — This section is analogous to s. 8, Army Act, 1881, (44
and 45 Viet., c. 58).

Procedure t— Cognizable— Warrant— Not Bailable— Not Compoundable—
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — I (name and office of Magistrate etc.,) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at , abetteed an

assault by an officer (or soldier, or sailor, or air-man) in the Army

(or Navy, or Air-Force) of the King Emperor on-; a superior officer being

in the execution of his office, and thereby committed an offence p unishab le under
s. 133 of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

SECS. 134-36] OF OFFENCES RE : ARMY, NAVY & AIR FORCE 217

134* Whoever abets an assault by an officer, soldier.
Abetment of such sailor or airman, in the Army, Navy or
assault if the assault Air-Force of the Queen, on any superior
is committed. officer being in the execution of his office,

shall, if such assault be committed in consequence of that abet-
ment, be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable
to fine.

Legislative changes : — The words ‘ or Air-man ’ and ‘ or Air-Force * were
added by Act X of 1927.

Procedure— same as for s. 133 but is exclusively triable by a Court of
Session.

Charge— same as the Form set out under s. 133 adding 'and which he
committed in consequence of the abetment after being in the execution of his
office ’ and omitting ‘ within my cognizance.'

135. Whoever abets the desertion of any officer, soldier,

. sailor or airman, in the Army, Navy or

tion^f“oTdicr,°iiio? se o r r Air-Force of the Queen, shall be punished
airman. with imprisonment of either description

for a term which may extend to two years, or with fine, or with
both.

Legislative changes The words 4 or Air-man * and 4 or Air-Force *
were added by Act X of 1927.

This section punishes abetment of desertion of soldier or sailor.

Procedure : — Cognizable, — Warrant, — Bailable Not compoundable

Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I (name and office of Magistrate , etc.,) hereby charge you ( name of
accused) as follows : —

That you, on or about the day of , at , abetted

the desertion of , any officer (or soldier or sailor or air-man) in the

Army or Navy or Air-Force) of the King Emperor, and thereby committed an
offence under s. 133 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Desertion: — See Army Act (VIII of 1911); it implies absence without leave
with the intention not to return to his duty.

Soldier : — * Soldier * in this section must be interpreted as in Explanation
to 9 . 131, supra. The definition of the word 4 Soldier ' given in the Indian Articles
of War is expressly confined to those Articles and is a very limited one (g).

136* Whoever, except as hereinafter excepted, knowing or hav-
„ . . . . ing reason to believe that an officer, soldier,

Harbouring daror.rr. ^ ^ ^ ^ Nayy „ Air-

Force of the Queen, has deserted, harbours such officer, soldier,
sailor or airman, shall be punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.

(g) Sri Nawas, (1920)P. L. R. No. 102 of (1920)21 Cr. L. J. 611 : 66 I. C. 671.

[ CHAP- VII

218 THE INDIAN PENAL COPE

Exception . — This provision does not extend to the case in
which the harbour is given by a wife to her husband.

Legislative changes The words “ or air-man " and “ or Air-Force " were
added by Act X of 1927.

This section punishes 1 harbouring deserter * which in the language of English
law means “concealing such deserter or aiding or assisting him in concealing
himself, or aiding or assisting in his rescue " vide s. 153 (3), Army Act VIII of
1880 (53 and 54, c. 4) and s. 153 (2).

The term ‘harbour ’ has been defined in s. 216-B. Exception is made only
in the case of a wife who harbours her husband or the husband harbouring his wife.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at , know-
ing (or having reason to believe) that , an officer (or soldier or sailor

or air-man) in the Army (or Navy or Air-Force) of the King Emperor had deserted
(or harboured) such officer, (or soldier or sailor) and thereby committed an offence
punishable under s. 136 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

137. The master or person in charge of a merchant vessel,
„„ on board of which any deserter from the
board merchant vessel Army, Navy or Air force or the tjueen
master h neghRence of is concealed, shall, though ignorant of
such concealment, be liable to a penalty
not exceeding five hundred rupees, if he might have known of such
concealment but for some neglect of his duty as such master or
person in charge, or but for some want of discipline on board of
the vessel.

This section punishes the master or person in charge of a merchant vessel for
whose negligence a deserter conceals himself on board.

Procedure s — Non-cognizable — Summons — Bailable — Non-compoundable and
Triable by Presidency Magistrate or Magistrate of the first or second class and
triable summarily.

Charge :~1 ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That a deserter from the Army (or Navy or Air-Force)

of the Emperor, had concealed himself on or about the day of

at on board a merchant vessel of which you are

the master (or person in charge) through your neglect of duty as such master (or
person in charge) or want of discipline on board the said vessel and that you have
thereby committed an offence punishable under s. 137 of the Indian Penal Code,
and within my cognizance.

And I hereby direct that you be tried on the said charge.

SECS. 188-39 ] OF OFFENCES RELATING TO THE ARMY, NAVY, ETC. 219

138. Whoever abets what he knows to be an act of insub-

ordination by an officer, soldier, sailor or air-
Abetment of act of man, in the Army, Navy or Air-Force of the
insubordmation by sol- Queen, shall, if such act of insubordination
dicr, sailor or air-man. be committecl in consequence of that abet-
ment, be punished with imprisonment of
either description for a term which may extend to six months, or
with fine, or with both.

Legislative changes: — The words ‘or air-man* and ‘ or Air-Force ’
were added by Act X of 1927.

This section punishes abetment of an act of insubordination by soldier,
sailor or air-man.

For * insubordination * in Military law, see s. 110, Army Act, 1881 , and Army
Act of 1911, s. 28.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable and is
triable by Presidency Magistrate or Magistrate of the first or second class and
may be tried summarily.

Charge : — I (name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, or or about the , day of , at , abetted

what you knew to be an act of insubordination by , an officer (or soldier

or airman) in the Army (or Navy) in consequence of the said abetment, and you
thereby committed an offence punishable under s. 138 of the Indian Penal Code,
and within my cognizance.

And I hereby direct that you be tried on the said charge.

138- A. The foregoing sections of this Chapter shall apply
Application of fore- as jf Her Majesty’s Indian Marine Service
Indian Marine Service, were comprised in the Navy ot the Vjueen.

Legislative changes : — This section was inserted by the Indian Marine
Act, 1887 (XIV of 1887) s. 79.

This section says that offences relating to the “ Navy of the Queen ” as dealt
with in Ss. 131-138 of the Code will apply to the Indian Marine Service which is
not a part of the Navy of the King Emperor.

139. No person subject to the Army Act, the Indian Army
Persons subject to Act, 1911, the Naval Discipline Act, the Air -

certain Acts. Force Act orthe Indian Air-Force Act, 1932,

is subject to punishment under this Code for any of the offences
defined in this Chapter.

Legislative changes : — The words printed in italics were substituted for the
words * any Articles of War for the Army or Navy of the Queen, or for any part of
such Army or Navy ’ by Act X of 1927. The words ‘Certain Acts’ in the
Marginal Note were substituted for the words ‘Articles of war ’ by s. 2. The
words ‘or the Indian Air-Force Act. 1932 ' were added by Act XIV of 1932.

This section enacts that a person subject to the Military law cannot be
punished under this Code under this Chapter. They will be dealt with under the
Military law.

220

THE INDIAN PENAL CODE

[CHAP. VIII

140 . Whoever, not being a soldier, sailor or air-man in the
Military, Naval or Air- service of the Queen,
Wearing garb or wears any gar b or carries any token resem-
soldier, sailor or airman, bling any garb or token used by such a
soldier, sailor or air-man, with the intention
that it may be believed that he is such a soldier, sailor or air-man,
shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine which
may extend to five hundred rupees, or with both.

Legislative changes The words printed in italics were added by Act X
of 1927.

This section punishes false personation of a soldier by wearing garb or carry*
ing token used by soldiers, but merely wearing a soldier’s garb is no offence unless
there is an intention of the person so wearing to deceive others to believe that he is
a soldier.

The Code does not make it penal to wear the cast uniforms of soldiers used for
the purpose of clothing.

Procedure: — Cognizable — Summons —Bailable — Not compoundable — Triable
by any Magistrate and may be tried summarily.

Charge : — 1 (name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, not being a soldier in the Military (or Naval or Air) service of the

King Emperor, on or about the day of , at — ,

wore a garb (mention the garb ) (or carried a token resembling specify it) (or used
by such soldier or sailor or air-man) with the intention that it might be believed
that you were such a soldier, and thereby committed an offence punishable under
s. 140 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

CHAPTER VIII.

Of Offences against the Public Tranquillity.

“ These offences hold a middle place between State offences on the one hand,
and crimes against person and property on the other. Many of the offences made
punishable by other Chapters of the Code involve in their commission a disturb-
ance of the public peace. But the present Chapter punishes especially unlawful
assemblies of persons who, whether they assemble tumultuously or otherwise,
have a common unlawful purpose in their minds, the execution of which will dis-
turb public order and excite alarm.

“ The essence of these offences is the unlawful assembly This is more

or less aggravated by other circumstances which attend or follow it,— as the being
armed, the making preparations to execute the common unlawful object, or the
actual execution of such object. But there must be an unlawful assembly. Merely
conspiring together, by writing or other means of correspondence, without any
meeting, is not therefore the offence hereby made punishable.

" The chapter of General Exceptions should be carefully borne in mind,
especially the exceptions concerning acts done by the direction of public servants

SEC. HO] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

221

or in the exercise of the right of private defence. A gathering of persons for objects
such as those contemplated by the above exceptions would of courre not be unlaw-
ful " (h).

The intention indicated by the heading of this Chapter (Chapter VIII) was to
constitute certain acts, which endangered the public peace, into Offences against
Public Tranquillity, but it does not follow from it either that a person may do what
he is entitled to do or prevent another from doing what he is not entitled to do by
means of criminal force or by show of criminal force. In construing s. 141, regard
must be had not only to the general intention deducible from the heading of the
Chapter, but also to the specific mode in which the Legislature intended to carry
out that intention (i). The offence punishable under s. 143 is being a member
of an unlawful assembly; that under s. 144 is being such member armed with
anything which, used as a weapon of offence, is likely to cause death ; and that
under s. 145 is the continuing in an unlawful assembly M knowing that such un-
lawful assembly has been commanded in manner prescribed by law to disperse*’ (j).

The essence of the offence under s. 143, is the combination of several persons,
united in the purpose of committing a criminal offence, and that concensus of
purpose is itself an offence distinct from the criminal offence which these persons
agree and intend to commit (k).

S. 142 deals not with the case of innocent spectator of an unlawful assembly
but provides that such a spectator becomes a member of an unlawful assembly if
he has intentionally joined it, or continued in it after he became aware of the facts
which render it unlawful. S. 146 defines the offence of 4 rioting,* s. 147 provides
punishment for the offence of 4 rioting ’ and s. 148 provides punishment for 4 rioting
armed with deadly weapon.’ S. 149 creates no offence but like s. 34 deals with
constructive liability and refers to common object and provides that it must be
proved that the offence though committed in prosecution of the common object
of the unlawful assembly, is one which the accused, a member of such an assembly,
knew would be likely to be committed in prosecution of the common object. S. 150
deals with hiring or conniving at hiring of persons to join an unlawful assembly ;
s. 151 penalises knowingly joining or continuing in such assembly after it has been
commanded to disperse; s. 152 deals with assaulting or obstructing public servant
in the discharge of his duty to suppress riot etc. ; s. 153 deals with ‘wantonly giving
provocation to cause riot, etc., and provides for an enhanced punishment if rioting
followed. S. 153-A deals with indirect sedition or promoting enmity between
classes. Ss. 154 to 156 deal with the duties of police imposed by law on the land-
holders-corresponding provisions of which are to be found in s. 45 of the Criminal
Procedure Code. Ss. 157 and 158 deal with harbouring persons hired for an unlaw-
ful assembly or being hired to take part in such assembly or riot. S. 159 defines
‘ commit an affray ’ and s. 160 provides punishment for the offence of “ Affray.”

English law : — According to Lord Coke, an unlawful assembly consists of
three or more persons who assemble to commit a riot or rout (1).

Riot “ A riot is a tumultous disturbance of the peace by three persons or
more , who assemble together of their own authority with an intent mutually to assist
one another against any who shall oppose them in the execution of some enter-
prise of a private nature and afterwards actually execute the enterprise in a violent
and turbulent manner to the terror of the people, whether the act intended was of

(h) Morgan and Macpherson , Penal Code p. 118.

(i) Per Muttuswami Ayyar, J,, in Tirakadu , (1890) 14 M. 126 (130).

(j) Md, pp. 131, 132.

(k) Matti Venkanna, (1922) 46 M. 257.

(l) Coke. 3 Inst. 176,

222

THE INDIAN PENAL CODE

[ CHAP. VIII

itself lawful or unlawful, that is to say, doing the act whether lawful or unlawful in
a manner calculated to inspire terror is an essential element in the offence ” (m).

Unlawful Assembly " In substance it means that an assembly is unlawful
if it may reasonably be found that it will endanger the public peace ; 4 if a meeting
from its general appearance and accompanying circumstances is calculated to excite
terror, alarm and consternation, it is generally criminal and unlawful.' And any
meeting assembled under such circumstances as, according to the opinion of rational
and firm men, are likely to produce danger to the tranquillity and peace of the
neighbourhood, is an unlawful assembly. In viewing this question, the jury should
take into consideration the way in which the meeting was held, the hour at which
they met, and the language used by the persons assembled, and by those who
addressed them, and then consider whether firm and rational men, having their
families and property there, would have reasonable ground to fear a breach of the
peace, as the alarm must not be merely such as would frighten any foolish or timid
person, but must be such as would alarm persons of reasonable firmness and
courage. AH persons who join an assembly of this kind, disregarding its probable
effect and the alarm and consternation which are likely to ensue, and all who give
countenance and support to it are criminally responsible as parties to the assembly (n)."

It may be pointed out that the Indian law requires an assembly of five or
more persons with the common object mentioned in s. 141 in order to constitute
an ' unlawful assembly.*

141 . An assembly of five or more persons is designated

Unlawful assembly. an “ unlawful assembly,” if the common
object or the persons composing that

assembly is —

First . — To overawe by criminal force, or show of criminal
force, the Legislative or Executive Government of India, or the
Government of any Presidency, or any Lieutenant-Governor,
or any public servant in the exercise of the lawful power of
such public servant ; or

Second . — To resist the execution of any law, or of any legal
process ; or

Third . — To commit any mischief or criminal trespass, or
other offence ; or

Fourth . — By means of criminal force, or show of criminal
force, to any person to take or obtain possession of any property,
or to deprive any person of the enjoyment of a right of way, or of
the use of water or other incorporeal right of which he is in pos-
session or enjoyment, or to enforce any right or supposed right ;
or

Fifth . — By means of criminal force, or show of criminal force,
to compel any person to do what he is not legally bound to do,
or to omit to do what he is legally entitled to do.

Explanation . — An assembly, which was not unlawful when
it assembled, may subsequently become an unlawful assembly.

(in) Russel on Crimes and Misdemeanours, 8th ed., Vol. I., p. 414.
(n) Ibid 8th ed., Vol. I. p. 128.

SEC. 141 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

223

Criminal Force — s. 350. Government of India — s. 16.

Government-* a. 17. Presidency — s. 18.

Public Servant — s. 21* Mischief — s. 425.

Scope : — In construing this section, regard must be had not only to the general
intention deducible from the heading of the Chapter but also to the specific mode
in which the Legislature intended to carry out that intention. The words in clause
4 ‘ to enforce a right or supposed right ' show that it is perfectly immaterial whether
the act which one seeks to prevent by the use of criminal force or show of criminal
force is legal or illegal, the test of criminality being the determination to use crimi-
nal force and act otherwise than in due course of law so as* to threaten the public
peace * (o). The essence of an offence under this section is the common object of
the persons forming such an assembly which to constitute an unlawful assembly
must come within one of the clauses of this section fp).

In order to be guilty of the offence of rioting the person must bj a member
of an unlawful assembly, and force or resistance must be used by some member
of the unlawful assembly in prosecution of the common object of it, or by the
unlawfn! assembly (q).

Essential ingredients of * Unlawful Assembly’ : — (I) It should consist
of five or more persons who should meet for a common object and must share a com-
mon intention ; (2) The common object of such assembly must be one of the
clauses of s. 141.

Five or more persons : — The Madras High Court has held that before there
can be an unlawful assembly and rioting, there must be five persons who have a
common object (r). The Calcutta High Court has held that the mere fact of more
than five persons being collected together awake at night in one bari does not afford
a legal presumption that they were so assembled for an object which must neces-
sarily be one out of the large number of objects specified in this section (s). But
the mere combination or assemblage of five men does not render their meeting
unlawful unless the meeting was in pursuance of a common unlawful object (t).
If five or more persons assemble to resist the rightful owner to re-enter his
property, they constitute an unlawful assembly, the common object being to
enforce a supposed right (u), but where five or more persons assemble for
maintaining a right which they bona fide believe they possess, they do not consti-
tute an unlawful assembly (v). The Patna High Court h*is held that unless right
of private defence is pleaded, bona fide claim of title or a claim of possession
will avail nothing (w).

An assembly lawful in its inception may become unlawful by its acts and
when force is used, the graver offence of rioting has been committed (x).

Where two opposite parties commit a riot, it is irregular to treat both parties
as constituting one unlawful assembly and to try them together inasmuch as they
cannot be said to have ‘ one common object * within the meaning of this section,

(o)

8

(1874)

(t)

(»)

(1926) 5

a

w

Per Muttuswami Iyysr, J., in Tirkadu, (1890) 14 M. 126 (130).
Pellimulhu Thevan, (1900) 24 M. 124.

Birioo Singh v. Khub Lall, (1873) 19 W. R. (Cr.) 60.

Vyabwi Chetty, (1909) 6 M. L. T. 286: 4 I. C. 1142.

Koylash Chandra Das, (1873) 20 W. R. 17 (Cr.) ; Ghoiam Mahomed.
2 W. R. 17 (Cr.). . „ „ „

Vy afiuri Chetty, (1909) 6 M. L. T. 286: 4 I. C. 1142.

Bandhoo Singh, (1927) 6 P. 794; A. I. R. (1928) P. 124, see Lukhmt Singh,
9 Cr. L. J. 667 : A. I. R. (1928) P. 662. N

Veerabadra PiUai, (1927) 61 M. 91 : 63 M. L. J. 696 : (1927) M. W. N. 828
Ghyasuddin Ahmad, (1932) IIP. 623. _ _ v n{ i gag

Khtmu Singh (1864) 1 W. R. (Cr.) 18 ; Konra, (1868) P. R. No. 84 of 18 8.

224

THE INDIAN PENAL CODE [ CHAP. VIII

when the evidence show3 that each party constitutes an assembly having an object
totally distinct from that of the other party (y).

Common object Members of an unlawful assembly may have a com-
munity of object only up to a certain point, beyond which they may differ in their
objects, and that the knowledge possessed by each member of what is likely to be
committed in prosecution of their common object will vary, not only according to
the information at his command, but also according to the extent to which he shares
the community of object (z).

Among the members of a religious procession those, who promoted or com-
mitted disturbance with the common object of overawing a police-officer in the
lawful discharge of his duties, would constitute an unlawful assembly (a).

In order to sustain a conviction under s. 141, it is necessary to find that the
person accused of that offence was a member of an unlawful assembly and that he
used force or violence in prosecution of the common object o* such assembly (b).
The ‘ comfhon object * of an assembly is to be ascertained from the acts and
language of the members composing it and from a consideration of the surrounding
circumstances (c). In order to establish the common intention of an unlawful
assembly it is not necessary that its members actually met and conspired to commit
an offence, but such intention can be inferred from the circumstances of the case (d).

In order to convict a person of the offence of being members of an unlawful
assembly, it must be shown that the accused persons are actuated by a common
object or that any acts done by any one of them were of such a nature as to make
them guilty under this section (e).

Clause 1. — This clause may be compared with the provisions of s. 121 -A
dealing with conspiracy to overawe by means of criminal force or the show of criminal
force of the Government of India.

Where the common object found is to overawe the police in the performance
of their duty, persons who were committing any act of violence were held to be
members of an unlawful assembly (0.

Crowd of spectators A crowd of persons assembling to see what the
police-officers were doing in arresting a person who had escaped from lawful arrest,
who do not use force or show of force, do not form an unlawful assembly (g).

Clause 2.— 4 To resist the execution of any law, or of any legal
process 9 : — This clause makes it penal to resist the execution of a legal order or
that of any legal process.

The Patna High Court has held that ‘ Resistance * implies something more than
disobedience and a mere intention to disobey will not suffice. Resistance connotes
some overt act and that mere words, when there is no intention of carrying them
into effect, will not be sufficient to prove an intention to resist ; but the conduct
of the mob and their refusal to disperse at the command of the police clearly consti-
tutes overt acts and establish a common object to resist the orders within the

(y) Suroop Chundcr Paul, (1809) 12 W. R. (Cr.) 75.

(z) Jahiruddin , (1891) 22 C. 300 followed in Adil Mahomed , (1908) 8 C. L. J.

561.

(a) Ragho Singh , (1901) 6 C. W. N. 507.

(b) Ata Mahomed , 5 L. L. J. 475: A. I. R. (1923) Lab. '692.

(c) Per Benson, J., in Pellinmthu Thevan, (1900) 24 M. 124 (129) ; see Ramaswami
(1925) M. W. N. 666.

(d) Ragho Singh, (1901) 6 C. W. N. 507.

(e) Dinobundo , (1868) 9 W. R. (Cr.) 19.

(f) Ragho Singh , (1901) 6 C. W. N. 507

<g) Lalji, (1924) 23 A. L. J. 32.

SEC. 141] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

225

meaning of this clause (h). In Subhash Chandra Bose's case (i) this view taken by
the Patna High Court was followed.

Where the common object was to rescue property attached under a warrant
which did not bear the seal of the Court, the Patna High Court held that the accused
were not guilty of rioting G) »' and similarly where the common object was to
resist a search and it was found that the Excise-officer had no legal authority to
make the search, held that the offence as defined under s. 141 was not com-
mitted (k).

This clause would not have the effect of making an assemblage of persons an
unlawful assemblage, if the object with which they assembled was a perfectly legal
one (1), but where the accused in defence of their rights resisted the execution of an
order which was made without authority from the Collector and did not use more
force than was necessary, held that they could not be convicted under this section (m).

According to Hawkins, “ an assembly of a man's friends in his own house, for
the defence of the possession thereof, against those who threaten to make an unlaw-
ful entry therein to or for the defence of his person against those who threaten to
beat him therein is indulged by law for a man’s house is looked on as his castle ” (n).

The question arises : How far strangers are justified in resisting the execution
of any legal process or in interposing on behalf of one who is being arrested by
persons professing to act under authority but who are not justified in their action .
Lord Ellenborough, C. J. t observed : “ If a man without authority attempt
to arrest another illegally, it is a breach of the peace, and any other person may law-
fully interfere to prevent it, doing no more harm than is necessary for that
purpose ” (o).

Clause 3.— 4 To commit any mischief or criminal trespass or other
offence 9 : — Where a criminal intention is an ingredient in the offence, e.g.,
4 mischief * or 4 criminal trespass,* this clause will not apply if it can be shown that
the accused had a right or bona fide believed that he had a right to do the act.

Where persons assembled not for any unlawful purpose nor were they sum-
moned together for the purpose of committing a breach of the peace but were
charged under Ss. 141 and 425, they could not be convicted of rioting (p), see
Veerabadras case (q) noted above.

Where the common object of the assembly was not to arrest persons who had
committed an offence but to subject to humiliation persons who intervened on
behalf of the offenders, such assembly is designated an * unlawful assembly 4 within
the meaning of the third clause of this section (r).

Obstruction to use of water Where the common object of the mob was
by means of criminal force or show of criminal force to deprive the cultivators of
M of the use of water of N of which they were in enjoyment, and the defence
pleaded bona fide claim of right, the Calcutta High Court held that the accused could
not be convicted under s. 430 as there was right or bona fide claim, but there might

(h) Abdul Hamid , (1922) 2 Pat. 134 : 3 P. L. J. 580 : (1922) Pat. Supp. C. W. N.
274 : 23 Cr. L. J, 625 : 68 I. C. 945 : A. I. R. (1923) Pat. 1, considered in The Pubhc
Prosecute* V. Satyauaraycvna (1C30) 01 M. I-. J. 842, where conviction under s. 30 (2)
Police Act, was upheld.

(i) (1931) 68 C. 1303 : 96 C. W. N. 716.
j Khadir Bux, (1918) 3 Pat. L. J. 636.

Jagannath Mandhata, ( 1897) 24 C. 324. ..... . . .

Umacharan Singh, (1901) 29 C. 244 (247) ; Ntkka Jogt, (1882) 1 Weir 64.,
Narain. (1876) .7 N. W. P. H. C. R. 209.

1 Hawk, P. C. 616.

... Ostner, 6 East. 304.

(p) Rajcoomer Singh, (1878) 3 C. 673.

(q) (1927) 8PM. 91.

(^ RamashayRam, (1920) 31 C. L. J. 467.

(k)

(l)

(m)

(n)

zr

226

THE INDIAN PENAL CODE

[CHAP. VIII

be an unlawful assembly and a riot in respect of a right which the rioters desire
to enforce, and found the mob guilty not under this clause but under cl. (4) of
this section (s).

Where the petitioners obstructed the flow of water coming from a rice-mill
of the complainant and flowing into a channel which empties into a public channel,
held that the accused were acting under colour of right inasmuch as the drainage
from the mill was polluting the water-supply, damaging the crops and rendering
the water unfit for drinking purposes (t).

Landlord interfering with water-supply : — Before the landlords or their
agents could be convicted under s. 430 for interfering with the water-supply, it must
be made abundantly clear that the landlords could not have a right to do what they
did with reference to the khals (u).

Curgenven, J., in explaining Doraiswamy Muthirayan v. Muttachi (v), held
that the accused persons taking steps to prevent contamination of their drinking
water supply by the water from complainant’s mill could not be held guilty under
Ss. 143 and 426 (w).

Obstruction to police in the discharge of their duties -Where inti-
midation and obstruction was offered to the police while they performed their duties
to suppress an unlawful assembly no sooner than it arrived at the police station,
held that such object of the assembly constituted an offence under this clause (x).

Harassing Hindus Where the common object with which members of an
unlawful assembly were charged was that of * harassing Hindus,’ held , the charge
is not too general, but falls within the purview of the expression * to commit any
mischief or criminal trespass or ether offence ’ (y).

Persons disobeying order to disperse do not come within the purview

of s. 141 : — An assembly which is not unlawful in its inception does not becofhe
unlawful merely because it continues without dispersing in defiance of the lawful
order to disperse, for there is no clause under s. 141 to say that an assembly refusing
to disperse in obedience to a lawful command becomes an unlawful assembly (z),
but where the offence which is alleged to be the common object of an assembly .is
an offence under s. 188, it falls under this clause (a). This case was not cited by
the Crown Advocate in Subhash Chandra Bose's case (b). Both these decisions do not
seem to be correct.

Clause 4. — By means of criminal force , or show of criminal force , to
any person , to take or obtain possession of any property or to deprive any person
of the enjoyment of a right of way , or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to enforce any right or supposed right .

When a party is in possession for four or five days, though it may be in wrongful
possession, held, the accused, although claiming to be the rightful owner, is not
entitled to go in force to turn them out (c).

(s) Deputy Legal Remembrancer , Behar and Orissa V. Matukdhari Singh , (1016)
20 C. W. N. 128 : 17 Cr. L. J. 9 : 32 I. C. 137.

(t) Talipathy V. Sonam Kankhya, (1929) M. W. N. 711.

(u) Ashutosh Chose , (1929) 60 C. L. J. 689.

(v) (1018) M. W. N. 167 : 23 M. L. T. 210 : 44 I. C. 500.

(w) (1929) M. W. N. 711 : A. I. R. (1929) M. 833.

(x) Abdullah, A. I. R. (1924) A. 233.

(y) In re. Parakushiyil Ayamad, (1923) 18 L. W. 350 : 24 Cr. L. J. 862 : 74
I. C. 1044 : A. I. R. (1924) Mad. 376,

(z) Girdhara Singh , (1921) 3 L. L. ]. 529 : P. L. R. No. 21 of 1922 : 23 Cr.
L. J. 5 : 64 I. C. 373 : A. I. R. (1922) Lah. 136.

(a) Bhalchandra Trimbah Ranadive , (1929) 64 B. 35. 31 Bom. L. R. 1151

A.I.R. (1920) B. 433. '

(b) (1931) 58 C. 1303 ; 35 C. W. N. 716. *

(c) Moher Sheikh, (1893) 21 C. 392 ; PfUg Dat t (1898) 20 A. 459 .

227

SEC. 141 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

Hawkins observes : “ It Is to be observed that wherever a man either by
his behaviour or speech at the time of his entry, gives those who are in possession
of the tenements which he claims, just cause to fear that he will do them some bodily
hurt, if they will not give away to him, his entry is esteemed forcible, whether he
causes such a terror by carrying with him such an unusual number of servants, or by
arming himself in such a manner as plainly indicates a design to back his pretensions
by force, or by actually threatening to kill, maim or beat those who shall continue
in possession, or by giving out such speeches as plainly indicates a design to back his
pretensions by force, or by actually threatening to kill, maim, or beat those who shall
continue in possession, or by giving out such speeches as plainly imply a purpose
of using force against those who shall use any resistance ” (d).

Where a number of persons went to sow the land belonging to the complainant
together with a body of men armed with /a this and were prepared to use force if
necessary, it was held that the accused were guilty of an offence under this section
because they formed an assembly for the purpose of enforcing a right by criminal
force, or show of criminal force (e). Though a person may abet a nuisance when
his rights have been infringed, a person who has not acquired any right of way or
light and whose rights have not been in any way so infringed cannot take the law
into his own hands and pull down a wall constructed by his neighbour merely to
maintain the status quo (f).

* To enforce a right or a supposed right 9 s— The words imlause 4 4 to
enforce a right or a supposed right ' show that it is perfectly immaterial whether the
act which only seeks to prevent by the use of criminal force or show of criminal
force is legal or illegal, the test of criminality being the determination to use cri-
minal force and act otherwise than in due course of law so as to threaten the public
peace (g). The true import of the expression ‘ to enforce any right * relates to an
initial act when at is done in furtherance of any right and not an act when it is done
to maintain a position already achieved in lawful exercise of that right (h). Where
a procession, which was thought by certain persons to be a nuisance or annoyance,
was forcibly interrupted by such persons, held that the forcible interruption was
an act falling within the provisions of s. 141 clause 4 (i).

Clause 4 to this section is meant to prevent the resort to force in vindication of
supposed rights (j). Holloway, J., observed : “ If a procession were actually illegal,
it would be no defence whatever to the accused, unless the right of private defence
existed 11 (k).

S. 141 of the Code must be read with s. 96 and the following, sections of the
Code. If a man is entitled to protect his life by using a lathi , it is impossible to
weigh the force of the blows which he uses for that purpose as it is said in ‘ golden
scales * and to adjudicate with great nicety as to the exact amount of force which
would be justified, provided always that no undue advantage is taken (1).

(d) 1 Hawk , P. C. 501 ; Milner V. Maclean , 2 C. and P. 17.

(e) Peary Mohun Sircar, (1883) 9 C. 039.

(f) Kishan Gopal , (1928) 30 Cr. L. J. 305 : 114 I. C. 477.

(g) Tirakadu (1890) 14 M. 126.

(h) Baijnath (1924) 20 Cr. L. J. 513 : 85 1. C. 353 : A. I. R. (1925) Oudh, 425.

(i) Anon , (1869) 6 M. H. C. R. App. vi : 1 Weir 68.

(j) Gulam Hossein Ratonsey Nanji, (1909) 11 Bom. L. R. 849; Bandhu Singh,

(1927) 0 Pj™*- 7 M H c R App xxxv . (1871) 6 M H . C . R . App . e ; Tirakadu.

(1890) 14 M. 126; Regul* Bheemapa, (1902) 26 M. 249.

(1) Hirt, (1922) 46 A. 260 : 24 Cr. L. J. 189 : 71 I. C. 606 : A. I. R. (1923)

A. 194,

228

THE INDIAN PENAL CODE

[CHAP. VIII

In the following cases (m), it has been held that the mere assemblage of persons
with a view to repeal illegal aggression upon property which is in the peaceful
possession of another is not an unlawful assembly and that violence used within the
limits of law is not rioting.

Where the common object of an assembly was, by criminal force, or show
of criminal force, if necessary, to enforce the right to keep a river clear by preventing
the construction of a btmdh , held that the accused were not defending a right but
came within the purview of clause (4) of this section (n).

Where the petitioners went with three ploughs upon land to which the com-
plainant had the right of possession and of which he was in possession till such
entry, and began to plough up the land, to uproot some castor plants and throw
them away and while they were thus in actual but temporary occupation, the com-
plainant and his party went on the land and tried to unyoke the cattle and then 4
riot took place, held that the accused were members of an unlawful assembly, the
common object of which was to enforce a right or supposed right for the exercise of
which they were prepared to use force, and that their action in beating the com-
plainant's party was not justified by the fact of their having obtained a temporary
occupation (o).

But in Veerabhadra Pittai's case (p) it has been held that the assembly is not
unlawful where five or more persons assemble for maintaining by force or show of
force a rigljt which they bona fide believe they possess.

In the following cases (q), the accused were held not to be justified.

* To maintain a right or supposed right 9 s — The phrase * to enforce a
right ’ can only apply when the party claiming the right has no possession over the
subject-matter of charge and therein lies the distinction between ‘enforcing a
right ' and * maintaining a right.' A party in possession is entitled to resist and
repel an aggression and his action in so doing would be in the, .maintenance of his
right (r).

Where the accused were in possession of their land and the complainant's party
came and attempted to cut the paddy, there was a fight the result of 1 which was
that one man was seriously wounded and subsequently died ; the common object
found was not to enforce any right or supposed right but was rather to maintain
undisturbed the actual enjoyment of a right, held that no question of unlawful
assembly arose and the conviction of the accused under s. 147 was set aside (s).
Where the accused were in peaceful occupation of certain land, the complainant's

(m) Mittoo Singh , (1865) 3 W. R. (Cr.) 41 ; Sachee Bolet , 7 W. R. (Cr.) 76 (112) ;
Tulsi, (1868) 10 W. R. (Cr.) 64; Gurucharan, (1870) 14 W. R. (Cr.) 69 ; Birjoo Singh
v. Khublal, (1873) 19 W. R. (Cr.) 66; Shunkur Singh v. Burma , Mahto, 23 W. R.
(Cr.) 25 Dinonath Ghattak V. Rajcoomar Singh , (1875) 3 C. 673 ; Panchkauri , (1897)
24 C. 685 ; Umacharan Singh , (1902) 29 C. 244 ; BikuKoer V. IV . /. Mar sham , (1901)
5 C. W. N. 368 ; Ram Khelawan Singh , 13 C. W. N. 827; ChanduUa Sheik , (1912) 18
C. W. N. 275; Baijnath Dhanuk , (1908) 36 C. 296; Fauzdar Rai, (1917) 3 Pat. L. J.
419; Narsang Pathabhai, (1890) 14 B. 441 ; Veerabhadra Pillai , (1927) 61 M. 91.

(n) Ganauri Lai Das , (1889) 16 C. 206 ; (219), followed in Ananta Lai Pandit V.
Madhusudan, (1899) 26 C. 574, see also Raman Singh , (1901) 28 C. 411; Prag Dat,
(1818) 20 A. 459; Khaliji, 24 A. 143; Muhammad Ibrahim, (1928) 30 Cr. L. J. 38:
A. I. R. (1929) Nag. 43.

(o) Jairam Mahton, (1907) 35 C. 103.

(p) (1927) 51 M. 91 : 53 M L. J. 696 : (1927) M. W. N. 828.

(q) Jairam Mahton , (1907) 35 C. 103; Kabiruddin, (1908) 36 C. 368; Mani -
ruddin , (1908) 35 C. 384 ; Ambica Lai, (1908) 35 C. 443.

(r) Ramtnanandan Prasad Singh, (1911) 17 C. W. N. 1132: 14 Cr. L. J. 463:
20 I. C. 623, followed in Bagh S*ngh, (1923) 25 Cr. L. T. 626 : 81 I. C. 113 : A. I. R.
(1925) L. 49.

(s) Silajit Mahto, (1909) 36 C. 866: 13 C. W, N. 853 : 9 C. L. J. 578 : 2 I. C.
169 (leading case).

SEC. 141 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

229

party began to erect some huts on the land stealthily in the darkness of the night
and were in possession for about 14 hours ; at day break the accused coming to
know what was happening came to the place fully armed in order to drive away the
trespassers and the result was that there was a free fight between the parties in
which both sides were wounded, held that as the petitioners were in actual physical
possession of the property and in the circumstances of the case they had no time to
have recourse to the public authorities and as the injuries inflicted by them were
within the limits allowed by the right of private defence, they were not guilty of
rioting (t).

Persons merely acting in the maintenance of an existing peaceful possession,
whether that possession was with title or without title cannot be said to be en-
forcing a right or supposed right so as to form an unlawful assembly within the
meaning of clause (4) of this section (u). But the Patna High Court has held that
the tenant whose right is determined has no right to remain forcibly upon the land
and say to his landlord that he will cultivate that land till such time as he is evicted
by a civil Court. From the moment the title of the tenant expires, the landlord
is in possession in the eye of law, and provided that he does not use undue force,
he is entitled to go upon the land and if necessary to use force for the purpose of
asserting and maintaining his possession (v). Though a person who is the owner
of a piece of land may be entitled to eject a person in possession by taking pro-
ceedings in civil Court, he is not justified in taking a mob of men and forcibly
turning out the man in possession. If he does so, he and those who act with him
will be guilty of being members of an unlawful assembly. The right of private
defence of property does not avail him in these circumstances (w).

In the following cases (x) the use of force for defensive purposes has been held to
be justified.

A person cannot be convicted of criminal trespass because he asserts a grazing
right which has been never declared against him and which he bona fide believes
he has, ncr can he be said to be a member of an unlawful assembly because he went
with his party and protested against the land being ploughed up (y). But where
tenants believed bona fide that the zamindar of the accused tenants gave them grazing
rights over the land and they objected to a tenant of a rival zamindar ploughing
up a portion of the land which they alleged was covered by a lease granted to the
accused by the Receiver, held , they could not be convicted either under s. 1 43 or
s. 447 (z). Where the quarrel was forced on the accused who went merely to protect
a possession that was his and in course of the fight a person was killed on the op-
posite side and the accused was convicted and sentenced under Ss. 148 and 326 t
held that the accused was entitled, if violence was used, to meet violence with vio-
lence and he was justified in collecting his men and arming them sufficiently to
prevent the crcps from being removed from his field in the event of the police not
arriving in time (a).

(t) Chandullah, (1912) 18 C. W. N. 275 : 15 Cr. L. J. 209 : 22 I. C. 993, distin-
guishing the cases Moher Sheikh, (1893) 21 C. 392 and Kabiruddin, (1900) 35 C.
308: 12 C. W. N. 384: 7 C. L. J. 359.

(u) Sarabdawan Singh, (1913) 15 Cr. L. J. 232 : 23 I. C. 184.

(v) Gita Prasad Singh, (1923) 5 Pat. L. T. 565 : 25 Cr. L. J. 919 : 81 I. C.
535 : A. I. R. (1925) P. 17.

(w) Jasuram, (1923) A. I. R. (1924) Pat. 143.

(x) Punni Basara, 5 M. L. T. 85 : 2 I. C. 013 ; Shun her V. Burma Mahto ,
23 W. R. (Cr.) 25; Panchkari, (1897) 24 C. 680: Poresh Nath Sircar, (1905) 33 C.
296; Jhalku Tewari, (1913) 17 C. W. N. 1081 : 21 I. C. 382; Silajit Mahto , (1909)
36 C. 865 : 13 C. W. N. 853 : 9 C. L. J. 578 : 2 I. C. 169 ; RamKhelwan Singh , (1909)
36 C. 827: 13 C. W. N. 827, distinguished in Fateh Singh, (1913) 41 e. 43.

(y) Reajuddin, (1914) 18 C. W. N. 1245 : >15 C. L. J. 725 26 1. C. 173.

(z) Bepin Behari Saha, v. Pranakul Masumdar, (1906) 11 C. W. N. 170.

(a) Sunder Buftsh Singh , (1916) 3 Pat. LTJ. 653.

THE INDIAN PENAL CODE \cHAP. VIM

The magistrate must give a definite finding as to which of the two parties was
in peaceable possession on the date of the offence and which party was trying to
protect such possession by use of force (b).

Religious procession : — In Beatty v. Citibanks (c) popularly known as the
* Salvation Army case*, the appellants marched in procession through the streets
of the Western-Supermare and they were charged as being members of an unlawful
tumultous assembly, held that the members of the Salvation Army were not an
unlawful assembly because all that they wanted to do was to conduct a religious
procession. Some years back during communal tension between the Hindus and
Mahommedans, rioting took place over the much-vexed question of 4 Music before
the Mosque/ and the leading case on the point is the decision of Turner, C. J., in
Stmiaram Chetti's case (4) where it has been held that no sect is entitled to de-
prive others forever of the right to use the public streets for processions, on the
plea of the sanctity of their place of worship, or on the plea that worship is carried
on therein day and night. The Privy Council in the case of Mansur (e) has held
that there is a right to conduct a religious procession with its appropriate observances
through a public street so that it does not interfere with the ordinary use of the
street by the public, and subject to lawful direction by the Magistrate,

Clause 5. — By means of criminal force , or show of criminal force , to com-
pel my person to do what he is not legally bound to do, or to omit to do what he is
legally entitled to do. Where the common object of the mob was by means of
criminal force or show of criminal force to deprive the cultivators of M of the use
of water of N of which they were in enjoyment or thereby to enforce their right or
supposed right to the said water and they came with that object and insisted on
demolishing the bundh, it was held that in the circumstance of the case there could
not be any right of private defence and the accused committed an offence under
this section (f).

The mere use of criminal force or show of criminal force by any person to
take possession of any property is not sufficient to bring the case within this clause
unless some criminal intent is proved against the person so using force or show
of force (g). In Addaita*s case (h) it has been held that the mere use of
criminal force or show of criminal force by any person to take possession
of any property is not sufficient to bring the case within this clause unless some
criminal intent is proved against the persons for so using force or show of force.

Cutting branches of a tree and brandishing sticks are a 4 show of force *. It
is not necessary that the force or violence should be directed against any particular
person or object (i).

Explanation : — An assembly lawful in its inception may become unlawful
by its acts. If force is used, the higher offence of rioting has been committed (j).

The mere act of one or two persons by which certain bags of rice belonging
to the complainant were thrown on the ground and were prevented from being

(b) In re. Veerappa Naick, (101C5) 40 I. C. 752 (Mad.) : 18 Cr. L. J. 752.

(c) (1882) 9 Q. B. D. 308.

(d) (1882) 0M. 203 (F.B.).

(e) Mansur Hasan V. Muhammad Zaman, (1924) 52 I. A. 61 : 47 A. 151 : 29
C. W. N. 486 (P. C.).

(f) Deputy Legal Remembrancer , Behar and Orissa V. Matukdhari Singh, (1915)
20 C. W. N. 128.

(gj Addaita Bkuia V. Kali Das Dc, (1907) 12 C. W. N. 96 (97).

(h; Ibid. * „ #

(i) Ghani Khan, (1918) 19 Ot. Isf J 628 : 46 I. C. 844 (Oudh).
ft) Khemee Singh, (1 80*) l W- R- (%0 19.

Sfec. 141 ] QF OFFENCES AGAINST THE PUBLIC TRANQUILLITY 23i

removed, does convert the assembly which was not unlawful in its orivin into
an unlawful assembly (k).

A lawful assembly may turn unlawful, all on a sudden, and without previous
concert amongst its members (1). An assembly, which was not unlawful when
it assembled, may subsequently become an unlawful assembly (m).

If a lawful assembly becomes an unlawful one, law casts a duty on the Magis-
trate to decide who was the aggressor and the originator of the riot. Repelling
unlawful attacks or a mere excess of the right of private defence do not change an
assembly from a lawful to an unlawful one (n).

Right of private defence : — If a man is entitled to protect his own life by
using a lathi, it is impossible to weigh the force of the blows which he uses for
that purpose, as it is said, ‘ in golden scales * and to adjudicate with great nicety
as to the exact amount of force which would be justified. Where certain persons,
who were lawfully in possession, as tenants of some plots of land, having reason
to apprehend that they might be attacked and ejected from the land by force,
made a practice of keeping their lathis in readiness and the expected attack came
and both parties were injured in course of the fight ; the Allahabad High Court
held that the accused were perfectly justified in going armed with lathis and also
as they, few in number, were justified in seeing that their friends and neigh-
bours were armed, so that, if necessary, they could come to their assistance, and
were protected by s. 97 of the Code (o).

Exceeding right of private defence— Liability of individual members
for individual acts : — People who were in the exercise of lawful rights cannot be
held to have been members of an unlawful assembly, nor can that assembly become
unlawful by reason of their repelling the attack made upon them by persons who
had no right to obstruct them, nor by reason of their exceeding the lawful use of
the right they had. When a man exceeds the right of private defence, he cannot
be convicted of being a member of an unlawful assembly, but can only be convicted
arid punished for the individual act which he himself has done in excess of the
right of private defence (p). When the accused, three of whom, were armed with
a sword, a garasa (scythe) and a lobanda (iron-shod stick) respectively, and the rest
with lathis went in a large body to a certain disputed land where the labourers of the
complainant s party were reaping musouri crop and attacked them and fatally
wounded one of them and severely injured another, held that the accused had
exceeded the right of private defence and so also the others who continued in the
unlawful assembly after they knew that the right of private defence had been
exceeded (q).

Violence used by some : — Where the accused were members of an unlawful
assembly, the common object of which was to propagate the temperance campaign
by pulling down toddy shops and destroying toddy trees, and in prosecution of the
common object a toddy shop was pulled down and branches of toddy trees of
considerable value were cut and destroyed, held that the accused were guilty of

(k) Dinobundo Rai, (1868) 9 W. R. (Cr.) 19.

(l) Ragho Singh , (1902) 6 C. W. N. 607.

(m) LohnathKar , (1872) 18 W. R. (Cr.) 2.

(n) In re Mukka Muthirian , (1916) 16 Cr. L. J. 743: 31 I. C. 343 (Mad ).

(o) Him, (1022) 46 A. 260 : 24 Cr. L. J. 189 : 71 I. C. C05: A. I. R. (1923)
A. 194 ; see Ahmad Din, (1926) 28 Cr. L. J. 262 : 100 I. C. 124 : A. I. R (1927) L.
194.

(p) Kunja Bhuiya, (1912) 39 C. 896, followed in Penumessa Thiruntal Rajn ,

(1917) 19 Cr. L. J. 243: 44 I. C. 40 (Mad); in re. Mukka Muthinan, (1915) 16
Cr. L. J. 743 : 31 I. C. 343 (Mad.). * *

(q) Baijnath Dhanuk, (1908) 36 C. 296.

232 the Indian penal code [chap, viii

noting and it was not necessary to show that the petitioners were the actual persons
responsible for the violence used (r).

142 . Whoever, being aware of facts which render any
_ . , , assembly an unlawful assembly, intentionally

lawful assembly. joins that assembly, or continues in it, is

said to be a member of an unlawful assembly.

This section defines being a member of an unlawful assembly. It says that
mere spectators are not members of an unlawful assembly but persons, who share
the common object and intentionally join such assembly or being innocent in the
beginning, after knowing the assembly to be an unlawful assembly continue in it,
arc said to come within the purview of this section (a).

No one who intentionally joins or continues in an unlawful assembly can be
allowed to say that he was merely a harmless spectator. He must prove that he
was there owing to no fault of his own and that he could not get out of the crowd (t).

143 . Whoever is a member of an unlawful assembly, shall
Punishment. be P. un j s bed with imprisonment of either

description for a term which may extend to
six months, or with fine, or with both.

Unlawful Assembly — s. 141. Member of an unlawful assembly — s. 142.

This section provides punishment for being a member of an unlav/ful assembly.

For commentary see note under s. 141, supra.

Scope : The essence of the offence under this section is the combination
of several persons united in the purpose of committing a criminal offence and that
purpose constitutes in itself an offence which these persons agree and intend to
commit (u).

Procedure Cognizable —Summons — Bailable — Not compoundable — Triable

by any Magistrate and may be tried summarily.

The prosecution must prove — (I) That there was an assemblage of at least
five persons.

(2) That the object of the assembly was any of the five objects mentioned
in s. 141.

(3) Thai the accused shared the common object of the assembly with at

least four other persons. If the common object fails and the substantive charge

is disbelieved, the accused should be acquitted (v).

(4) That the accused, being aware of facts which render any assembly an

unlawful assembly, (a) intentionally joined such assembly or (b) intentionally con-
tinued m such assembly.

Compounding of the offence .—Law does not allow the compounding of
an offence under this section (w).

. Finding of the magistrate must be definite : — Where the factum of posses-
sion is the determining element in a case, a magistrate must find which of the parties

lon M ** A tarimathu Naidu, (1928) 32 M. L. T~ 31 7 17 L. \^VjT 25 OrTETT.

t 3 °t ' }i‘ r^i? 23 ) WG* following Samaruddin, (1912) 40

o o# . i o tr, L» j. oJl : 17 I. C. 505.

(s) Loganathaiyar, (1910) 6 M. L. T. 17.

(t) Gendo Uraon , (1927) 6 P. 828,

(«) Matti Venkanna, (1922) 46 M. 257: 17 L. W. 451 : 24 Cr L T 114 •

71 I. C. 242 : A. I. R. (1923) Mad*692^

(v) Rahimuddi v. Asgarali, (1900) 6 C. W. N. 31.

(#) Matti Venkanna, 4$ M. ,257.

SEC. 143 J OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

233

was in peaceable possession on the date of the offence and was trying to protect
such possession and which party was trying to acquire possession by use of force (x).

Intention of the accused : — Where the accused, fifty in number, cut a ditch
through a Railway in order to let the water flow from their fields which had been
flooded, held that although the motive of the accused was to free their fields from
water, their intention was to make a ditch through the Railway and they were
guilty of mischief and unlawful assembly (y).

The Patna High Court has held that resistance implies something more than
disobedience and that a mere intention to disobey will not suffice. Resistance
connotes some overt act and the mere words, when there is no intention of carrying
them into effect, will not be sufficient to prove an intention to resist ; but where
the conduct of the mob and their refusal to disperse at the command of the police
clearly constitute overt acts and establish the common object to resist the orderr,
the accused come within the purview of the second clause of s. 141 (z).

Charge : — The charge should specify the common object of the unlawful
assembly (a). It ought to set out the alleged common object of the assembly.
An accused person is entitled to know with certainty and accuracy the exact nature
of the charge brought against him and unless he has this knowledge he must be
seriously prejudiced in his defence more specially in cases of rioting (b). In
cases of rioting the common object should be stated in the charge, but the omission
to state it, under Ss. 143 and 147 does not vitiate a conviction if there
is evidence on the record to show it, but it is otherwise with a charge under s. 149 (c).
In a case of unlawful assembly it is necessary that the charge should state the com-
mon object end the manner in which it is sought to bring the common object
within the language of the Code (d) .

Form of charge I (name and office of Magistrate , etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of , at , were a member of an

unlawful assembly, the common object of which ( here specify the common object)
and thereby committed an offence punishable under s. 143 of the Indian Penal Code,
and within my cognizance.

And I hereby direct that you be tried on the said charge.

Conviction on appeal of an altogether different offence : —Where the
accused was charged and convicted of theft and on appeal the District Magistrate
held that no theft was committed but convicted him of being a member of an un-
lawful assembly, held that the accused could not be convicted on appeal of an
offence of an entirely different character (e).

Joint trial : — Where two mobs start from different localities and operate
independently and never come close to each other, they cannot be considered to be
members of one assembly, though their object might be the same (f).

(x) In re. Verappa Natch , (1916) 40 I. C. 752 : 18 Cr. L. J. 752 (Mad.).

(y) Deputy Superintendent v. Chulhan Ahir, (1909) 16 C. W. N. 263 : 13

Cr L J. 138 : 13 I. C. 826.

(*)' Abdul Hamid, \ (1922) 2 P. 134 : 3 P. L. T. 585 : (1922) Pat. Supp. C. \V. N.
274 : 23 Cr. L. J. 625 : 68 I. C. 945. See Ramendra Chandra Roy t on behalf of Subhas
Chandra Bose t (1931) 58 C. 1303 : 35 C. W. N. 716.

(a) (1865) 4 W. K. (Cr. L.) 9 ; Basiruddi, (1894) 21 C. 827.

(b) Behari Mahton , (1884) 11 C. 106; Sabir , (1894) 22 C. 277; Paresh Nath
Sircar , (1905) 33 C. 295 (305) : 2 C. L. J. 516 (523) : 3 Cr. L. J. 153.

(c) Kudrutulla , (1912) 39 C. 781 (784).

(d) Parahushiyil Ayamad, (1923) 24 Cr. L. J. 852 : 74 I. C. 1044.

(e) Dibakar Bene , v. Saktidhar Kabiraj, (1927) 31 C.W. W. 537 where the effect
of the decision in Begu*s case (1926) 52 I. A. 191 ; 6 L. 226 : 30 C. W. W. 581 (P. C.)
was considered.

(f) Wajid AH, (1927) 28 Cr. L. J. 337.

234

THE INDIAN PENAL CODE

[CHAP. VIII

S. 106, Cr. P. Code : — S. 106 as amended having specifically mentioned
s. 143 a person convicted under s. 143, 1. P. C., cannot be bound over.

Prosecution can continue with substituted complainant 2— Even in cases
of non-cognizable offences the Code of Criminal Procedure does not intend to
confine prosecutions to the persons directly injured and the death of the complai*
nant does not put an end to prosecution and the trying Magistrate has a discretion
to allow the complainant to continue by a proper and fit complainant, if the latter
is willing (g).

Warrant of attachment-~Resistance to execution : — The fact that a
Court exceeded its jurisdiction in issuing a warrant of attachment is no defence to
the assault committed on the Court’s officer who was acting in good faith (h).

Hindu crowd threatening to carry off cows intended by Mahomedans
for sacrifice s — Where a large crowd of Hindus appeared in a village and threatened
to take away the cows of the Mahomedans which they had collected for sacrifice
on the occasion of Bakjrid , the Patna High Court held that an offence under this
section had been committed (i).

Where Mahomedan leaders came to an agreement with the Hindu leaders
that they would not sacrifice cows publicly and the Hindu leaders would not sacrifice
pigs publicly ; the Hindus apprehending sacrifice of cows assembled with deadly
weapons and a riot ensued and some Mahomedans died, held that the object of
the assembly fell within the purview of cl. (4) of s. 141 (j).

Bona fide assertion of grazing right and preventing ploughing : —

Persons cannot be said to be members of an unlawful assembly because they went
and protested against the land being ploughed up nor can they be convicted of
criminal trespass when they were asserting a right which had never been declared
against them which they bona fide believed they had (k).

Where the finding is that the accused bona fide believed that he had the right to
a tree in question, the mere fact that he went to the place of occurrence armed with
lathis with more than five persons will not ordinarily constitute an offence under
this section (1).

Cutting of paddy attached under s. 121 of the Bengal Tenancy Act

Order of distraint under s. 121 of B. T. Act made on the 2nd December 1919 for rent
payable on 1st December 1919 is not illegal. When the peon had attached crops
on the holding on the 4th December and the accused, in spite of the protest of the
peon, had cut the crops, held , he was guilty under Ss. 143 and 424 and the order of
acquittal was set aside (m).

144 . Whoever, being armed with any deadly weapon, or
with anything which, used as a weapon of
,cimhiv g a r mpH a uH offence, is likely to cause death, is a mem-
deadly weapon. ber of an unlawful assembly, shall be

punished with imprisonment of either des-

(g) Mahomed Azam , (1925) 28 Bom. L. R. 288.

(h) Durga Kumar De v. Samedar Raja Chaudhuri, (1921) 22 Cr. L. J. 343: 61
I. C. 167 (Cal.).

(i) Suba Singh, (1916) 18 Cr. L. J. 110 : 37 I. C. 318 (Pat.).

(j) Lachmi Singh, (1928) 29 Cr. L. J. 567 : 109 I. C. 503 ; Ramanandan Prosad
Singh . (1913) 17 C. W. N. 1132.

(k) Reajuddin Molla, (1914) 18 C. \V. N. 1245 : 15 Cr. L. J. 725: 26 I. C. 173.

(l) Dibakar Bene v. Sahtiahar Kabiraj, (1925) 31 C. W. N. 527.

(m) Supdt. and Remembrancer of Legal A ffairs V. Kojal Haidar, (1920) 25 C. W. N.
209 : 33 C. L. J. 24 : 22 Cr. L. J. 491 : 62 I. C. 187.

SECS. 144-145] OFFENCES AGAINST THE PUBLIC TRANQUILLITY 235

cription for a term which may extend to two yfears, or with fine,
or with both.

This section provides for enhanced punishment as it is an aggravated form
as an offence under the last section.

Scope : — This section requires that the person joining the unlawful assembly
musHbe armed with a deadly weapon (m 1 ).

Procedure t— Cognizable — Warrant — Bailable — Not Compoundable — Triable
by any Magistrate.

Charge : — I ( name and office of Magistrate , etc. ) hereby charge you (name
of the accused) as follows : —

That you, on or about the day of , at , being armed

with a deadly weapon, to wit , (or armed with something which 'used as a

weapon of offence, is likely to cause death, to wit ,) were a member of

an unlawful assembly, and thereby committed an offence punishable under s. 144
of the Indian Penal Code.

‘ Being armed with any deadly weapon ’ r— ' The question whether a parti-
cular instrument is or is not lethal depends upon the fact whether it is or is not likely
to cause death. While an ordinary stick cannot be described as a deadly weapon,
still it may by its length and weight assume that character (n). An assembly cf
twenty persons in a field, at dead of night, some of them armed with deadly
weapons, is an unlawful assembly within the meaning of this section (o).

A lathi has been held to be a deadly weapon only when it is used on the head
or on some vital part of a person (p).

Where it was proved that one person instigated another to" join an unlawful
assembly armed with a deadly weapon and afterwards joined the unlawful assembly
himself, he might be punishable under this section read with s. 114, even "though
he were not himself armed with a deadly weapon (q). In an earlier case the
Calcutta High Court has held that if one member of an unlawful assembly is armed
with a deadly weapon, the other members cannot on that account be charged under
s. 148 (r).

145. Whoever joins or continues in an unlawful assembly,
knowing that such unlawful assembly has
joining or continu- been commanded in the manner prescribed
KSn™ U u , “ l hS sc, £S by law to disperse,. shall be punished with
commanded to disperse, imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.

This section is closely connected with s. 151.

Scope } — The offence punishable under s. 143 is that of being a member of
an unlawful assembly; that under s. 144 is being such member armed with any-
thing which, used as a weapon of offence, is likely to cause death ; and that under
s. 145 is the continuing in an unlawful assembly knowing that such unlawful
assembly has been commanded in the manner prescribed by law to disperse (s).

(ml) Svihari Shome and Babar Ali V. Lai Khan, (1900) 5 C. W. N. 250.

(n) Nathu, (1897) 15 A. 19.

(o) Hari Bijall , (1915) 17 Bom. L. R. 906 : 16 Cr. L. J. 745 : 31 I. C. 345

(p) Parma Singh , (1915) 9 I. C. 586 : 12 Cr. L. J. 102 (Cal.).

(q) Svihari Shome V. Lai Khan, (1900) C. W. N. 250 (251, 252).

(r) Sabir, (1894) 22 C. 278.

(s) Tirahadu , (1890) 14 M. 126 (131, 132).

236 THE INDIAN PENAL CODE f CHAP. VIII

Procedure : — Cognizable — Warrant — Bailable — Not Compoundable —Triable
by any Magistrate. *

In order to constitute an offence under this section, it is necessary that the
prosecution should establish : —

1. That there was an assemblage of at least five persons.

2. That the object of the meeting was any of the five objects mention^} in

s. 141.

3. That the accused shared the object with at least four others tit the

meeting.

4. That the accused intentionally joined the meeting —

(a) having knowledge of the meeting, or

(b) he continued therein after having had that knowledge.

5. That such unlawful assembly had been commanded to disperse.

6. That such command to disperse was in the manner prescribed by law.

7. That accused joined or continued in such unlawful assembly after it had

been commanded to disperse.

8. That he did so knowing that it had been commanded to disperse (t).

Charge : — I ( name and office oj Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at , joined (or

continued in) an unlawful assembly, knowing that such assembly had been com-
manded in the manner prescribed by law to disperse, and thereby committed an
offence punishable under s. 145 cf the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Prabhat Pheri Case : — Where the Magistrate promulgated a notification
under s. 42, Bombay District Police Act, and prohibited in the municipal area of
Hanovar for a period of 14 days from the date of the notification the public utter-
ances of cries, singing of songs, playing of music e^c., which might inflame hostility
between different classes or incite to the commission of an offence, to any disturb-
ances of the public peace, or to resistance to or contempt cf the law or of a lawful
authority, the object of the order, which was published by beat of drums and by
affixing copies of the notification at important places in the town, being to stop
certain volunteers of the Indian National Congress from forming processions, singing
songs and uttering slogans, the accused Congress volunteers declared their inten-
tion to defy it by forming a procession of Probhat Pheries the next day and as a
matter of fact they started a procession, shouted political slogans and sang seditious
songs, held , that the common object of the offence having been to commit an offence
under the latter part of s. 188, the assembly became unlawful and remain-
ing in it after it was ordered to disperse constituted an offence under s. 145 (u). The
Bombay High Court in Ganesh Vasudeo Mavlanker s case (v) while considering a
similar notification under s. 144, Cr. P. Code, held that the order of such a general
description was vague and invalid as regards persons other than those expressly
mentioned in the order. Rankin, C. J., in Lachmi Devi's case (w) in deciding about
Probhat . Pheri case held that s. 62-A, Cr. (4) of the Calcutta Police Act, gives no
power to the Commissioner of Police to prohibit all public processions and
assemblies. It is submitted that the view taken by Mirza, J., in Ram Chandra's
case (u) cannot be supported.

(t) Per Moti Sagar, J., in Giridhara Singh, (1921) 3 L. L.J. 529: P. L. R.
No. 21 of 1922 : 23 Cr. L. J. 5 : 64 I. C. 373 : A. I. R. (1923) Lah. 135.

(u) Ramchandra Narayan Sastri, (1931) 65 B. 725: 33 Bom. L. R. 1169:
A. I. R. (1931) Bora. 520.

(v) (1930) 55 B. 263 : 33 Bom. L. R. 59.

SECS. 146-147 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY 237

146 . Whenever force or violence is used by an unlawful

Rioting assembly, or by any member thereof, in

prosecution of the common object of such
assembly, every member of such assembly is guilty of the offence
of rioting.

/ Force — s. 349. Unlawful assembly — s. 141.

Analogous law -The following Statutory provisions are in force as to

riots

1. The Riot Act, (1714) 1 Geo., I St. 2, c. 5.

2. 7 Will IV and 1 Viet., c. 91 recites S$. I and 5 of the Riot Act.

3. The Shipping and Offences Act, 1793 (33 Geo. Ill, c. 67).

4. The Malicious Damage Act, 1881 (24 and 25 Viet., c. 97).

5. Riot Damages Act, (49 and 50 Viet., c. 36).

Under the English law there are five necessary elements of a riot : —

1 . A number of persons, three at least ;

2. Common purpose;

3. Execution or conception of the common purpose ;

4. An intent to help one another by force if necessary against any person

who may oppose them in the execution of their common purpose ;

5. Force or violence used in the execution cf the common purpose, not

merely used in demolishing, but displayed in such a manner as to
alarm at least one person of reasonable firmness and courage.

Unless all these elements are present, the offence of riot is not committed (x).

Violence— -cannot mean violence against inanimate objects. It could
hardly be said that if an unlawful assembly came together for the purpose, say,
of pulling down a man's house and they proceeded to carry out the object, they
could not be said to have used violence (y).

147. Whoever is guilty of rioting, shall be punished with

Punishment for riot- imprisonment of either description for a
,ng ‘ term which may extend to two years, or

with fine, or with both.

This section provides a punishment for the offence of 1 rioting ’ as defined in

s. 146.

Procedure : — Cognizable — Warrant — Bailable— Not Compoundable— Triable
by any Magistrate.

Summary trial t— A summary trial on a charge under this section is illegal,
even though the conviction is based only under s. 323 (z).

Charge : — The charge must set out the common object of the unlawful
assembly (a). But omission to specify the common object in the charge has been
held to be a mere irregularity which does not vitiate the conviction unless the

(xT~ Russel, 8th Ed., Vol. I, p 414

(y) Samaruddi , (1912) 40 C. 367, followed in Venkalasubbair, (1922) 44 M. L. J.
*07: 32 M. L. T. 190 : 23 Cr. L. J. 360 : A. I. R. (1923) Mad. 603.

GasanuSadu, (1928) 30 Bom. L. R. 371.

Basiraddi, (1894) 21 C. 827,

238

THE INDIAN PENAL CODE

[CHAP. VIII

omission had prejudiced the accused (b). Omission does not vitiate conviction if
there is evidence on the record to show the common object (c). * Omission in the
charge to specify the property in respect of which the occurrence is alleged to have
taken place has been held to have prejudiced the accused (d).

It is not necessary to set out the allegation that there were five dr more persons
actuated by a common object. ' Rioting * is an offence with a specific name and it
is sufficient to describe the offence by that name and that name only. S. 221 cl. (2)
was enacted to meet a case of this kind (e). It is doubtful if the view of Cuijiming,
J., (e) or the view in Channukfl Dhanuk (0 which held that when the ocffnmon
object is to do violence to some person, it is quite sufficient to state in the charge
that the common object was to ‘ assault 1 the persons to whom hurt was caused
and it is not necessary to state that the common object was to cause grievous hurt,
can be supported. The principal and the prominent common object should form
the subject of the charge under this section and not the incidental happennings (g).

If the common object stated in the charge fails, the accused should be acquitted,
and that it is not proper for an Appellate Court, while disbelieving the common
object of an unlawful assembly, to find out a different common object regarding which
the accused were never called upon to plead nor tried, and affirm the convic-
tion (h). Where a charge as drawn up by a Magistrate alleges several alternative
common objects of the unlawful assembly and the Magistrate omits to specify any
common object as proved, the Appellate Court on that ground alone cannot reverse
the conviction for it is to see if the conviction is not sustainable by proof of any
of the common object stated (i). Before a conviction can properly be maintained
for the offence of rioting, it is necessary that there should be a clear finding as to the
common object of the unlawful assembly, and also that the common object so
found should have been stated in the charge , in order that the accused person might
have an opportunity of meeting it, and when the Sessions Judge in his charge to the
Jury stated two possible common objects and of which one only was set out in the
charge, the accused have been held to be prejudiced (j). When an accused is
charged under Ss. 147 and 323-34 of the Code but is convicted of the former and
acquitted of the latter offence, the Appellate Court has power to acquit him of riot-
ing, and convict him of hurt (k).

Joinder of charges : — A single trial and charge may comprehend many
diverse acts committed over a considerable space of time if there be ground to
believe that they were the result of a common object (I).

Trial of cross-cases of rioting Where two opposing factions having
different common objects were charged under this section and tried jointly, it
was held that a fight between the two parties could not be held to be one transaction.
And where the Sessions Judge who heard the evidence in the first case, heard the
evidence in the second case, examined some of the accused in the one case as wit-

(b) Pareshnath Sircar , (1905) 33 C. 295; Bapu Hasamali , (1928) 30 Bom. L. R.

653.

(c) Kudrutulla, (1912) 39 C. 781, see Badhu v. Mst . Lachmania , (1904) 9 C. W. N.

599.

(d) . Pareshnath Sircar , (1905) 33 C. 295 (304) ; Akbar Molla, (1923) 51 C. 271:
38 C. L. J. 379: A. I. R. (1924) C. 449.

(e) Ramchandra Roy,(l927) 55 C. 879 : A.I.R. (1928) C. 732.

(f) (1927) 6. P. 832.

(g) Aklu Mian , (1929) 29 Cr, L. J. 390: A. I. R. (1928) P. 406.

(h) Pareshnath Sircar, (1905) 33 C. 295; Sita Ahir, (1912) 40 C. 168; see
Amirulla (1922) 26 C. W. N. 536.

(i) Maniruddi, (1908) 35 C. 718; Harinder Singh , (1917) 2 P. L. J. 641: 18
Cr. L.J.911.

(j) Sabir t (1894) 22 C. 276; Pareshnath Sircar, (1905) 33 C. 295.

(k) Kunja Bhuiya, (1912) 39 C. 896.

(l) Nachiappa Udayan alias Venga Udayan, (1927) 50 M. 84.

SEC. 147 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

239

nesses for the prosecution in the other and vice versa and subsequently heard the
arguments in both the cases together, and the opinions of the assessors were taken
at one tim* and both the cases were dealt with in one judgment, held that the mode
of trial although irregular , did not prejudice the accused in their defence, and
that under the circumstances a retrial was not directed by reason of such irregu-
larity. (I 1 ).

Where two counter cases were made over to two different Magistrates for
trial and in the case lodged first in point of time, all the prosecution witnesses were
examined and charge was framed and in the latter case one witness was examined,
held, simultaneous trial was undesirable and the latter case was stayed (m). Where
two cross-cases of rioting were instituted, one upon a police report and the other upon
a complaint, the accused in the one being the complainant in the other, the Magis-
trate directed the trial of the police case first , and then of the complainant’s case
but the District Magistrate set aside the order and directed both the cases to be
tried simultaneously, the Calcutta High Court held that the District Magistrate
had no jurisdiction to set aside the order, he ought to have referred under s. 438,
Cr. P. Code, the case to the High Court and on the merits that the two cases should
be tried simultaneously and contemporaneously, but should be dealt with wholly
separate from each other, each on its own merits and upon the facts and circum-
stances appearing therein ; judgments in the two cases being pronounced if possible,
after both the trials are over (n).

The Privy Council pointed out in Madat Khans case (o) that in trials of cross-
cases, although technically it might have been better to keep the evidence in the
two cases entirely distinct and to haw. delivered two separate judgments, no in-
justice had followed from the fact that the High Court gave one judgment but treated
the cases as two cases, which had been separately tried. In Krishna Pannadis
case (p) Jackson, J., observed that there is no clear law as regards the procedure
in counter-cases, a defect which the Legislature ought to remedy.

Appeals— 'Counter**ca8es s— The duty of an Appellate Court in trying two
counter-cases in each of which the accused were convicted is to keep each appeal
absolutely separate and decide upon evidence given in the case and that alone (q).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge you
(name of the accused ) as follows

That you, on or about the day of , at — , were a

member of an unlawful assembly and in prosecution of the common object of such

assembly, to wit , committed the offence of rioting, punishable under

s. 147 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Alteration of charge : — The Madras High Court has held that a charge
under this section and s. 323 cannot be altered into one under s. 160 without a
proper charge being framed and the accused tried thereunder (r).

(li) Chandra Bhuiya (1892) 20 C. 537, followed in Shukhai Ahir, (1927) 50 A.
457 28 A. L J. 176.

(m) Judhisthir Gope v. Sheikh Samir, ( 1 922) 27 C. W. N. 700; Bechu Mollah
v. Sio Ram Singh, (1886) 14 C. 358; Goribullah Akonda v. Sader Akanda, ( 1923),
39 C. L. J. 331 ; Makhan Mapa v. Manindra Nath Bose, (1925) 42 C. L. J. 83.

(n) Per Mukerji, J., in Sheikh Bahatar v. Nobadali , (1924) 28 C. W. N. 487
where Bechu Molla v. Sio Ram Singh, (1886) 14 C. 358 and Judhisthir Gope v.
Sheikh Samir, (1922) 27 C. W. N. 700 distinguished and Chandra Bhuiya, (1893)
20 C. 537 referred to.

(o) 8 L. 193. (P. C.).

(p) (1929) M. W. N. 883.

(q) boat AH, (1927) 47 C. L. J. 211. „ „ f xr

fcrt Mahan kali Srir amain, (1922) 47 M. 01 : 40 M. L. J. 120 : (1923) M. W. N.

814 : 18 L. W. 741 : A. I. R. (1924) (Mad.) 375.

240

THE INDIAN PENAL CODE

[CHAP, VIII

Separate sentences See commentary under s. 71, supra. Separate
sentences can be passed under Ss. 140 and 323 (s). A member of an unlawful
assembly, some members of which have caused grievous hurt, cannot lawfully be
convicted for the offence of rioting as well as for the offence of causing grievous
hurt (t). A Full Bench of the Calcutta High Court has held that separate sentences
under Ss. 148 and 324 — 149 are illegal but this view is confined only to cases
in which it is not possible to identify the actual assailants, i.e., where they
are constructively guilty under s. 149 (u). Separate sentences under Ss. 147
and 325 are however legal where there is no charge under s. 149 (v).
Nilmony Poddars case (w) has, however, been followed by the Patna High Court
in Bajo Singh's case (x). The view taken by the Bombay High Court in
Piru Rama's case (y), where it has distinguished Keamuddi Karikars case (z)
as being decided before the amendment of s. 35, Cr. P. Code, seems
to be erroneous, as Suhrawardy, J., has followed Keamuddi' s case (z) in Basiruddi's
case (a). The Madras High Court however in Anthoniuddyan v. Rayapuddyar (b)
has held that separate sentences for causing hurt and rioting are legal. That deci-
sion can be supported in the view that on the facts of that case s. 71 had not
been contravened. Sulaiman, J., sitting singly has held in Chidda's case (c) that
separate sentences under Ss. 147, 323 and 149, are legal. That decision,
it may be pointed out, is contrary to the Full Bench decision in Nilmony Poddars
case (w).

On a charge of rioting with the common object of committing an offence
under s. 353, it has been held that separate sentences were legal where it was found
that persons who committed several acts of assault should be punished both for
rioting as also for the offence under s. 353, although the Calcutta High Court has
held in several rulings that separate sentences should not be passed upon people
convicted of rioting for the offence (s. 353) which is specifically stated to have been
the common object of the assembly (d). Separate sentences under Ss. 147 and
447 are illegal, where the common object of the riot and the intention in
criminal trespass is substantially the same (e). It is improper to pass separate
sentences both for rioting and theft when the former offence is but an element
of the latter (f). The Patna High Court in Prayag Gope's case (g) held the same
view. Separate sentences passed for s. 147 and grievous hurt are illegal where
the unlawful assembly was converted into a riot by the acts which are the basis of the
conviction under s. 325 (h). Separate sentences under Ss. 325 and 147,

(s) Ram Adhin, (1879) 2 A. 139.

(t) Ram Partab, (1883) 6 A. 121, dissenting from Dungar Singh, (1884) 7 A. 29.

(u) Nilmony Poddar 9 (1889) 16 C. 442 (F. B.) ; Nemdkari Singh , 2 Pat. L. J.
91 : 22 Cr. L. J. 449 : 61 I. C. 833 ; Keamuddi Karihdr , (1923) 61 C. 79 : 28 C. W. N.
347; Mangal Singh, (1915) P. K. No. 31 of (1916) : 18 Cr. L. J. 372 : 38 3. C. 756;
Amiruddi, (1923) 40 C. L. J. 483 ; in re. Kunnamal Mavan , (1927) 63 M. L. J. 656.
following Bishna, (1922) 71 I. C. 517 ; Bajo Singh, (1928) 8. P. 274 ; Ketabdi Sheikh,
35 C. W. N. 184 ; Harendra Nath Butman, 35 C. W. N. 345.

(v) Mohar Mir, (1889) !0 C. 725; Ferasat, (1891) 19 C. 105; Ram Augutha
Singh, (1913) 40 C. 611.

(w) 10 C. 442 (F. B).

(x) (1928) 8 P. 274.

(y) 49 B. 916.

(z) 51 C. 79.

(a) 31 C. W. N. 5 32.

(b) (1927) M. W. N. 851 : 53 M. L. J. 653.

(c) (1925) 24 A. L. J. 178.

(d) Prohash Chandra Kundu, (1914) 41 C. 836: 18 C. W. N.918; see Contra
Ramdial, (1898) 3 C. W. N. 174.

(e) Bkup Sing , (1903) 8 C. W. N. 305.

(f) Mithoo Singh, (1899) 3 C. W. N. 761.
v; (g) (1924) 3 P. 1016.

(h) Bishna, (1922) 24 Cr. L. J. 629: 73 I. C. 517: A. I. R. (1922) Lah, 405
Contra Katwara Jiai, (1917) 39 A. 623 : 15 A. L. J. 594.

SEC. 147] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

241

are hot illegal but the sentences ought not to be heavier than are justifiable in the
circumstances of the case (i).

Where a prisoner is convicted of rioting and of hurt, and the conviction for
hurt depends on the application of s. 149, the Bombay High Court by a Full Bench
has held that it is not illegal to pass two sentences, one for riot and the other for hurt
provided the total punishment does not exceed the maximum sentences which can
be passed by the Court (j). The Bombay High Court in Piru Rama's case (j 1 ) held
that the amendment of s. 35, Cr. P. Code has restored this view and overruled the
view taken in Malus case (k).

Separate sentences may be passed under s. 147 and any other section which
becomes applicable to the accused with reference to the terms of s. 149 (1).

The Lahore High Court has held that separate sentences under Ss. 147, 342
and 504 are illegal when the offence committed by. the accused was. only
one offence in carrying out the order of the Panchayat directing the complainant
to pay a penalty for having enticed away a married woman (m). ?

The Calcutta High Court in Kanchan Molla's case (n), which is a case under
Ss. 457 and 380, considered the effect of amendment of s. 35, Cr. P. Code and
correctly pointed out that s. 35 has to be read subject to the provisions of s. 71,
I. P. C. but the obiter of Newbould, J., is to the effect that the old case-law has
been overruled. The learned Judges in FatiaT Bap's case (o) simply followed this
obiter and observed that the view taken in RamdhiaVs case (p) followed in Alim
Shaikh's case (q) was wrong and that separate sentences could be passed under
s. 147 and Ss. 323, 324 and 325. It seems Fatter Bap's case (o) has been wrongly
decided as it contravenes the provisions of s. 71.

Jury Trial— Misdirection Where the common object alleged in the
charge as framed was to take forcible possession of the complainants land and
hut and to assault him and others named, and the prosecution and the defence
each asserted exclusive possession and an attack by the opposite party, held that
it is not a misdirection on the part of the Judge to tell the jury a third alternative,
an intermediate state of facts, viz., that the complainant s party went to turn the
accused party out of possession, was resisted and driven back, and that the accused
then followed the complainant's party and assaulted them. Held further that the
omission to point out to the jury specifically the exact evidence bearing against
each accused is not a misdirection when the Judge had put before the jury the
entire evidence (r). Where a Judge in his charge to the jury referred to two possible
common objects of an unlawful assembly, one of which only had been set out m
the charge and which the accused had no opportunity of meeting, the conviction
was set aside and re-trial directed (s). Although the common object of the unlawful
assembly is stated in the charge, the Sessions Judge ought, in commenting upon the
provisions of s. 149, to draw the attention of the jury expressly to the common
object (t). Where title to land was not considered in the summing up, held , this
was a material misdirection which occasioned a failure of justice (u).

(i) Ramnath Rai t (1921) 2 Pat. L. T. 540 : 22 Cr. L. J. 460 : 61 I. C. 844.

(j) Sana Pun j a, (m2) 17 B. 260 (F. B).

(jl) 49 B. 916 ; 27 Bom. L. R. 1371.

(k) 23 B. 706 (F. B.)

(l) Mahpal Sing, (1914) 6 Cr. L. J. 625 25 I. C. 623. . t A1

(m) Karam Singh , (1922) 23 Cr. L. J. 457 : 67 I. C. 729 : A. I. R. (1923) Lah. 91.

(n) 41 C. L. J. 563.

(o) 31 C. W. N. 691.

(p) (1898) 3C. W. N. 174.

(q) 8C.W..N. 483.

Samaruddi , (1912) 40 C. 367, followed in Nathnni Mat
Sri Prasad , 4 C. W. N. 193; Sabir , (1894) 22 C. 276

i Mania, (1927 6 l\ •■>72.

(t) Manga n Das, (1002) 29 <’■ 379.

(u) Aked Fakir, (1024) 43 C. L. J. 245.

22

242

THE INDIAN PENAL CODE

[CHAP. VIII

Right of Private Defence r—If there is evidence on either side as «b the
exercise of the right of private defence then the Judge must put the case of private
defence to the jury. The accused may plead that they were not at the place of
occurrence and at the same time plead that they acted in self-defence (v). The
omission to place carefully before the jury the law as to the right of private defence
of the person as bearing on the facts set up, and to direct their attentions to the
point, whether and how far the accused was justified in attacking the deceased,
in order to prevent injury to himself, was held to be a serious misdirection vitiating
the trial (w). When the accused takes the plea of private defence, it is a serious defect
if the charge merely mentions this argument on behalf of the defence and some
case-law without deciding the guilt or innocence of the accused if they find facts
giving rise to the right of private defence (x).

The prosecution must prove the charge In addition to the points noted
under s. 143, the prosecution must establish —

That the force or violence was used by such unlawful assembly or by any
member dtereof in prosecution of the common object of such assembly.

In practice the prosecution need establish —

(1) That there was an assemblage of at least five persons.

In the absence of a finding that five or more people took part in the occurrence,
conviction for rioting is illegal (y), but conviction is right where out of 9 persons
sent up for trial, evidence of identification was sufficient against four only (z).

(2) That the common object of such assembly falls under any of the five
clauses of s. 141.

^3) That the accused shared the common object with at least four other
members.

A person intentionally joining an unlawful assembly must prove his
innocence (a).

(4) That the force or violence was used by the accused in prosecution of
the common object.

Even where the accused, upnon the finding of the Appellate Court, were tres- -
passers on the land, occupying it inspite of having been formally evicted in due
course of law, the High Court held that they had the right of private defence when
an attack of a most unlawful kind was made, and it gave them cause to fear grievous
hurt to themselves and destruction of their property had occurred (b).

For the defence to succeed

(1) If the plea is ‘ Right of private defence * the onus is on the defence to
establish such plea (see s. 105 of the Indian Evidence Agt). .

(2) If there is a defect in the charge, take that plea, and show that the accused
has been prejudiced by the charge (c).

(3) If the common object as stated in the charge has hot been made out,

the defence should press for an acquittal (d). > *

(v) Ajgar Sheikh. (1928) 32 C. W. N. 839 : 48 C. L. J. '138.

(w) Aseruddin, (1920) 53 C. 980.

(x) Jabanullah, (1929) 34 C. W. N. 365.

(y) In re. Ramasami, 30 M. L. J. 18 : 14 L. W. 588 (1) : 69 I. C. 380 In re.
Sinnaswami Muduli, 16 L. W. 526 : A. I. R. (1923) M. 94.

(z) Ramsary Ahir, (1928) 7 P. 848 : A. I. R. (1928) P. 454.

(a) Gendo Uraon, (1927) 6 P. 828:* A. I. R. 11928) P. 115.

(b) Banga Hadua, (1909) 11 C. L. J. 270.

(c) Pareshnath Sircar. (1906) 33 C. 295. but see Harinder Singh, 2 Pat. L. J.
541 : 18Cr.L.J. 911:43 1. C143.

(d) Ibid. p. 304 ; Sita Ahir, (1912) 40 C. 168.

243

SEC. 147] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

■f-

* (4) If the accused has exceeded the. right of private defence, contend that
there can be no conviction for rioting but individual members will be liable under
the specific sections of the Code for the offence committed by them (e).

(5) That the defence must make out that the property in dispute was in the
possession of the accused — that the accused grew crops, etc.

(6) That the accused was not enforcing a right or supposed right but main-
taining undisturbed the actual enjoyment of a right (e 1 ).

(7) Defence should contend that the alleged common object must be established
on evidence and not merely inferred (e 3 ).

Conviction is but where the common object found is different from that stated
in the charge (e 3 )* bad the prosecution may contend before the Appellate Court
that the variance in the common object set out in the charge and that found by
the Magistrate was not such as to invalidate the conviction (f).

The defence might contend that the accused has been prejudiced when there
is no finding of the common object in the judgment (g). But if the evidence
proves the common object, omission to state it in the charge is immaterial (h).

The Magistrate should discuss the evidence as against each accused separately (i).

Where the Magistrate acquitted the accused on a charge of rioting with the
common object of taking possession of the complainant’s land and assaulting his
durwans without coming to a finding on the question of possession, held , that the
judgment was not satisfactory and the acquittal was set aside and re-trial ordered (j).

Judgment of an Appellate Court : — Where a charge as drawn up by the
Magistrate alleges different common objects of the unlawful assembly, it is the duty
of the Appellate Court to determine whether the charge is sustainable and if so
which of the common objects stated in the charge had been made out (k). On a
charge under s. 143, the judgment of the Appellate Court should contain as one of
the points for determination of a statement as to the existence of elements con-
stituting the unlawful assembly and the decision therein bearing in mind the pro-
visions of s. 141,(1). Where certain persons were convicted of rioting and the
Judge who heard the appeal did not state the facts or the reasons for his decision,
held, that the judgment was not in accordance with law and the deficiency in the
judgment of the Appellate Court cannot be made up for by having recourse to the
judgment of the trying Magistrate (m). A judgment of an Appellate Court
affirming a conviction by the lower Court need not restate or state .in different
words the evidence or the conclusions at which the Court of first instance has

(e) Kunja Bhuiya, (1912) 39 C. 896.

(ei) Silajit Mahto , (1909) 36 C. 865: 13 C. W. N. 853: 2 I. C. 169.

Jaiubor Singh, (1919) 20 Cr. L. J. 670 : 52 I. C. 494 (Pat.).

/e3) Silajit Mahto, (1909) 36 C. 865: 13 C. W. N. 853 : 9 C. L. J. 578 : 2 I. C.

169; Ritbar Singh, (1917)4 Pat. L. W. 120: 19 Cr. L. J. 780 : 46 I. C. 709,

A minulla, (1922) 26 C.W.N. 536 : 35 C.L.J. 353: 24 Cr. L.J. 355 : 72 I. C. 355: A.I.R.
(1922) Cal. W.

(f) Babbott Sheikh, (1910) 14 C. W. N. 422.

(g) Dasarathi jMahapatra , v. Raghu Sahu , (1908) 12 C. W. N. 944: 8 C. L. J.

69. *

(1\) Harinder Singh, 2 Pat. L. J. 541 : 18 Cr. L. 921 : 42 I. C. 143.

(1) Jamait Mullick . (1907) 35 C. 138; In re. Ramaswami Naidu, 16 Cr. L.J.

809:31 1. C. 825; Jatra Mohan Basak v. Akhil Chandra Bysak , (1911) 12
Cr. L. J. 43 (Cal.). ~ ■

(j) Surendra Nath Singkfy v. Janaki^ath Ghosh , (1925) 53 C. 471 : A. I. R,

(1 926) 0. 945.

(k) Maniruddi, (1908) 35 C. 7 18.

(l) Ramlal Singh, (1909) 37 C. 194.

(m) Bholanath Mullick, (1902) 7 C. W. N. 30.

244

THE INDIAN PENAL CODE

[CHAP. VIII

arrived, but it must contain sufficient materials to enable the High Court in
revision to come to a decision upon the points arising in the case (n).

Reference. — If the common object alleged in the charge as framed to support
a case under s. 147 has not been sustained, the High Court on a reference under
s. 307 Cr. P. Code cannot invent another common object to support a conviction (o).

Conviction under another section : — A conviction under s. 325 based on
suspicion when the Appellate Court had disbelieved the evidence as to the existence
of the riot is illegal (p). Where the accused, who were charged under s. 147 with
the common object of forcibly taking possession of the complainants land and
of assaulting him and others, were convicted of criminal trespass, held, that in
the absence of a charge under s. 447, the conviction was illegal, although
without such a charge the conviction would have been valid, had the common
object constituting unlawful assembly been to commit criminal trespass (q). To
convict a person of rioting with a view to attacking the police and obstructing
them in the discharge of their duties and also to convict him of the substantive
offence under s. 353 is illegal. The Lahore High Court set aside the conviction
under this section and s. 225 but upheld the conviction under s. 353 (r). Where
the accused were charged under Ss. 1 47 and 323 and the common object set
out in the charge under s. 147 did not specify intention to cause hurt and the
common object failed, they were acquitted (s), but where persons were originally
charged under Ss. 147 and 353 and the evidence did not disclose which
of the accused actually struck the constable and at whose hands he received the
injuries, held, they could be convicted under s. 149, on appeal, although they were
not charged under s. 149 (t). Where the Appellate Court acquitted the accused
on the ground of an omission or error in the statement of the common object as set
out in the charge but convicted the accused under another section for which no
charge was drawn up, held, that the accused should be retried (u). Where accused
were charged under s. 147 and were convicted under s. 323 and the common
object set out in the charge under s. 147 did not specify intention to cause hurt,
held, that they should be acquitted (v). In the absence of a charge under s. 323

framed during the trial, a conviction under s. 147 cannot be altered

in appeal to one under s. 323 (w). Where charges under Ss. 147 and 323
were altered into one under s. 160, the Madras High Court held that the accused
could not be tried under s. 160 without a proper charge being framed (x). Although
after the Privy Council decision in Begtis case (y) which has held that a man may
be convicted of an offence even if there has been no charge in respect of it, if the
evidence is such as to establish a charge that might have been made, it might
seem that the cases previously discussed under this caption have been modified.

(n) Arindra Rajbanshi , (1916) 20 C. W. N. 1296 : 18 Cr. L. J. 294.

(o) Akbar Molla, (1923) 61 C. 271 : 38 C. L. J. 379: A, L R- (1924) <\ 449,

following Panchkaxtri, (1897) 24 C. 086; Pareshnath Sarkar, (1905) 33 C. 295; Fateh
Singh, (1913) 41 C. 43.

(p) Sheobans Sing, 15 A. L. J. 850: 19 Cr, J.. J. 37 : 42 I. C 997.

(q) Ariff Munshi, (1913) 18 C. W. N. 992 : 15 Cr. L. J. 188 ; 22 I. C. 704.

(r) Kollu, 4 L. L. J. 448 : 23 Cr. L. J. 449 : 07 I. C. 721 : A. I. R. (1922) L. 31.

(s) Sita A hit, (1913) 40 C. 168 : 13 Cr. L. J. 593 : 10 I. C. 161. 4

(t) Chidda, (1925) 24 A. L. J. 178: A. I. R. (1920) A. 2 25.

(u) Harmanin Sardar , (1913) 18 C. W. N. 1274 : 10 Cr. L. j; 42 : 20 I. C\ 634.

(v) Lai Mohan v. Kali Krishore, 38 C. 293 : 13 C. L. f; 329 : 12 Cr L T 169 •

9 1. C. 965. ’ *'

(w) Ramasray Ahir, (1928) 7 P. 484: A. 1. R. (1928) P. 454 ; sec Malln Gohe

(1929) 9. P. 642 ; see Genu Manjhi, (1914) 18 C. W y N. 1276: 15 Cr. L. 1 704 : 25
1. C. 152 and Lethu lhakur, (1902) 30 C. 288 followed in Rakhal Chandra Biswas
(1924) 30 C. W. N. 528. * *

(x) Mahankali Sri Ramalu, (1923) 47 M. 61 : 46 M. L. T. 120 * 18 L W 741 ■

(1923) M. \V. N. 814 : A. I. R. (1924) Mad. 375. *

(y) (1925) 52 I. A. 191 : 6 L. 220 : 30 C. W. N\ 581 : 41 C. L. J. 437 : (1925)

M. W. N.418. J V 1

SEC. 147 ] OF Ol-FENCES AGAINST THE PUBLIC TRANQUILLITY

245

But on a little scrutiny, it would seem that Begus case proceeds upon a construction
of Ss. 236 and 237 Cr. P. Code and it has been rightly distinguished by Suhrwardy,
J. f in Dibaker Benes case (z) where a person was charged and convicted of theft
but the Appellate Court altered the conviction to one of being a member of an
unlawful assembly and it was held that the accused could not be convicted on
appeal of an offence of an entirely different character.

The true test as to whether an accused person charged under one section
can be convicted under another section is whether he had notice of the offence of
which he is going to be convicted so that he is not prejudiced. Begus case (y)
encouraged no rule to the contrary (a).

In prosecution of the common object .'--Where the common object fails, the
conviction cannot stand (b). Where on an old man being attacked by the deceased,
several persons came to his rescue and some of the rescuers assaulted the deceased
and as a result of the injuries inflicted, the deceased died, held , there could be no
charge or conviction for rioting as there was no common object to assault the
deceased and no unlawful assembly (c). If the common object of the assembly
was a perfectly legal one the accused could not be convicted of being a member of
an unlawful assembly (d). Where the alleged common object fails, the accused
cannot be convicted under s. 147 or s. 325 or under Ss. 326 read with s. 34
or s. 149 (e). In the absence of a finding in the judgment as to the existence
of an unlawful assembly with the common object stated, conviction under this
section cannot be maintained (f). When the Court found that the common object
of an unlawful assembly was to commit theft but did not find as to which of the
persons composing the unlawful assembly removed the stolen property, held , that
it was illegal to convict and sentence them both under Ss. 147 and 379 (g).

Where an attachment warrant was not signed by the Judge but by the
Sheristeder and did not bear the seal of the Court, the Patna High Court held that
the attachment was bad for non-compliance with Or. 21 r. (2) C. P. C., and that
the resistance or rescuing of property sought to be attached was illegal and as such
the accused could not be convicted under this section (h). The Calcutta High
Court in the case of Suptd. and Remembrancer of Legal Affairs V. Darbesh Ali
(i) has upheld the conviction of the petitioner under Ss. 147 and 225 where
the point taken was that the arrest was illegal because of the non-compliance of
the provisions of s. 80 Cr. P. Code and it was pointed out therein that a police-
officer who Has made an arrest without having observed the provisions of s. 80
Cr. P. Code, may be able to justify his action under the provisions of s. 46(2)
Cr. P. Code. Hence this decision is no authority for the proposition that in no
circumstances can a peon executing a warrant of arrest be assaulted without the
accused being a member of an unlawful assembly. Resistance to a search
where there was no search warrant has been held not to amount to rioting (j).

(z) (1927) 31 C. W. N. 527, following Jatu Singh v. Mahabir Singh , (1900) 27 C.

660, Yakub Ali v. Lethu Thahur, (1902) 31 C. 2S8 and accepting as correct I.ala
Ojha’s case , (1899) 26 C. 863.

(a) Meher Sheikh , (1931) 59 C. 8 : 35 C. W. N. 945.

(b) Parameshwar Singh , (1899) 4 C. W. N. 346.

(c) Ambika Singh, (1921) 1 P. 212 : 77 1. C. 607 : A. I. R. (1922) P. 498.

(d) Umacharan Singh , (1901) 29 C. 244.

(e) Ritbaran Singh, (1917) 4 Pat. L. W. 120 : 19 Cr. L. J. 789: 46 I. C. 709.

(f) Mahesh Datta Singh, (1919) 21 Cr. L. J. 165: 54 I. C. 773.

(g) Chandra Mohan Singh , (1919) 1 Pat. L. J. 623: 21 Cr. L. J. 480 : 56 I. C.

612.

(h) Khadir Bux, 3 Pat. L. J. 636 : 20 Cr. L. J. 139 : 49 I. C. 171.

(i) (1928) 33 C. W. N. 284.

(j) Bajranji Gope, (1910) 38 C. 304.

246

THE INDIAN PENAL CODE

[ CHAP. VIII

Where a warrant was issued for the arrest of K but wrongly issued and the accused
rescued the arrested person from the custody of the head-constable and other
constables and inflicted certain injuries on the head-constable, held , that the
accused were guilty under this section (k).

A finding as to the common object of an unlawful assembly is necessary to
convict persons under this section (1). Where the common object of an unlawful
assembly was to remove paddy reaped and stacked by another, held , the Court
should record a finding as to who had raised the crop (m).

Where the common object set out in the charge was to save a bundh from
destruction while the order under s. 144 Cr. P. Code was being carried out, held,
that the persons were not members of an unlawful assembly and therefore could
not be convicted of rioting (n), but where the common object of an unlawful
assembly was to assault the passers-by, held, the conviction was right when such
common object had been proved (o). Where the common object of an assembly
was to dismantle a kutchery ghar and there was no beating, held, that the accused
were guilty of rioting (p).

Proof of the common object : — The common object must be judged from a
consideration of all the facts (q).

Where the accused were charged with rioting with the common object of caus-
ing obstruction to measurement and demarcation of khasmehal land by a Kanungo,
held, that the prosecution having failed to prove that the land on which the alleged
riot took place was in the actual possession of the Government, the charge was
not proved and accused were not guilty of rioting with the common object stated
in the charge (r).

Where some persons went to take away by force an animal from the possession
of a person to enforce a right or supposed right and after they had proceeded some
distance with the animal, they were followed by a person who was killed by some
of the members, held, all the members were liable for rioting but all could not be
convicted of an offence under s. 304 as that offence could not be said to have been
committed in pursuance of the common object nor did all the members know such
was likely to be committed in prosecution of the common object (s).

If five or more persons go to a place and some of them assault a person, the
presumption is that the assault took place in prosecution of the common object
of assaulting that person (t).

Where the Magistrate found in his judgment that three of the six accused
shared in the common object set out in the charge, viz., to assault two persons,

(k) Attar Singh , (1917) P. L. R. No. 57 of 1918: P. R. No. 9 of 1918 (Cr.) :
P. W. R. No. 14 (Cr.) 1918 : 19 Cr. L. J. 390: 44 I. C. 742.

(l) In re Soripati Challamiah, (1910) 10 M. L. J. 115: (19J1) M. W. N. 97:
12 Cr. L. J. 496.

(m) Mamfree Choudhury, (1923) 51 C. 418 : 38 C. L. J. 397 : A. I. R. (1924)
Cal . 323.

to) Abdul Jalil, (1923) 28 C. W. N. 732.

(o) Sujatalli Nyamatabli, (1921) 24 Bom. L. R. 110 : 3 Cr. L. T. 26G : 60 I. C.

192.

(p) Tanak Chaudhery, (1923) 24 Cr. L. J. 542 : 73 I. C. 168: A. I. R. (1923)

. 3^1.

(q) Mahanl Narain Das, (1921) 3 Lah. 144 : 4 L. L. J. 91 : 23 Cr. L. I. 613 :

88 I. C. 113: A. I. R. (1922) Lah. 1. J

(r) Panchanon Bose, (1919) 23 C. W. N. 693 : 30 C. L. J. 19 : 20 Cr. L J 721 •
02 I. C. 881.

(s) Agra, (1914) P. L. R. No. 219 of 1916 : P. R. No. 37 of 1914 (Cr.) : 18 Cr.

L. J. 209 i 27 I. C. 833. '

(t) Brijubhukau, (1922) 23 Cr. L. J. 746 : 69 I. C. 833 : A. I. R. (1923) Nag.

100 .

SEC. 147 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

247

and three others snatched away the cattle of the complainant, held , that there
were not five persons that shared in the common object and as such the ingredient
of the offence under this section was wanting and the High Court set aside
the conviction and sentences (u).

Where once a party entitled to possession forcibly takes possession, his* re-
taining possession subsequently by force is not with the common object of taking
possession by force and the opposite party has no right to eject them forcibly (v).

To sustain a conviction the common object stated in the charge must agree
in essential particulars with the common object established on evidence (w).

The existence of a common object before the commencement of a sudden
fight is not necessary for a conviction of rioting (w 1 ).

Right of private defence : — When a body of men are determined to vindicate
their rights or supposed rights by unlawful force, and when they engage in a fight
with men, who, on the other hand, are equally determined to vindicate by unlawful
force their rights or supposed rights, no question of self-defence arises (x). Where
the accused who were found to be in possession of the disputed land, went upon
it in a large body armed with lathis , prepared m anticipation of a fight and were
reaping paddy grown by them, the complainants party came up and attempted
to cut the paddy whereupon there was a fight the result of which was that one man
was seriously wounded and died, held, that the common object established was
to maintain possession and the conviction under this section was held illegal and
where one accused caused simple hurt and another a fructure of the skull which
ended fatally, held, that the former was protected while the latter was not protected
by the right of private defence (y). Where a party of persons consisting of some
five peadas and a number of coolies sufficient for the work to be done went through
a spot on a river flowing through the land of M for the purpose of repairing a
bundh to cause the water flow down to their master s channel and in the afternoon,
the accused, who were servants of M, attacked T's men, some of whom, were
wounded with lathis, held, that the accused were members of an unlawful assem-
bly, the common object of which was by show of criminal force and by criminal
force, if necessary, to enforce the right to keep the river channel clear by prevent-
ing the constructing of the bundh and by demolishing it and that the case came
within the clause 4 of s. 141, held further that no right of private defence of pro-
perty is conferred by the Penal Code except as against perpetrators of offences
under the Code and as upon the facts of the case no offence was committed by
T's people except civil trespass, the accused were not protected (z).

Where the petitioners trespassed on the land to which the complainant had
right of possession and of which he was in possession till such entry and began to
uproot the castor plants and while they were thus in actual but temporary occupa-
tion, the complainant and his party arrived there and tried to unyoke the cattle
whereupon a riot took place, held, that there was no right of private defence on
the part of the accused who had but temporary possession and that the accused
were members of an unlawful assembly and the conviction under s. 147 was

(u) A minullah, (1022) 26 C. W. N. 636.

(v) Ahed Fakir, 26 Cr. L. J. 917: A. I. R. (1926) C. 1235.

(w) Ritbaran Singh , (1917) 4 Pat. L. \V. 120 : 19 Cr. L. J. 789 : 46 I. C. 709,
following Fateh Singh , (1913) 41 C. 43 : 14 Cr. L. J. 380 : 20 I. C. 140.

(wi) Golla Hanumapa, (1010) 35 M. 243 : 21 M. L. J. 805 : (1911) M. W. N.
106: 12 Cr. L. J. 269 : 10 I. C. 372.

(x) Frag Dat , (1 898) 20 A. 450.

(y) Silajit Mahto , (1909) 36 C. 865 : 13 C. W. N. 853 : 9 C. L. J. 678 : 2 I. C.

169.

(z) Ganauri Lai Das, (1889) 16 C. 206.

248

THE INDIAN PENAL CODE

[CHAP. VIII

upheld (a), but where the accused were rightfully in possession of the land and
found necessary to protect themselves from the aggression of the complainant who
wanted to take forcible possession of the land, held , they were justified in taking
such precautions as they thought were required and using such force or violence
as was necessary tc prevent the aggression (b). A free fight is one when both
sides mean to light from the start, go out to light and there is a pitched battle.
The question of who attacks and who defends in such a fight is wholly immaterial
and depends on the tactics adopted by the rival commanders. The fact that
the accused’s party were victorious does not lead to any inference that they
were the aggressors (c).

Removal of the property by the Civil Court peon without giving any
option to the judgment-debtor to provide safe-custody for the property must be
considered as illegal, and consequently the subsequent taking-back of the property
by the petitioners could not be held to constitute any offence under Ss. 183 and
147, and s. 99 would not operate as a bar to the exercise of the right of
private defence of property (d).

Where a constable was entrusted with executing a warrant of arrest which
allowed bail and did not inform the person to be arrested that bail had been allowed,
and the accused committed a common assault on the constable and rescued the
person arrested, held , that the arrest was illegal and that the accused persons were
justified by the law of private defence in committing a common assault upon the
constable (e).

Where the petitioners actually cultivated the disputed crop, being no parties
either to the suit or to the delivery of possession of the land, held , they were justi-
fied in claiming what they had grown and in resisting the action of the com-
plainant when he went to take possesion and that they were not guilty of rioting (f).
Where the accused were in possession of a certain land and sowed crops in it and
another person in bad faith and dishonestly with a party of men went upon the
land and commenced to cut the crops for the purpose of removing them and the
accused went in a body to protect hL property and had no time to have recourse
to the protection of the public authorities, the Allahabad High Court held that the
accused and his party were not guilty of rioting in as much as they were acting in the
defence of their property (g). The law does not require that when a person
is being wrongfully deprived of property of which he is in possession he should
leave the thief alone and run to a thana at a distance of a Koss (two miles) to seek
redress from the police and such person has the right of private defence, but the
wrong-doer has no such right (h).

Where the tenant whose right is determined after expiry of lease, he has no
right to remain forcibly upon the land and say to his landlord that he will cultivate
that land till such time as he is evicted by a Civil Court. From the moment the
title of the tenant expires, the landlord is in possession in the eye of law and
provided that he does not use undue force, he is entitled to go upon the land

(a) Jairam Mahton, (1907) 35 C. 103 following Ganauri Lai Das, (1889) 16
C. 206.

(b) Pachkauri , (1897) 24 C. 686; Fateh Singh, (1913) 41 C. 43: 14 Cr. L. J.
380 : 20 I. C. 140. See Paresknath Sarkar, (1905) 33 C. 295.

(c) Ahmad Shero, (1931) 32 Cr. L. J. 868.

(d) Ahmmad Shaikh , (1928) 66 C. 460 : 48 C. L. J. 288 : 33 C. W. N. 174.

(e) Shayama Char an Mafumdar, (1911) 16 C. W. N. 640 : 13 Cr. L. T. 690 : 16
I. C. 1006.

(f) Gojendra Sherai, (1911) 16 C; L. J. 80 : 13 Cr. L. J. 188: 13 I. C. 1004.

(g) Jagesher Rai, (1916) 15 A. L. J. 47 : 18 Cr. L. J. 603: 40 1. C. 311.

(h) Har Chand, (1929) 31 Cr. L. J. 129: A. I. R. (1930) L. 314 (2).

SEC. 148] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

249

and *if necessary to use force for the purpose of asserting and maintaining his
possession, (h 1 ) *

If in the course of a riot between the two parties, the death of a person is
caused, and the evidence is so conflicting and unsatisfactory that individual
responsibility for death cannot be fixed upon any one but it is clearly established
that they were guilty of rioting and neither side has been able to establish any
justification for their attack upon the other, held, that there is no reason for
discriminating between the two parties in the matter of the sentence to be
imposed on them (i).

Exceeding right of private defence !— ' When an attack was made on
persons in the lawful exercise of their right over the property in question, they
were undoubtedly entitled to the right of private defence, and the only question
which can arise after that is whether any member of the party individually
exceeded that right (j). It is impossible that a man who is acting in the exercise
of a legal right can be a member of an unlawful assembly. Any person who
exceeds the right of private defence is liable to be punished for the specific
offence which he may be found to have committed in excess of the right (k).

148. Whoever is guilty of rioting, being armed with a
„. deadly weapon or with anything which,

dead!y 1, weapo™ e Wlt used as a wear>on of offence, is likely to
cause death, snail be punished with im-
prisonment of either description for a term which may extend to
three years, or with fine, or with both.

Deadly weapon s. 144.

Enhanced punishment is provided for by this section as it deals with rioting
with deadly weapon.

Applicability : — As to punishment for an offence under s. 148, enquired
into by a Council of Elders in a Punjab Frontier District, in the North-West
Frontier Province or in Baluchistan, see the Frontier Crimes Regulation, 1901
(3 of 1901) s. 12, Punjab and N. W. Code.

Scope : — S. 148 provides for the punishment of a more serious offence than
mere rioting (I).

To sustain a charge under this section, it is not necessary that all the accused
should have a common object before fighting begins. It is quite enough if some
of the accused adopted the object of the other accused when they joined the latter,
and it is immaterial that the idea of inflicting injury was conceived suddenly after
the accused went to the scene of offence (m).

Procedure : — Cognizable Warrant Bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first
class.

Offence under this section being triable by a Magistrate with first class powers,
a trial by a Magistrate with second class powers is without jurisdiction and is

(hi) Gita Prasad Singh, (1923) 5 P. L. J. 666 : 26 Cr. L. J. 919 : 81 I. C. 635 ;
A. I. R. (1925) Pat. 17.

(i) Sadullah, 6 L. L. J. 170.

(j) Kunja Bhuiya, (1912) 39 C. 896 ; Ambiha Singh, 1 P. 212.

(k) Nasimuddi, (1913) 40 C. 163 (166) t IS Cr. L. I. 497 : 15 I. C. 641, followed
in Nawab, A. I. R. (1928) L. 277.

(l) In re. Subbigadn, (1926) 60 M. L. J. 659 : A. I. R. (1926) M. 741.

(m) In re. Galla Hanumappa, (1910) 36 M. 243 : 10 M. L. J. 06 : (1911) M. W. N.
106: 21 M. L. J. 806: 12 Cr. L. J. 269: 10 I. C. 372.

250 THE INDIAN PENAL CODE [CHAP. VIII

4 -

illegal. The District Magistrate cannot confer jurisdiction by ordering a Magistrate
with second class powers to act (n). 0 ^

Charge : — The charge must state the common object of the unlawful
assembly (o).

Where the accused were charged under Ss. 148, 304/149 and 326/149 and
the Jury found them guilty under s. 326 only for which there was no charge, held,
that the accused were entitled to an acquittal and the High Court on a reference
under s. 307 Cr. P. Code was precluded from considering the question of rioting
or the question of any separate act of causing hurt with which the accused were
never charged (p).

Form of Charge : — I (name and office of Magistrate , etc .) hereby charge
you (name of the accused) as follows

That you, on or about the day of ,

at , were a member of an unlawful assembly,

and did, in prosecution of the common object of the assembly, namely, — committed
the offence of rioting with a deadly weapon (or with — which used as a weapon of

offence was likely to cause death) to wit , and thereby committed

an offence punishable under s. 148 of the Indian Penal Code, and within my
cognizance (or the cognizance of the Court of Session).

And I hereby direct that you be tried (by the said Court) on the said charge.

It is the duty of the appellate Court in a case where a conflicting account of
the riot is given by the prosecution to examine the evidence carefully so as to
show that the Court was fully convinced upon a consideration of the pros and cons
of the case and the criticism advanced by the defence that the account given by
the prosecution was true and that the accused were the aggressors (q).

Conviction under s. 323 on a charge under this section is not illegal (r).

Separate sentences s — It has been held in Pirn Ramas case (s) where the
amendment of s. 35 Cr. P. Code has been considered that separate sentences under
Ss. 148 and 326 are illegal subject to this limitation that the sentences so passed
could be awarded under any two of the sections and provided they are not in
excess of the powers of the Court passing them.

Exceeding right of private defence . — Where the accused were in possession of
land by growing crops thereon and resisted by force the aggressors from removing
the crops grown by him, held, they are not guilty of rioting but if one of the
acaised used a garsana and inflicted grievous hurt, he exceeded the right of
private defence (t).

Deadly weapon : — Where persons go armed with sticks to defend themselves
against trespassers, held, they cannot be convicted under this section (u). It is a k
question of factto be decided in each case whether the lathi used, or the lathi with
which the injuries is caused, was or was not in itself a deadly weapon (v). Bamboo
sticks, two inches thick, are deadly weapons if they are used on a vulnerable
part (w).

(n) Azizur Rahman, (1924) 43 C. L. J. 214.

(o) -(1865) 4 W. R. (Cr. L.) 9 ; (1867) 8 W. R. (Cr. L.) 17.

I C ( 731 Madan Mondal > ( 1913 ) 41 C * 662 •* 18 C - W * 668 15 Cr - L * J- 166 : 22

S ' ) Jiwan Raut, (1922) 4 Pat. L. T, 502 : 24 Cr. L. J. 407 : 72 I. C. 519.

Indar Singh , (1922) A. I. R. (1923) Lab. 326.

(s) 49 B. 916 : 27 Bom. L. R. 1391.

(t) Jhalku Tewari , (1913) 17 C. W. N. 1081 : 14 Cr. L. J. 590 : 21 I. C. 382.

(u) In re . Samba PiUai , (1916) M. W. N. 213-4 L. W. 125 : 17 Cr. L. J. 891 :
35 I* C. 833.

(v) Nathu, (1892) 15 A. 18 (20).

(w) Pedda Hampayya, (1929) M. W. N. 563.

251

SEC. 149] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

* Being armed * : — If a member of an unlawful assembly is armed with a
deadly weapon, the otiier members cannot on that account be charged under this
section. . It is only the actual persons who are so armed, who can be charged under
this section (x).

Where it was proved that one person instigated another to join an unlawful
assembly armed with a deadly weapon and afterwards joined the unlawful assembly
himself, he might be punished under $. 148 read with s. 114, though he were not
himself armed with a deadly weapon (y).

Factious fight — Self-defence : — Where there was a riot in which both the
Mahommedans and Hindus were engaged and both sides received injuries, the
accused receiving worse injuries than the witnesses for the prosecution, it is impos-
sible to say that the injuries inflicted upon certain people of the prosecution were
not in self-defence or justified by extreme provocation and the accused in such
cases cannot be convicted of the charge of causing voluntary hurt (z).

149. If an offence is committed by any member of an un-

Ever number of assem My in prosecution of the

unlawful assembly common object of that assembly, or such
guilty of offence com- a s the members of that assembly knew to
o/aimon ^f ion be likely to be committed in prosecution
of that object, every person who at the time
of the committing of that offence, is a member of the same assem-
bly, is guilty of that offence.

This section is not intended to subject a member of an unlawful asembly to
punishment for every offence which is committed by one of its members
during the time they are engaged in the prosecution of the common object.
In order to bring a case within this section, the act must be done with a
view to accomplish the common object of the unlawful assembly, or it must
be proved that the offence, though not committed in prosecution of the common
object of the unlawful assembly, is one which the accused knew would be likely to
be committed in prosecution of the common object.

This section, creates no offence, although like s. 34, it deals with constructive
liability, still it is wider in scope than s. 34.

jr. Scope ' Their Lordships of the Judicial Committee have held : " S. 149,
however, is certainly not otiose, for in any case it creates a specific offence and
deals with the punishment of that offence alone. It postulates an assembly of five
of more persons having a common object, viz., of those mentioned in s. 141
[ R. \. Sabid (1873) H Beng. L. R. 347 (359) ] and then the doing of acts by mem-
bers of it in prosecution of that object. There is a difference between object and
intention, for though their object is common, the intention of the several members
piay differ and indeed may be similar only in respect that they are all unlawful,
while the element of participation in action , which is the leading feature of s. 34 is
replaced in s. 149 by membership of the assembly at the time of the committing
of the offence. Both sections deal with the combination of persons, who become
punishable as sharers in an offence. Thus they have certain resemblance and
may to some extent overlap, but s. 149 can not at any rate relegate s. 34 to
the position of dealing only with joint action by the commission of identically

(x) Sabir , (1894) 22 C. 276 (282).

(y) Srihari Some v. Lai Khan , (1900) 5 C. W. N. 260 (261, 262).

(z) Pedda Hampayya, (1929) M. W. N. 663.

252 THE INDIAN PENAL CODE [ CHAP. VIII

similar criminal acts, a kind of case which is not in itself deserving of separate
treatment at all ” fa).

■ r

As Couch, C. J., held, the section is divided into two parts and in order to
bring a case within (I) the first part, viz., that which speaks of the offence being
committed in the prosecution of the common object of the assembly, the act must
be one which, upon the evidence, appears to have been .done with a view to accom-
plish the common object and at first there does not seem to be much distinction
between the two parts, and the cases which come under the first part will fall under
the second. But there may be cases which would come within the second part and
not within the first. Persons assemble with a view to attack and plunder the house
of a particular person ; that would be an unlawful assembly, and the common
object of the assembly would be house-breaking, or the other offences which would
be included in such acts as attacking and plundering a mans house ; but from some
cause, such as a show of resistance, they might not continue to prosecute that
common object ; and before they had dispersed and whilst they continued to be an
unlawful assembly, some of them might plunder another house and thereby commit
an offence (b). 44 Now inasmuch as the continuance of the unlawful assembly
is by the definition of s. 141 made conterminous with the prosecution of the com-
mon object, it seems tolerably clear that the Legislature must have employed the
words ' prosecution of the common object * with some difference of meaning in these
two passages respectively. Also the mere fact that the Legislature thought fit to
express the second alternative appears to show very distinctly that it did not intend
the words, in * prosecution ’ which are found in the first to be equivalent to during the
prosecution for if they were, then the second alternative would have clearly been
unnecessary,*’ (c), but in a later case of the Calcutta High Court, it has been held as
follows : — “ Neither of the cases in 20 W. R. (Cr.) 5 and 3 C. L. R. 49 lays down
any hard and fast rule as to the circumstances under which one member of an un-
lawful assembly can be deemed guilty of an offence committed by another under
s. 149, and every case must be decided on its own merits” (d).

Distinction between s. 34 and s. 149 s— 44 in certain circumstances

at least all who assist in the accomplishment of a common purpose to do a criminal
act may be deemed to have (done that act) within the meaning of s. 34. This
view of s. 34 does not necessarily render s. 149 superfluous as was urged on behalf of
the prisoner. S. 34 speaks of common intention while s. 149 refers to common object.
Besides this, s. 149 comes into operation only when there is an unlawful assembly
of five or more persons as required by s. 141, and in that event, it has a wider scope
than s. 34.” (e). Where a prisoner is constructively guilty of murder under s. 34, it
is doubtful if he can be said to have committed the offence of murder within the
meaning of s. 149, so as to make other persons by a double construction, guilty of
murder (0.

The view in Chiddas case (g) which held that $. 1 49 creates a substantive offence
is opposed to the view of the Calcutta High Court in the Full Bench decision in
Nilmoney Poddars case (h) which held that this section does not define and make

__ _

(a) Barendra Kumar Ghosh , (1624) 52 I. A. 40 : 62 C. 197 (P. C.) : 29 C. W. N.
181 : (1925) M. W. N. 26 : 3 Pat. L. R. 1 : 27 Bom. L. R. 148 : A. I. R. (1926) P. C.
1 : 26 P. L. R. 50: 6 Pat. L. T. 169.

(b) Sabid AH, (1873) 11 Beng. L. R. 347 : 20 W. R. (Cr.) 6 (F. B.).

(c) Ibid followed in Hari Singh, (1878) 3 C. L. R. 49.

(d) J ohiruddin, (1894) 22 C. 806.

,e) Per Mookerji, J., in Barendra Kumar Ghosh, (1923) 28 C. W. N. 170 (191)
(S. B.).

(f) Jhubo Mahton, (1882) 8 C. 739.

(g) 24 A. L. J. 178.

(h) (1889) 16 C. 442 (F. B.) at p. 448.

SEC. 149] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

253

punishable any specific offence, but simply makes the participator, in an unlawful
assembly equally liable with the actual perpetrator for any offence committed by
him in prosecution of the common object. It may be pointed out that Nilmonys
case (h) has been followed in a recent decision by the Patna High Court in Bajo\
case (i) on -the point as to whether separate sentences can be passed under Ss. 147
and 380, and the same view has been taken in Ramasray Ahir's case (j).
The view in Suppia Sarvias case (k), which points outthat s. 149 constitutes an
offence of its own and the Full Bench decision in re. Meethumalai Gaunder (I),
which held a contrary view must be taken to have been overruled by the Privy
Council in Barendras case (m).

Similarly the view taken in Piras case (n) which held that this section was
wide enough to cover the principle of s. 34, does not seem to be correct.

Object This section creates no offence but was intended to make it clear
that an accused person whose case falls within its terms cannot put forward the
defence that he did not with his own hand commit the offence committed in
prosecution of the common object of the unlawful assembly or such as the
members of the assembly knew to be likely to be committed in prosecution
of that object (n x ). S. 149 is an offence in respect of which there has been
participation (o).

If a member of an unlawful assembly is to be found constructively guilty of
an offence under this section, it must be the same offence of which the principal
is guilty and not some other offence (p). It prescribes a new set of conditions
to which the section shall become applicable but in the end the guilt of the person
shall be the guilt attaching to the principal's crime (q).

Offences under special Acts do not come under s. 149— The definition
of an offence in this section does not include offences under special Acts (q l ).
This section has no application to offences under the Indian Railways Act but
is confined to offences under the Penal Code (r).

Procedure : — Cognizable or Non-cognizable — Warrant or Summons — Bail-
able or not bailable according as the offence is cognizable or non-cognizable — Bail-
able or is non-bailable according as a warrant or summons may issue for the offence
—Triable by the Court by which the offence is triable.

Following the Privy Council decision in Kishan Singhs case (s) the Nagpur
Court has held iq Kishan Das*s case (t) that it could not on appeal change the
conviction from one under s. 323 to Ss. 302 and 149.

Charge : — The charge framed under this section should state with certainty
and accuracy the exact nature of the charge brought against the accused. Unless he

(i) (1928) 8 P. 274, followed in Kitabdi, (1930) 35 C. \V. N. 184, Harendranaih
Barman , (1930) 35 C. W. N. 345.

(j) ■ (1928) 7 P. 484.

(k) (1929) M. W. N. 888.

(l) (1924) 47 M. 746 (F. B.).

(in) 52 I. A. 40 : 52 C. 197.

in) 8 L. L. J. 198 : 27 P. L. R. 347.

(in ) Bisheshur, (1887) 9 A. 645* followed in Theethumulai Gownder (1924‘ 47 M.
746 (F. B.).

(a) N'abi Bux, (1927) 52 B. 168 : 30 Bom. L. R. 88.

(p) Ram Prasad , (1922) 1 P. 753 : 4 Pat. L. T. 213 : 24 Cr. L. J. 65 : A. I. K.

(1923) Pat. 50.

(q) fiamsundar Isser, (1926) 5 P. 238 : A. 1. R. (1926) P. 253.

* (qi ) Aydros $922)^17 L. W. 21: (1922) M. W. N. 800: 24 Cr. L. J. 360. 72

1. C. 360 : A. L R, (1923) M. 187 ; Indetsain (1919) 21 Cr. L. J. 418 : 56 l. C. 200.

(r) Vasudeva Mudali, (1928) 57 M. L. J. 115: (1929) M. W. N. 522 : A. 1. K.
(1929) M. 886.

(s) 55 I. A. 390 : 50 A. 722 : 33 C. W. N. 1 (P. C.). A. I. R. (1928) C. 254.

(t) A. I. R. (192#) Nag. 325,

254

THE INDIAN PENAL CODE

[CHAP. VIII

has this knowledge he must be seriously prejudiced in his defence. This is true in
all cases, but it is more especially true in cases where it is sought to implicate an
accused person for acts not committed by himself but by others with whom he
was in company (u).

The Punjab Chief Court has held that though it is desirable to set out the
specific common object in the charge including one under this section, omission
is cured by s. 537 Cr. P. Code (v). I* has been laid down in numerous rulings
of the Calcutta High Court that in cases of rioting the common object should be
stated in the charge, the omission to state it under Ss. 143 and 147 does not
vitiate a conviction if there is evidence on the record to show it, but it is otherwise
with a charge under this section (w).

When a person is charged by implication under this section, he can not be
convicted of the substantive offence (x). Where persons were originally charged
under Ss. 147 and 353, but the evidence did not disclose which of the accused
actually struck the constable at whose hands he received the injuries, held , they
could be convicted under s. 147 on appeal although they were not charged under
this section (y).

Form of Charge : — I (name and office of Magistrate , etc) hereby charge
you ( name of accused) as follows : —

That you on or about the day of

at , were a member of an unlawful assembly,

the common object of which was to ( specify the object ) and

that while you were a member of the said unlawful assembly, another member
of the same, viz., (specify the act committed) and thereby committed an offence

punishable under section of which said offence was

committed in prosecution of the common object of the said unlawful assembly
(or which offence the members of the said unlawful assembly knew to be likely com-
mitted in prosecution of the common object of the assembly), and that you thereby
committed an offence punishable under s. 149 of the Indian Penal Code, and
within my cognizance (or cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Charge to Jury: — Where in a charge to the Jury, the Session Judge did not
point out that the individual acts were not mentionedin the charge, the accused
should not be convicted of the offence under s. 323 in respect of their individual
acts when they are charged under Ss. 147, 304, 305 and 149 (z)l In a charge to
the Jury the Sessions Judge ought, in commenting upon *he provisions of this
section, to have drawn the attention of the Jury to the common object, although
the common object of the unlawful assembly is stated in the charge (a).

Separate sentences: — see commentary under Ss. 71 and 147, supra.

Where each of the accused took an individual part in the assault, separate
sentences under Ss. 323 and 149 were legal (b). It is not sound to pass sentences
under s. 147 and some other section of the Code where the latter of the two sections
can be applied by the aid of the provisions of this section (c). Separate sentences

(u) Behari Mahton, (1884) 11 C. 106; Pareshnath Sarkar, (1905) 33 C. 296,

(v) Dhian Singh, (1914) P. R. No. 16 of 1916 (Cr.) : P. W. R. No. >7 of* 1915 :

16 Cr. L. J. 689: 30 I. C. 737. *

(w) Kudrutulla, (1912) 39 C. 781.

(x) Reasuddin, (1912) 16 C. W. N. 1077. * * -

(y) Ramasray Ahir, (1928) 7. P. 484: \. 1. R. (1928$, P. 464. * *

(i) Mangan Das , (1902) 29 C. 379 ; see Mahammad Khan, (1907) 9 Bom. L, R. *.

153: 5 Cr. L. J. 168. 1

(a) Ibid.

(b) Harbans Pandey , (1912) 40 C. 511 : 14 Cr. L. J. 66 : 18 I. Q. 402.

(c) Kure, (1918) 16 A. U }. 615 ; 20 Cr. L. J. 517 ; 511. C. 677.

SEC. H9] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY 255

cannot be passed under Ss. 147 and 323 or 325 read with this section (d). These
decisions do not appear to have been modified in consequence of the amendment
of s. 35 Cr. P. Code. The view in Kanchon Mollas case (e), where according to the
obiter of Neubould, J., the old case-law has been overruled and cannot be sup-
ported so far as separate sentence under a substantive offence and some other section
of the Code along with s. 149 is concerned. See in this connection Basiruddis
case (f), and Bajos case and other cases (g) which seem to lay down the law
correctly. The view of Sulaiman, J., sitting singly in Chiddas case (h) seems
to be wrong.

Order under s. 106 of the Criminal Procedure is illegal : — The Patna High
Court has held that the amendment of s. 106 Criminal Procedure Code has
made an order under s. 106 impossible when the only section under which the
accused is convicted is a section of the Penal Code read with this section (i).

4 In prosecution of the common object ' The test whether an offence
is committed in prosecution of a common object is whether the common object
is prosecuted in fact as well as in the intention of the doer (j). For meaning of this
expression see commentary under the heading 4 Scope * and relevant passages
quoted from Sabid Ali, (1873) 20 W. R. 5 (F. B.). The question is a question of
fact to be determined upon all the circumstances of each case. But if the unlawful
assembly had been formed to commit an assault upon another person, the liability
of the members may vary, e.g., where the rioters shout 4 maro * and thereupon some
of them draw swords, (k).

Members of an unlawful assembly may have a community of object only up
to a certain point beyond which they may differ in their objects, and the knowledge
possessed by each member of what is likely to be committed in prosecution of
their common object will /ary, not only according to the information at his command,
but also according to the extent to which he shares the community of object, and
as a consequence of this, the effect of this section may be different on different
members of the same unlawful assembly (1). This section merely enacts the general
principle that if parties are shewn to have taken part in a general assault with a
common object, they may be held guilty of acts committed even in excess of that
common intention (m). Where the accused stood by and sympathised with the
principal offender but did not take any active part and induced the principal offender
to leave off the victim, held, that the accused must be excluded from the operation
ofs. 149 (n).

Where eaefi of several persons took part in beating a person so as to break
eighteen ribs and cluse his death, each of them was held to be guilty, as a principal
of the murder of the deceased fo). Where the accused persons have been acquitted
of rioting, they cannot be properly convicted of grievous hurt under s. 325 by the
application of s. 149 where it has not been found that those persons or any of them
were members of an unlawful assembly in prosecution of the common object of

(d) Nemdhari Singh , (1920) 2 Pat. L. T. 91: 22 Cr. L. J. 449 : 01 I. C. 833.

(e) 41 C. L. J. 503.

(f) 31 C. W. N 532.

(g) (1928) 8 P. 274, followed in Kitabdi, (1930) 35 C. W. N. 184, Harendranath
Barman, (1930) 35 C W. N. 345. #

(h) 24A.L. J. 178.

(i) Cheddi Singh , (1924) 3 P. 870.

(j) Madat Khan, (1886) P. R. No. 61 of 1887.

* (k) Dasarathi Rai , (1867) 7 W. R. (Cr.) 58 ; Ramraju Tervan, A. I. R. (1030)
Mad. $57.

(l) Jahiruddin, (1894) 22 C. 306 see Bisheswar, (1887) 9 A 645.

(m) Sheoraj Singh, (1926) 48 A. 375 : 24 A. L. J. 394 : 27 Cr. L. J. 874 : A. .1 R.
(1926) A. 340.

(n) Ibid .

(o) Gout Chandra Das, (1875) 24 W R. 5, (Cr.) see also Hart Singh, (1878) 3
C. L. R. 49 ; Natoo Fakir, (1865) 4 W. R. (Cr.) $0.

256

THE INDIAN PENAL CODE

[CHAP. VIII

which grievous hurt was caused by any other member of the same assembly, or
that the offence was such as each member of that assembly knew it to be likely to
be committed in prosecution of that object (p).

In cases of conviction of members of a riotous mob for a specific act of vio-
lence, if persons found at a particular point of time to be members of the mob
but not shown to have taken part in the specific act are to be found guilty of that
act by force of s. 34, it must clearly be found that the act was in furtherance of the
common intention of the mob while the accused were in it or that the act was such
as the accused knew to be committed in prosecution of their object (q). The
words ' common intention * in s. 34 have however not the same meaning as
* common object* in Ss. 146 and 149 (r).

Where of the several persons charged with rioting armed with a deadly weapon,
only one is proved to have been possessed of a gun, it is illegal to convict others,
who had no such dangerous weapon, of an offence (s). Where murder was
committed in prosecution of the common object of the victims, held , they were
rightly charged and convicted under Ss. 302 and 149 (t).

When an assembly exceeds the right of private defence, all the members are
responsible for the act of a single member if the act is done in prosecution of the
common object (u).

‘Or such as the member of that assembly knew it to be likely to be
committed* : — S. 149 merely enacts the general principle that if parties are
shown to have taken part in a general assault with a common object, they may be
held guilty of acts committed even in excess of common intention (v).

The word ‘ knew * used in the second branch of the section is advisedly used
and cannot be made to bear the sense “ might have known. ’* See however the
observations of Couch, C. J. t in the case of Sabid Ali fw). The word 4 knew 4
indicates the state of mind at the time of the commission of the offence and not
knowledge acquired subsequently. The offence, for which the members of an
unlawful assembly are held guilty as being committed in pursuance of the common
object of an unlawful assembly must be probably flow from the prosecution of the
common object that each member might anticipate it (x).

150. Whoever hires or engages, or employs, or promotes,
or connives at the hiring, engagement or
Hiring or conniving employment of any person to join or become

at hiring, of persons to r t e \ r l i i i n

join unlawful assembly, a member or any unlawtul assembly, shall

be punishable as a member of such unlaw-
ful assembly, and for any offence which may be committed by
any such person as a member of such unlawful assembly in pur-
suance of such hiring, engagement or employment, in (he same
manner as if he had been a member of such unlawful assembly,
or himself had committed such offence.

Unlawful assembly — s. 141. Offence — s. 40.

(p) Abhi Alisser v. Lackmi Narain, (1000) 27 C. 506: 4 C. W. N. 546, followed
in Hansa Patkak v. Bansi LaU Das, (1901) 8 C. W. N. 519.

(q) Ganapatki Sarma, (1922) 17 L. W. 197 : 11923) M. \V. N. 104: 24 Cr. L. J.
531: 73 I.C. 147.

(r) Bhondtt Das, (1928) 7 P. 758: 30 Cr. L. J . 205.

(s) In re. Ckotani Ranto, (1915) 16 Cr. U. J. 446 (Mad.) : 29 I. C. 78.

(t) Tiruva Tevan, (1929) M. W. N. 899.

(u) Nareshi Singk, 2 P. 595 : A. I. R, (1924) P. 388.

(v) Shoeraj Singh, (1926) 48 A. 375: 24 A. L. J. 394 : 96 I. C. 28.

(w) Per Potinfiex J., in Sabid Ali, (1873) 11 B. L. R. 347 : 20 W. R. (Cr.) 5 ;
Dial Singk, (1928) 27 Cr. L. J. 547 : A. I. R. (1926) L. 419.

(x) Kkamiso, (1916) 6 S If. R. 101 : 16 Cr. L. J. 776: 17 I. C. 408.

SEC. 151] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

257

Scope : — S. 150 of the Penal Code refers to a particular unlawful assembly.
Where, therefore, it is found that any person has hired or engaged any other person
to join or become member of a particular unlawful assembly, he is liable for any
offence committed by any member of that unlawful assembly in the same way as
if he had been a member of such unlawful assembly or himself had committed
such offence (y).

While this section deals with a particular unlawful assembly, s. 157 is of
wider application and makes the harbouring, receiving or assembling of persons
who are likely to be engaged in any unlawful assembly, an offence (z).

Procedure : -Cognizable —Summons or Warrant — Bailable or Not Bailable
— according as the offence committed by the person hired, engaged or employed, —
Not compoundable — Triable by the Court by which the offence is triable.

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name of
the accused ) as follows : —

That you, on or about the day of , at

1 hired (or engaged or employed or promoted or connived

at the hiring or engagement or employment of XY to join as (or

become) a member of an unlawful assembly, the common object of which was
(specify common object) and that the said XY as a member of such unlawful assembly
in pursuance of such hiring (or engagement or employment) committed (specify

offence ), and that you have thereby committed an offence punishable under

(s/a/e the substantive offence) of the Indian Penal Code, and within

my cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

151 . Whoever knowingly joins or continues in any assembly
of five or more persons likely to cause a dis-
turbance of the public peace, after
such assembly has been lawfully com-
manded to disperse, shall be punished with
imprisonment of either description for a
term which may extend to six months, or with fine, or with both.

Knowingly joining or
continuing in assembly
of live or more persons
after it has been com-
manded to disperse.

Explanation . — If the assembly is an unlawful assembly
within the meaning of section 141, the offender will be punishable
under section 145.

This section should be read subject to the provisions of s. 145 of the Code
and of s. 127 of the Code of Criminal Procedure. While s. 145 punishes joining
or continuing in 4 unlawful assembly * after knowing that it had been lawfully
commanded to disperse, this section punishes the same act where the assembly
was not * unlawful, * but was likely to cause a disturbance of the public peace.

Procedure : — Cognizable — -Summons Bailable Not compoundable

Triable by any Magistrate.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you, on or about the day of »

at , joined (or continued in) an assembly of five or more persons

likely to cause a disturbance of the public peace after knowing that snch assembly

(y) Ram LocKan Sircar , (1901) 29 C. 214.

(z) Ibid .

23

258

THE INDIAN PENAL CODE

[CHAP. VIII

had been lawfully commanded to disperse and thereby committed an offence
punishable under s. 151 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

‘Disorderly assemblies * s — It is immaterial for the purpose of this section,
whether the assembly was stationary or moving, compact or scattered. A refusal
by the gathering of an unlawful assembly of five or more persons to disperse after
being lawfully commanded to disperse, rendered every member of the gathering
liable to conviction under this section, and it was further held that in order to make
a person liable, it must be shown that the command was lawfully given (a).

The Penal Code contains no definition of this expression 4 an assembly to cause
a disturbance of the public peace . * Alderson, B., stated the law as
follows : — “ Any meeting assembled under such circumstances, as according to the
opinion of rational and firm men, is likely to produce danger to the tranquillity
and peace of the neighbourhood is an unlawful assembly, and in viewing this
question the Jury should take into their consideration the way in which the meet-
ings were held, the hour at which they met, and the language used by the persons
assembled, and by those who addressed them ; and then consider whether firm
and rational men, having their families and property there .would have reasonable
grounds to fear a breach of the peace, as the alarm must not be merely such as
would frighten any foolish or timid person, but must be such as would alarm
persons of reasonable firmness ** (b).

'Likely to cause a disturbance of the public peace * On a charge
under this section, it is not sufficient to establish merely that, in the opinion of
the magistrate, who ordered the particular assembly to disperse, such assembly
was likely to cause a disturbance to the public peace, but it is necessary to establish
by evidence to the satisfaction of the Court that the assembly was in fact likely to
cause such disturbance (c).

Where a meeting assembled for a lawful purpose, viz., for promotion of
religious feeling knowing that their meeting would be opposed, held, that meeting
was not an unlawful assembly (d).

This section contemplates 4 lawful assemblies * as the Explanation shows,
and so a perfectly innocent and lawful assembly may be lawfully commanded to
disperse by a magistrate, when it is likely to cause a disturbance of the public
peace (e). *

' After such assembly has been lawfully commanded*to disperse *

Where a procession of Hindus was about to pass in front of a Mosque using various
musical instruments and the Sub- Inspector of Police ordered the leaders of the
procession to stop music and disperse but they advanced a little distance playing
on a drum and were subsequently resisted by a strong police-force, held , that s. 151
was applicable to the two leaders (f).

152. Whoever assaults, or threatens to assault, or obstructs
Assaulting or ob ? r attempts to obstruct, any public servant
structing public servant in the discharge of his duty as such public
when suppressing not, serv ant, in endeavouring to disperse an

unlawful assembly, or to suppress a riot or

(a) Tucker, (1882) 7 B. 42.

(b) Vincent , 9 C. and P. 91.

(c) Per Moti Sagar, J.,in Girdhara Singh , (1922) 23 Cr. L. J. 529: P. L. R. No. 21
of 1922 : 64 I. C. 373 : A. I. R. U922) Lah. 135.

(d) Beatty V. Gillbanks, 9 Q. B. D, 308. (Salvation Army case).

(e) Muralidhar , (1887) P. R. No. 22 of 1887.

(f) Raghunath Venaih Dhulekar (1924) 47 A. 205.

SEC. 153 ] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

269

affray, or uses, or threatens, or attempts to Lise criminal force to
sugh public servant, shall be punished with imprisonment of either
description for a term which hiay extend to three years or with
fine, or with both.

Assault — s. 35 1 . Unlawful Assembly — s. 1 41 .

Public servant — s. 2 1 . Riot — s. 146.

Criminal force — s. 350. Affray— s. 159.

While s. 151 deals with passive resistance to the lawful command of a public
servant, the present section deals with active opposition to him. This section
punishes assaulting or obstructing a public servant when suppressing riot, affray, etc.

Procedure t— Cognizable — Warrant — Bailable — Not Compoundable — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge t — The charge must specify the person assaulted. It is not sufficient
to say that the accused * obstructed members of the police force ' (g). A person
may be separately charged with, and convicted of, offences under Ss.' 147, 352, 325
and 151 (h).

Cumulative sentence : — Persons found guilty under this section cannot
be separately sentenced under Ss. 332 and 333 of the Code as the infliction of hurt
constitutes the offence under this section (i).

Form of charge : — I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at ,

assaulted (or threatened to assault or obstructed or attempted to obstruct

XY f ) a public servant, in the discharge of his duty as such public

servant in endeavouring to disperse an unlawful assembly or to suppress a riot or
affray (or used or threatened or attempted to use criminal force to such public
servant) and thereby committed an offence punishable under s. 152 of the Indian
Penal Code, and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

1S3. Whoever malignantly, or wantonly, by doing anything
Wantonly giving pro- which is illegal, gives provocation to any
vocation with intent to person intending or knowing it to be likely
cause not— that such provocation will cause the offence

of rioting to be committed, shall, if the offence of rioting be com-
mitted in consequence of such provocation be punished with

if rioting be committed ; , i ^ . ■

which may extend to one year, or with
fine, or with both ; and if the offence of rioting be not committed,

.. . ... , with imprisonment of either description

tor a term which may extend to six months,
or with fine, or with both.

This section deals with the provocation of a person to rioting by the malignant
or wanton doing of an illegal act, but which does not amount to abetment. This

Ferasat, (1801) 10 C. 105.

Illustration (g), S. 235, Criminal Procedure Code.

Ferasat, (1801) 10 C. 105 ; Bana Panja, 17 B. 200 (F. B.).

200

[CHAP. VIII

THE INDIAN PENA I- CODE

section is composed of two parts. The first part provides for an enhanced penalty
when rioting is committed in consequence of the provocation, the second part
deals with the case where rioting is not committed.

Procedure :-The offence is diwded into two parts accordingly as the
provocation leads to rioting or does not result in rioting. In the former case —
warrant — if rioting not committed — summons, in both cases -offerice cognizable
and bailable — not compoundable and triable by any Magistrate and in the second
part, it may be tried summarily.

Charge : — I {name and office of Magistrate , etc.) hereby charge you ( name
of the accused) as follows : —

That you, on or about the day of — , at malignantly (or

wantonly) by doing an act which was illegal, viz ., gave provocation to

—intending (or knowing it to be likely) that such provocation would cause

the offence of rioting to be committed, and thereby committed an offence punishable
un^er s. 153 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Provocation of rioting : — In order to sustain a conviction under this section
there must be : (a) provocation given, (A) malignantly or wantonly, (c) by doing
an illegal act, (d) intending or knowing it to be likely that such provocation will
cause rioting (j).

4 Malignancy*— means ‘maliciously*. Where during the excitement of
Hindu Moslem riots, the accused wrote a poem giving an account of the riot and
praising certain classes of the Hindu community for having offered brave resistance
to the Mahomedan rioters and exhorting the Hindus to fight again for country’s
cause, the accused were convicted under this section and 117, but he was
acquitted on appeal on the ground that his composition could neither be regarded
as an illegal act nor was its publication ‘ malignant * or * wanton,’ within the
meaning of this section fk).

* Wantonly 9 — means recklessly. Where two parties of Mahomedans with
* tazias* both quarrelled for precedence and it was only by bringing armed police
that riot was averted, they were prosecuted under this section and their conviction
was upheld by the Court of revision holding that the word ‘ wantonly ' here meant
‘recklessly’ (1).

4 Illegal ’ : — As to the meaning of the expression 4 illegal * see s. 43, supra.
The throwing of a brickbat at a temple is not an offence nor is it prohibited by
law. A person deliberately throwing brickbat is guilty neither under s. 336 nor
under this section (m).

Where the question arose whether the action of the accused Vadagalis in
forming a separate group (goshti) behind the idol, and there singing the Tamil hymn
(Prabandham) was in contravention of the injunction contained in the decree of
the Civil Court, and secondly, whether it was ‘ wanton ’ or 4 malignant,’ Benson,
J., held that the action of the accused was not ‘ illegal ’ and even if it was ‘ illegal ’,
it must also appear that it was ‘ wanton * or ‘ malignant ’ in order to justify a
conviction under this section. There is nothing illegal, in India (where highways
have from time immemorial been used for the passing df religious processions),
in a procession or assembly engaging in worship while passing along a high way.

(j) KfaJtsal Singh, (1886) A. W. N. 23.

(k) Per Kanade, J., inKahanji, (1893) 18 B. 775.

(l) Husain Buksh , (1907) 29 A. 569.

(ra) Gya Prosad , (1928) 51 A. 465 : A. I. R. (1928) A. 745.

(n) Per Benson, J., in Vijiaraghava Chariar, (1902) 26 M. 554 F. B. at p. 584
referred to in Mansur Hasan V. Mohammad Zarnan, (1924) 52 I. A. 61 : 29
C. W. N. 486: 47 A. 151.

SEC. 153-a] of offences against the put? lic tranquillity 261

* Gives provocation to any person intending or knowing it to be likely
that such provocation will cause the offence of rioting to be committed

Wnere the killing of a cow by a Mahomedan was not done in the presence of any
Hindu whose religious feelings would be wounded and the evidence showed that on
hearing of a cow-killing sometimes afterwards the religious feelings of the Hindus
were wounded, the Allahabad High Court held that there being no evidence of malice
or wantonness on the part of the accused, the conviction under this section was
bad in law (o). In 1 893 a riot took place in Bombay between Hindus and Musalmans
and before the excitement caused by the riot had subsided, the accused composed
a poem and published a poem, giving an account of the outbreak and incidentally
extolling certain classes of the Hindu community and exhorting them to ‘ fight
again, * Ranade, J., held that the publication was illegal as contemplated in this
section and held further that s. 153 requires that the provocation given by
the commission of an illegal act must be given malignantly . The word ‘ wantonly ’
occurs only in this section of the Code, while the word 4 malignantly * occurs once
again in s. 270 which refers to the wicked spread of infectious poisons.
‘ Malignantly * implies certainly a sort of general malice and very strong evidence
must certainly be given to prove this malignity or wantonness in the publication
of the pamphlet and the whole poem must be considered (p). Where a pamphlet
was written in a very provoking style and published on the Id-day, the Bombay
High Court held that the natural and probable result of reading &uch a pamphlet
would cause the offence of rioting to be committed and the distribution of such a
pamphlet would render the person liable to punishment under^ this section (q).
Where the accused, who were Mahomedans, formed themselves into a procession,
and proceeded along a certain route at the time another procession of Hindus was
passing in the opposite direction along the same route as settled by the authorities
and it resulted in a riot, held that in refusing to comply with police orders, the
accuseds’ act amounted to an offence under this section (r).

153-A. Whoever by words, either spoken or written, or by
„ signs, or by visible representations, or other-

between classes. wise, promotes or attempts to promote

feelings of enmity or hatred between different
classes of Her Majesty’s subjects, shall be punished with impri-
sonment which may extend to two years, or with fine or with both.

Explanation. — It does not amount to an offence within the
meaning of this section to point out, without malicious intention
and' with an honest view to their removal, matters which are pro-
ducing or have a tendency to produce feelings of enmity or hatred
between different classes of Her Majesty’s subjects.

Legislative changes i — This section was added by s. 5 of the Indian
Penal Code Amendment Act IV of 1898.

This section does not punish honest criticism but punishes * promotion of
class-hatred. ' This section was enacted to supplement the law of sedition.

M It appears to us that the offence of stirring up class-hatred differs in many
important respects from the offence of sedition against the State. It comes more

(o) Abdullah , (1919) 17 A. L. J. 200: 20 Cr. L. J. 216: 49 I. C. 776.

(p) Kahanji Dharatnadasi, (1893) 18 B. 758, following the Dean of. St. Asaphs'
Case 21 Howell's St. Tr. 847 (1002).

(q) Rakimtalli Mahommadali Multa, (1919) 22 Bom. L. R. 106: 22' Cr. L. J.
613 : 02 1. C. 401.

(r) Gularn Kadir Saheb . (1927) 30 Bom. L. R. 307: A. I. R. (1928) B. 156.

262

THE INDIAN PENAL CODE

[CHAP. VIII

appropriately in the Chapter relating to offences against the public tranquillity.
The offence only affects the Government or the State indirectly, and the essqpce
of the offence is that it predisposes classes of the people to j^ction which may
disturb the public tranquillity. The fact that this offence is punishable in England
as seditious libel is probably due to historical causes, and has nothing to do with
logical arrangement " (s).

Procedure : — Non-cognizable— ' Warrant*— Not bailable—Not ctmpoundable—
Triable by Presidency Magistrate or Magistrate of the first class.

Sanction : — No Court shall take cognizance of an offence under this section
unless upon complaint made by order or under authority from the Government (t).

Charge I (name and office of Magistrate , etc.) hereby charge you ( name
of the accused ) as follows : —

That you, on or about the day of , at (specify

the occasion) by speaking (or writing) the following words, namely (words com-
plained of) or published in namely, (or by signs or visible representation, namely,)
promoted (or attempted to promote) feelings of enmity or hatred (between
specify the classes) of His Majesty's subjects and thereby committed an offence
punishable under 153-A of the Indian Penal Code, and within my cognizance.

And I hefcby direct that you be tried on the said charge.

Evidence^-of the intention of the accused and also to prove that the allega-
tions are based on facts and not on rumour is relevant (u). Where the accused was
prosecuted in respect of a pamphlet called Rangila Rasul of which he was the author,
held , evidence to show that the contents of the pamphlet are true or believed by the
accused to be true would be relevant also on the question of sentence to be passed
in the event of conviction (v).

Order under section 108, C r. P. Code : — A person who is found on one
occasion only circulating notices which may have the effect of promoting enmity
between classes may possibly be prosecuted under this section but he cannot be
proceeded under s. 108, Cr. P. Code (w).

Order under s. 106, Cr. P. Code : — The Select Committee while amending
s. 106, Cr. P. Code, has made an exception in the case of s. 153-A, as also s. 154,
1. P. C., and the amendment has in effect overruled the case of Ruhimatullah (w 1 )
which followed Hussain Baksh's case (x).

Order under Ss. 99-A & 99-B Cr. P. Code : — In order to justify forfeiture
under s. 99-A, Cr. P. Code, it is necessary for the Government Advocate to satisfy
the Court that on the evidence advanced by the prosecution a conviction could have
been held under s. 153-A (y).

Effect of order of High Court under Ss. 99-A & 99~B, Cr. P. Code : —
Dalai, J., held in Kalicharan Sarma's case (z) that the decision of the High Court
on the application under s. 99-B was relevant and admissible under Ss. 1 1 and 13
of the Evidence Act.

(s) Gazette of India, 1898, Part V, p. 13.

(t) S. 196, Cr. P. Code.

(u) Raj Pal, (1925) 7 L. 15.

(v) Ibid.

(w) Chiranji Lull, (1928) 50 A. 854.

(wi) (1919) 22 Bom. L. R. 166 (178).

(x) (1907) 29 A. 569.

(y) f Lajpat Rai, (1928) 9 L. 663 (666) 5, 29 P. L. R. 385 5 (B) : 29 Cr. L. J. 899 i
following P. K. Chakrabarty , (1926) 54 C. 59.

(z) (1927) 50 A. 157 (F. B.).

SEC. 153-a] of offences against the public tranquillity 263

Scope r-There must clearly be an intention to promote or attempt to promote
feelings or enmity between different classes of His Majesty’s subjects, in order to
constitute an offence under this section (a).

Dalip Singh, Jh, in Raj Paul's case (b) held that this section is intended to pre-
vent persons from making attacks on a particular community as it exists at the present
time and is not meant to stop polemics against deceased religious leaders (the
Prophet of Islam), however, scurrilous and in bad taste such attacks might be and the
fact that the followers of such a leader happen to be quick to resent an insult to their
leaders makes no manner of difference. The acquittal of the accused in Raj
Paul's case created a sensation. Another article appeared in the middle of April,
1927, m a monthly vernacular journal, entitled the 4 Risala-i-Vartman \ in Amrit-
sar. The article was in extremely bad taste, scurrilous in nature, and was a
disgusting satire on certain incidents in the life of the Holy Prophet of Islam.
The Lahore High Court held that the writing of a scurrilous and foul attack on
such a religious leader would fall within the ambit of this section, although it was
not correct that any criticism of a religious leader, whether dead or alive, falls
under this section (c).

A violently abusive and obscure diatribe against the founder or prophet of a
religion or against a system or religion may amount to an attempt to stir up hatred
or enmity against the persons who profess that religion (d).

The moral turpitude is always involved in the commission of an act which
comes within this section and an advocate convicted under this section may be
removed from the Rolls of Advocates (e).

‘Promotes enmity or hatred between different classes of Her Majesty’s
subjects’ : — The chief ingredient of an offence under this section is the intention
to promote hatred or ill-will between the several classes. Such an intention must
of course be inferred from the nature of the words used, their effect upon the class
referred to and the effect it was likely to produce upon it. In a case from Punjab
a constable died of a fall from a horse due to laceration of the brain and haemorrhage
and the editor of the “ Punjabee " suggested in his paper that the man died from a
kick given by a European Police Superintendent. This passage appeared in the
paper : " How many poor Indians have been mercilessly launched into eternity in
the past for being mistaken for boards and monkeys or for having so called enlarged
spleens,” the editor and publisher of the paper were convicted under this section (0*

Where the editor of another newspaper wrote against both ” Babus and Miahs”
as robbing the poor and against the Christian Missionaries as not being free from
colour prejudice, the Calcutta High Court held the article to be foolish but not
intended to arouse class hatred (g).

Where a newspaper (Forward) published an account of a Railway accident in
the shape of a letter, to the effect that certain Europeans belonging to the staff of the
E. B. Railway ordered injured passengers to be beaten to death and had their bodies
thrown up in a heap into a wagon and that in this way the number of persons killed
in the accident was increased to 300 of whom 50 p, c. were done to death with iron
rods under the direct orders and immediate presence of the European members of

(a) Sithal Prasad , (1916) 43 C. 691 : 20 C. W. N. 199 : 23 C. L. J. 195 : 17 Cr.
L. J. 264 : 34 I. C. 974, distinguished in P. K. Chakrabarty, (1926) 64 C. 59.

(b) 9 L. L. J. 379 : 28 Cr. L. J. 721 : 103 I. C. 769.

(c) Devi Sharan Sharma, (1927) 28 P. L. R. 514 104 I. C. 738 : 28 Cr. L. J.

794.

(d) Kali char an Sarma , (1927) 49 A. 856.

(e) In the matter of Mr . Tasadduq Ahmed Khan Bar-at-law, (1920) 44 A. 351 :
20 A. L. J. 200 : 23 Cr. L. J. 128: 65 I. C. 560: A. I. R. (1922) All 140 (F. B.).

(f) J as aw ant Rat, (1907) P. R. No. 10 of 1907.

(g) Joychandra Sarkar t (1910) 38 C. 214; 12 Cr. L. J. 348 : 10 I. C. 948.

264 THE INDIAN PENAL CODE [CHAP. VIII

the Railway staff, held that the real intention of the accused was the real test and they
were held guilty (h).

Intention ' The Court in every case is concerned with the meaning of the
writing and not with the intention of its writer. Intention is in fhis view the subject
of criminal proceedings for direct sedition against persons under s. 124- A or in-
direct sedition under s. 153- A (i).

The essence of an offence under this section is malicious intention. If there is
nc malicious intention in the publications, honesty of purpose may be inferred (j).
This decision followed P. K. Chakrabarty s case (k) where it was held that th^ mere
publication of words having a tendency to promote class hatred is not sufficient to
constitute the offence under this section. It must be the purpose, or part of the
purpose, of the publisher to promote or attempt to promote feelings of enmity be-
tween different classes. The intention to promote such feelings is to be gathered
generally from the language itself but other evidence of it is admissible. The inten-
tion of the writer is to be judged not only from the words used in a certain
part of the drama but from the drama as a whole (1).

The word ‘classes’ in this section includes any definite and ascertainable
class of His Majesty’s subjects ; although the classes may not be divided on racial or
religious grounds. ‘ Capitalists ’ is altogether too vague a phrase to denote a
definite and ascertainable class so as to come within s. 153-A (m).

The word ‘ classes ’ includes races, e.g., Europeans and Indians (n).

Explanation : — The Explanation does not enlarge the provisions of the sub-
stantive section. In considering the ‘explanation* Courts have held what the Judicial
Committee in Beasanfs case (o) has called “ a delicate balancing of two important
political considerations.” In applying these balancing principles it is inevitable that
different minds may come to different results (p).

154. Whenever any unlawful assembly or riot takes place
the owner or occupier of the land upon which

i a „°d' V on wh°c C h Cl an er un- ? uch unla . wfu j assembly is held, or such riot
lawful assembly is held, is committed, and any person having or
claiming an interest in such land, shall be
punishable with fine not exceeding one thousand rupees, if he
or his agent or manager, knowing that such offence is being or
has been committed, or having reason to believe it is likely to
be committed, do not give the earliest notice thereof in his
or their power to the principal officer at the nearest police-
station, and do not, in the case of his or their having reason to
believe that it was about to be committed, use all lawful means

(h) P. K. Chakrabarty, (1920) 54 C. 59.

(i) In the matter of the Amrita Bazar Patrika, Ltd.., (1919) 23 C. W. N. 1067
(1069): 30 C. L. J. 280.

(j) Hemendra Prosad Ghosc, (1920) 31 C. W. N. 108 : 45 C. L. J. 432 ; Raj Paul,
(1925) 7 L. 15 (16).

(k) (Forward case) : (1920) 54 C. 59: 30 C. W. N. 953 : 44 C. L. J. 172 :
A. I. R. (1920) C. 1133.

(l) Iswari Prosad Sharma, (1927) 40 C. L. J. 154.

(m) Per Beaumont. C. J., in Maniben Kera, (1932) 34 Bom. L. R. 1642 (1048):
34 Cr. L J. 231 : 141 I. C. 780.

(n) Jaswand Rai, 10 P. It. 1907 Cr.

(o) Annie Beasant V. Advocate General of Madras, (1919) 40 I. A. 176: 43 M.
146 (163) (P. C.).

(p) Satya Ranjan Bah ski, (1929) 56 C. 1090.

SEC. 154] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY 265

in his or their power to prevent it and, in the event of its taking
place, do not use all lawful means in his or their power to dis-
perse or suppress the riot or unlawful assembly.

Unlawful assembly — s. 141. Riot — s. 146.

Reasons to believe — s. 26.

This section punishes owners or occupiers of land on which an unlawful
assembly is held.

Analogous law : — This section is analogous to section 45, Criminal Proce-
dure Cocfe.

Scope : — A non-resident partner or co-sharer cannot be convicted under this
section. These sections apply to a resident sharer and to convict an absent sharer
who # has taken no active part in the management of the estate * seems to be
unduly stretching the law. Where there is no resident sharer, but only an agent
or manager, of course, the absentee owner might be held liable under some
circumstances (q).

Procedure : — Non-cognizable — Summons — Bailable — Non-compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Prosecution must be instituted without delay Prosecution for offences
under Ss. 154 and 155 should not be stale. The object of the law seems to be to
impress upon landholders their responsibilities and obligations in respect of
riots or unlawful assemblies committed under the circumstances mentioned in
those sections and in order to attain the object in \iew, it is necessary that
prosecutions in respect of such offences should be instituted without delay so as to
be wholesome warnings not only to the persons concerned but also to others (r).

Conviction must be based on evidence : — The owner or occupier of land on
which the unlawful assembly is held, cannot be convicted under this section, unless
there is evidence to show that the accused had any influence or that he wilfully
kept out of the way leaving the riot to take its own course fs).

The records of another case is inadmissible in evidence (t).

The Court must act on proof and not on mere surmise (u).

In order to establish an offence under this section the prosecution must prove
(1) that a riot took place, (2) that the accused is the owner of the land on which the
riot took place, (3) that the agent or manager knew that the riot was about to be
committed and (4) that knowing this the agent or manager did not use all lawful
means to suppress the riot or disperse the unlawful assembly (v).

The charge, if necessary, should run as follows : —

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name

of the accused) as follows : —

That you, for your agent or manager) on or about the day of ,

at f knowing (or having any reason to believe) that an assembly of five

or more persons, the common object of which was to , was likely to be

(or was being or had been) held on certain land situated at of which you

are the owner (or occupier) (in charge under section 155) or in which you have a

(q) In re. Radhanath Chowdhury , (1880) 7 C. L. R. 289 (290).

(r) Eskak Mea, (1902) ; Sarat Chandra Saha Chowdhury , (1902) 7 C. W. N. 301 :
7 C. W. N. 245.

(s) Suroop Chandra Pul t (1869) 12 W. R. (Cr.) 75.

(t) Prayag Singh , (1890) 12 A. 560.

(u) C. G. D. Betts and Mahomed Ismail (1871) 6 B. L. R. App. 83, (Cr). 15

W. R. 6.

(v) Tarakanta Dos, 4 C. W. N. 691 (692).

266

THE INDIAN PENAL CODE

[ CHAP. VIII

claim or interest as in the land and that force or violence was likely to be

(or was being or had been) used in the prosecution of the object of theassembly,
did not give the earliest notice thereof in your (or his) power, to the principal officer

at the police station , the nearest police station, and did not use ail lawful

means in your (or his) power to prevent it (or disoerse or suppress the riot or unlaw*
ful assembly) and that you thereby committed an offence punishable under s. 154
(or s. 155) of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Owner or occupier of the land upon which unlawful assemblyjb held t-

The owner or occupier of a house within a village is not an owner or occupier of land
within the meaning of s. 45, Criminal Procedure Code (w).

4 Knowing that such offence committed 9 : — Knowledge of the land-

holder, or of his agent, is the first essential element of the offence under this section.
After knowledge, comes his duty to prevent or suppress riot (x). The section
prescribes a penalty for three different branches of duty, (a) omission to give notice,
(£) abstention from preventing it, (c) negligence to suppress it (y). But in subsequent
cases, the Calcutta High Court has held that knowledge is not an essential ingredient
of an offence under this section and the landholder may be convicted for any derelic-
tion of duty as imposed under this section on the part of their agents independently
of any knowledge of the acts of his agent or manager (z).

Use all lawful means to prevent unlawful assembly or riot from
taking place : — A Zamindar ought not be made liable under s. 155 for a sudden
and unpremeditated riot which there was no reason to infer he could have anticipated
or thought likely to happen (a).

Agent or manager s — Under this section the owner or occupier of the land or
any person having or claiming an interest in the land, is liable for an unlawful assem-
bly or riot. Where it was shown that purdanashin ladies had the management of
the estate and were responsible for the appointment of the naib who had fomented
the riot, held that the ladies were liable to conviction and not the adopted sons who
had nothing to do with the appointment of the naib (b).

155. Whenever a riot is committed for the benefit or on
Liability of person behalf of any person who is the owner or
for whose benefit riot occupier of any land respecting which such
is committed. riot takes place or who claims any interest

in such land, or in the subject of any dispute which gave rise to
the riot, or who has accepted or derived any benefit therefrom,
such person shall be punishable with fine, if he or his agent or
manager, having reason to believe that such riot was likely to be
committed or that the unlawful assembly by which such riot was
committed was likely to be held, shall not respectively use all
lawful means in his or their power to prevent such assembly or
riot from taking place, and for suppressing and dispersing the
same.

(w) Achuthe, (1888) 12 M. 92

(x) Suroop Chandra Paul , (1869) 12 W. R. (Cr.) 75.

(y) Harendra Lai Roy , (1904) 8 C. W N. 908.

(z) Kazi Zeamuddin , (1901) 28 C. 504 ; Tarakanta Das , (1899) 4 C. W. N. 691.

(a) Haranatk Roy\ (1865) 3 W. R. (Cr.) 54.

(b) Shiva Sundari Chowdhurani, (1912) 39 C. 834.

SECS. 156-57] OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY

267

This section makes liable a person for whose benefit a riot is committed,
whereas s. 1 54 punishes the owner and occupier of land on which an unlawful
assembly or riot takes place.

Procedure Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class —
Triable summarily.

Where it is admitted that the accused had no property in the land, and that the
mother of the petitioners and the wife of one petitioner had interest in the land, the
Calcutta High Court held that it was not established that the accused were claiming
an interest in the land and accordingly set aside the conviction and sentence under
s. 155 (c).

A conviction in respect of a riot which occurred not in respect of the ^Aa/yam
itself, but with respect to the right to collect rent from the tenants under Ss. 154 and
155 is tenable (d).

A conviction of an absent co-sharer under this section was set aside where
it was shown that he did not take any active part in the management and that
a resident co-sharer had already been convicted under this section (e).

156. Whenever a riot is committed for the benefit or on

,. ...., . . , behalf of any person who is the owner or

Liability of agent of . r *i i • i • 1 1

owner or occupier whose occupier or any land respecting which such

benefit riot is commit- r J 0 t takes place, or who claims any interest
in such land, or in the subject of any dis-
pute which gave rise to the riot, or who has accepted or derived
any benefit therefrom, the agent or manager of such person
shall be punishable with fine, if such agent or manager,
having reason to believe that such riot was likely to be
committed, or that the unlawful assembly by which such riot
was committed was likely to be held, shall not use all lawful
means in his power to prevent such riot or assembly from taking
place and for suppressing and dispersing the same.

The language of this section is the same as that of s. 155 with this modification
that section 156 punishes the agent or manager.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

In a case under Ss. 155 and 156 in which formidable powers are entrusted to
magistrates, the Court must always act upon proof and not on mere surmises (0*

In order to convict a person under this section it must be shewn by legal evi-
dence (I) that * riot has been committed (2) that the riot, if committed, was com-
mitted for the benefit of the accused ; and (3) that the accused had reason to believe
that a riot was likely to be committed (g).

157. Whoever harbours, receives or assembles in any
Harbouring persons house or premises in his occupation or

hired for an unlawful charge, or under his control any persons,
8586111 y ' knowing that such persons have been hired,

(c) Promotha Nath Roy Chowdhury, (1013) 17 C. W. N. 1247 : 15 Cr. L. J. 191 :
22 I. C. 767.

(d) Doma Sahu, (1018) 2 Pat. L. J. 83 : 18 Cr. L. J. 447 : 38 I. C. 1007.

(e) Harendra Lai Roy, (1904) 8 C. W. N. 908.

(f) Per Stanley, J., in Tarakant Das, (1900) 4 C. W. N. 601 (692).

(g) Brae, (1883) 10 C. 338, followed in Tarakant Das, (1900) 4 C. W. N. 691.

268

THE INDIAN PENAL CODE

[CHAP. VIII

engaged or employed or are about to be hired, engaged or
employed, to join or become members of an unlawful assembly,
shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine or with
both.

This section is wider than s. 156, as it provides for an occurrence that may
happen and makes the harbouring, receiving or assembling of persons, who are likely
to be engaged in an unlawful assembly, an offence (h). S. 157 contemplates the im-
minence of an unlawful assembly and the proof of facts which go to constitute an
unlawful assembly whereas s. 150 contemplates the existence of an unlawful assem-
bly (h). This section came into prominence in 1930 when Civil Disobedience
Movement was started. The executive officers of the District called upon the
landlords to show cause under this section why they had let out their premises to
a Congress office or a place where Congress volunteers were working so that the
volunteers could not find a place of shelter, and succeeded in stopping these orga-
nisations. Now the accused persons thus called upon could successfully take the
plea that they did not harbour any such persons in their premises knowing that
such persons had been hired, engaged or employed to join or become members of
an unlawful assembly and they were entitled to an acquittal, if after a notice under
this section, they had asked the volunteers to vacate their premises but the
volunteers did not vacate. To meet the difficulty in the existing law Ordinances
had to be passed.

Procedure : — Cognizable — Summons — Bailable — Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first or second class or may be
tried summarily.

Scope : — Mere harbouring will not do. Hiring or employing must be
proved before conviction (i). This section clearly refers to some unlawful assembly
in the future. It provides for an occurrence which may happen not which has
happened (j).

Harbours, receives or assembles, etc. Where the magistrate found that
the accused had collected and harboured men for the purpose of committing a riot
the High Court acquitted the accused as he could not be convicted for a mere pre-
paration (k).

Hired, engaged or employed to join or become members of an unlaw-
ful assembly To support a conviction under this section it must be shown that
for the purposes of an unlawful assembly the accused has hired or engaged, or em-
ployed other persons. It is not sufficient to find that some of the servants of the
accused had been recruited from a district where the men have a well-known charac-
ter as lalhials and they had been in his service for some time before a riot took
place (1). ■.<#

158. Whoever is engaged or hired, or offers or attempts
Being hired to take to be hired or engaged, to do or assist in doing
part in an unlawful any of the acts specified in section 141, shall
assembly or not ; k e punished with imprisonment of either

description for a term which may extend to six months, or with
fine, or with both ;

(h) Ram Lochan Sarkar, (1001) 29 C, 214 (217) : 6 C. W. N. 143.

(i) Samuel Aron, (1931) M. W. N. 320.

(j) Radharaman Saha , (1931) 35 C. W. N. 720.

(k) Ram Lochan Sarkat , (1001) 49 C. 214.

(J) In the matter of Radhanath Chowdhury, (1880) 7 C. L. R. 280 (290).

SEC. 159 ] OF DEFENCES AGAINST THE PUBLIC TRANQUILLITY

269

and whoever, being so engaged or hired as aforesaid, goes

or to go armed. ar . m L ed > % “JP* 8 * 8 0f offerS *> 8° at ^

with any deadly weapon or with anything
which used as a weapon of offence is likely to cause death,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with
both.

This section punishes hirelings, who take part in an unlawful assembly or riot,
or being so engaged go about armed.

Procedure : -Cognizable Summons -Bailable — Not compoundable — Tri-

able by Presidency Magistrate or Magistrate of the first or second class — triable
summarily (if the offence falls under second part — Warrant ; other procedure same
as under first part).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of the accused ) as follows : —

That you, on or about the day of , at , were

engaged (or hired by ) or offered (or attempted to be hired or engaged )

to do or assist in doing any of the acts specified in s. 141 (specify the act) [under
2nd clause add (went armed or engaged or offered to go armed)] with a deadly weapon

to wit (or with a thing which used as a weapon of offence was likely to

cause death), and thereby committed an offence punishable under s. 158 of the
Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

159. When two or more persons, by fighting in a public place,
disturb the public peace, they are said to
commit an aftray.

Affray : — The definition of affray corresponds with the definition in English

law.

An affray is an offence against the public peace because it is committed in a
public place. If it involves five or more persons, it may amount to a riot if it was
premeditated , otherwise it is still an affray irrespective of the number ; but an ‘affray*
differs from a riot inasmuch as it cannot be committed in a private place and it
does not require five or more persons and is sudden and not premeditated (m).

There is no ground for a distinction between an unlawful assembly as a pre-
meditated act and an affray as a sudden one (n).

Scope : — The gist of the offence consists in the terror it causes to the
public (o).

What is a public place A public place is a place where the public go, no
matter whether they have a right to go or not. Many shows are exhibited to the
public on private property, yet they are frequented by the public — the public go
there (p). A Chabutra which was neither a place to which the public had a right
of access, nor a place to which the public were ever permitted to have access, was
not, though it adjoined a public road, a 4 public place * within the meaning of this

(m) l Hawk C. 28 secs. 1 and 3. "

(n) LokenathKer, 18 W. R. (Cr.) 2.

(o) Babu Bam, 53 A. 229 (232) : (1931) A. J, 801.

(p) Wellard , (1884) 14 Q. B. D. 63 (66, 07) ; Hari Singh v. Juduuavdan , (1903)

31 C. 642. r v

270

THE INDIAN PENAL CODE

[CHAP. VIII

section (q). A public urinal (r), the back part of a House in London (s), an omni-
bus (t) and a Railway platform (u) have been held to be public places.
The Madras harbour is a place of public resort within the terms of 8. 75 of
the Madras City Police Act. Harbour premises have been held to be a public place
as a public place is one where the public go, no matter whether they have a right
to go or not (v). An open space to which the public has easy access is a * public
place * within the meaning of this section (w). The goods yard is a public place.
The public may have a limited right of access, but, as a fact, no one is prevented from
going inside the yard (x). An ordinary exchange of abuse in a public street where
neither side is armed and no blows are struck is an offence too trivia) to take
notice of (y).

160. Whoever commits an affray, shall be punished with
_ . . . imprisonment of either description for

mining affray. a te f m which may extend to one month,

or with fine which may extend to one hun-
dred rupees, or with both.

This section prescribes a punishment for the offence described in 8. 159.

Scope : — The section postulates the commission of a definite assault or breach
of the peace (z).

Procedure : — Non-cognizable — Summons— -Bailable Not compoundable

Triable by any Magistrate and may be tried summarily.

The evidence required to prove an affray must show

(a) that there was a fight, (b) that it was in a public place and (c) that it
led to the breach of the public peace (a).

In an ‘ affray * specific evidence as to the acts of each fighter cannot be expected,
but only general evidence as to the accused taking part in it, and the place in which
the fight took place and in whose interests the fight took place were held to be just
as blameworthy as the men who struck the blows (a).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you, on or about the —day of , at , by fighting

with each other (or with ) in a public place to wit , disturbed

the public peace and thereby committed an offence punishable under section 160
of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Conviction was held bad where there was no finding as to common intention (b).
Where two factions engage in a fight, and injuries are caused to persons on both
sides, and it is not proved who actually caused the injuries, and there is no proof of

(q) Sribal, (1895) 17 A. 166. ~~~

(r) Harris , (1871) L. R. 1 C. C. R. 282.

(s) Thallman , (1864) 33 L. J. N. S. M. C. 58.

(t) Holmes , (1853) 22 L. J. (M. C.) 122.

(u) Davis , (1857) 26 L. J. Ex. 393.

(v) Govindarajula , (1915) 39 M. 886 following Wellard , (1884) 14 Q. B. D. 63.

(w) Musa Sekhram , (1916) 40 M. 556 following Hari Singh, (1904) 31 C. 643.

(x) Cowasji, v. G. J. P. Railway , (1902) 26 B. 609.

(y) Atma Singh , (1926) 8 L. L. J. 82 : 27 P. L. R. 276 ; 27 Cr. L. J. 696 : A. I. R.
(1926) L. 412.

(z) Ganesh Das, A. I. R. (1928) L. 813 (1).

(a) Meher Sheikh, (1893) 21 C. 392.

(b) Joharaddin Sdrkar, (1904) 31 C. 715 : 8 C. W. N. 910,

SEC. 161 ] OF OFFENCES B¥ OR RELATING TO PUBLIC SERVANTS 211

common intention, a conviction under 8. 323 on the presumption that some person
must have caused the hurt cannot be maintained ; the proper conviction would be
under this section (c).

Plea of autrefiois acquit Offence under this section is distinct from an
offence under s. 323 and a conviction under s. 160 on a prosecution initiated by the
police would be no bar to a subsequent trial under s. 323 on a complaint laid by the
party injured (d). Following Manhari's case (e), it was held in Kullasans case (f)
that an acquittal on a charge under this section bars subsequent trial on the same
facts for an offence under s. 61(o) of the Bombay District Police Act, I860.
But the same High Court in the case of In re. Dodhu Kalu Mahars case (8)
distinguished Kullasan s case (f). The Madras High Court, however, has held that a
conviction under this section would not bar the prosecution under Ss. 147 and 323,
by virtue of s. 403 (2), Cr. P. Code, where the offences of rioting and hurt were
committed in the same transaction (h).

CHAPTER IX.

Of Offences by or relating to Public Servants.

This Chapter deals with offences committed by and in relation to public servants.

The Authors of the Code observe “ Those offences which are common

between public servants and other members of the community are left to the general
provisions of the Code. If a public servant embazzles public money, he is left to
the ordinary law of criminal breach of trust. If he falsely pretend to have dis-
bursed money for the public and by their deception induces the Government to
allow it in his accounts, he is left to the ordinary law of ‘ cheating.* If he produces
forged vouchers to back his statement, he is left to the ordinary law of ‘ forgery.*

" We see no reason for punishing these offences more severely than when pri-
vate people suffer. A Government, indeed, which does not consider the sufferings
of private individuals, and every act of dishonest spoliation which tends to render
insecure in the enjoyment of their wealth is really an injury to the revenue. On
every account, therefore, we think it desirable that the property of the State should,
in general, be protected by exactly the same laws, which are considered as sufficient
for the protection of the property of the subject ” (i).

161 . Whoever, being or expecting to be a public servant,
accepts or obtains, or agrees to accept, or
attempts to obtain from any person, for
himself or for any other person, any grati-
fication whatever, other than legal remunera-
tion, as a motive or reward for doing or
forbearing to do any official act or for showing or forbearing to
show, in the exercise of his official functions, favour or disfavour
to any person, or for rendering or attempting to render any service

Public seivant taking
gratification other than
legal remuneration in
respect of an official act.

(c) Sabir Hussain , (1921) 19 A. L. J. 487 : 22 Cr. L. J. 621 ; 63 1. C 157

(d) Ram Sukh t (1924) 47 A. 284.

(e) 46 C. 727.

(f) (1927) 29 Bom. U R. 1478.

(g) (1929) 31 Bom. L. R. 922.

(h) Srseyamulu, (1924) 47 M. 61.

(i) Note £.

272

THE INDIAN PENAL «ODE

[ CHAP. TX

or disservice to any person, with the Legislative or Executive
Government of India, or with the Government of any Presidency
or with any Lieutenant-Governor, or with any public servant,
as such, shall be punished with imprisonment or either descrip-
tion for a term which may extend to three years, or with fine, or
with both.

Explanations . — “ Expecting to be a public servant.” If
a person not expecting to be in office obtains a gratification by
deceiving others into a belief that he is about to be in office,
and that he will then serve them, he may be guilty of cheating,
but he is not guilty of the offence defined in this section.

“ Gratification.” The word “ gratification ” is not re-
stricted to pecuniary gratifications, or to gratifications estimable
in money.

“ Legal remuneration.” The words “ legal remuneration ”
are not restricted to remuneration which a public servant can
lawfully demand, but include all remuneration which he is per-
mitted by the Government, which he serves, to accept.

“A motive or reward for doing.” A person who receives
a gratification as a motive for doing what he does not intend to do,
or as a reward for doing what he has not done, comes within these
words.

Illustrations.

(<?) A , a minis if, obtains from Z, a banker, a situation in Z's bank for A 's brother,
as a reward to A for deciding a cause in favour of Z . A has committed the offence
defined in this section.

(b) A, holding the office of resident at the Court of a subsidiary Power, accepts
a lakh of rupees from the Minister of that Power. It does not appear that A accepted
this tfum as a motive or reward for doing or forbearing to do any particular official
act, or for rendering or attempting to render any particular service to that Power
with the British Government But it does appear that A accepted the sum as a
motive or reward for generally showing favour in the exercise of his official function
to that powder. A has committed the offence defined in this section.

ic) A, a public servant, induces Z erroneously to believe that A’s influence with
the Government has obtained a title for Z, and thus induces Z to give A money as a
reward for this service. A has committed the offence defined in this section.

Scope : — This section deals with the acceptance by a public servant of an
illegal gratification or bribe “ as a motive or reward for doing or forbearing to do
any particular official act, or for showing or forbearing to show in the exercise
of his official functions, favour or disfavour to any person/' Under the Code
the person who offers a bribe to a public servant is treated as the abettor of an
offence created by this section. If the bribe is accepted, the public servant is
punishable under s. 161 and the giver of the bribe under that section read with
s. 109. If the bribe is not accepted, the public servant commits no offence, but
the person who offers the bribe is still punishable under this section read with

8. 1 16 G).

.... . .. i jL . —

(j) Pet Richardsou, J., in Snlal Chatnaria, (1918) 46 C. 607 : 220. W. N. 1064
(1049, 1060).

*

SEC. 161] OF OFFENCES BY OK RELATING TO PUBLIC SERVANTS 273

To constitute an offence under this section,a firm offer to pay money being
sufficient, it is not necessary that the illegal gratification should actually have been
produced, nor is it essential that the person to whom the firm offer was made should
have accepted it (k).

In Ramachandriah's case (1), Wallace, J., observed: “The wording of the
section is clumsy ” and in a later decision (m), Couts Trotter, C. J. t pointed out the
necessity for amendment of this section and observed that there is no provision for
the bribing of anybody except a public official and no provision at all corresponding
to what is known in England as Fry’s Act (Prevention of Corruption Act, 1906.
VI Edw. 7, c. 34).

Essential ingredients of the offence of bribery : — (I) The receiver of the
bribe must be a present or expectant public servant, (2) he must solicit or obtain
an illegal gratification, (3) it must have been given or received as a motive or reward
for doing any official act or forbearing to do it in the exercise of official functions —
otherwise it is extortion. Where a village headman, finding a certain person setting
cocks to fight near a public road, threatened them with a prosecution unless Rs. 20
were paid to him, and Rs. 15 was paid to him by the complainant as a consideration
for not prosecuting him, held that the offence proved amounted to extortion and this
section was inapplicable (n).

When a bribe has been given, it is immaterial to enquire what, if any effect, the
bribe had on the mind of the receiver (o).

* Procedure : — Non-cognizable— Summons — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Sanction : — Sanction of Government is necessary for the prosecution of a
4 Judge ’ within the meaning of s. 19 of the Penal Code and public servants not
removeable from their office except by or with the sanction of a Local Government
or some higher authority (p).

In U. P. sanction is not necessary for prosecuting an Excise Inspector (q), but
a village munsif is a 4 Judge ’ and sanction is necessary (r). Sanction under s. 197,
Cr. P. Code, need not be based on legal evidence (s).

Proof : — The prosecution must prove not only that the accused took the money
but it must be proved that he took the sum of money 44 as a motive or reward for
doing or forbearing to do an official act ; or for showing or forbearing to show in the
exercise of his official functions, favour or disfavour to any person or for rendering
or attempting to render any service or disservice to any person ” ft).

It is not necessary to show that as a matter of fact favour was shown to the
person who offered the bribe. It is sufficient if he is led to believe that the decision
would go against him if he did not give the judge a present (u). This section re-
quires proof that an official has obtained a motive or reward for official conduct
an illegal gratification for himself or another (v).

In order to charge a public servant with having taken bribes or to charge him
with having taken bribes or to charge him with having committed any other offence,

(k) Ajuddhia Prosad , (1928) 51 A. 467: 27 A L. J. 153.

(l) (1927) 51 M. 86 : 53 M. L. J. 723 : (1927) M. W. N. 764.

(m) Venkatarama Naidu, (1929) 57 M. L.J. 239.

fn) NgaKhn Tha , (1912) 20 I. C. 237 : 14 Cr. L. J. 413.

(o) Indranath Banerjee v. E. G . Rooke , (1909) 14 C. W. N. 101 (Civil Appeal).

(p) S. 197 of the amended Code of Criminal Procedure of 1923.

(q) Jaluddin , (1925) 48 A. 264 : 24 A. L. J. 230: A, I. R. (1926) A. 271.

(r) In re. Pera Subba Naidu , (1928) 56 M. L. J. 600.

(s) AH Hussain Khan V. Harcharan Das , (1921) 3 L. 305.

(t) Upendranath Chowdhury , (1916) 21 C. W. N. 552 (552, 553),

(u) Bhimrao , (1924) 27 Bom. L. R. 120.

(v) Bkagwan Das, (1907) 31 B. 335 (342).

24

274

THE INDIAN PENAL CODE

[ CHAP. IX

the evidence brought forth must be conclusive (w). Proof that the money was
borrowed by the man who is alleged to have paid the bribe shortly before the
alleged payment does not show payment (x). In a case under thi$*section it is not
necessary for the prosecution to show how the illegal gratification came to be
demanded or obtained so long as it can be clearly established by evidence that it
was obtained (y).

Testimony of accomplices : — Although conviction upon such testimony
is not illegal, it is unsafe to base a conviction upon it (z).

A Full Bench of the Madras High Court has held that the evidence of an
accomplice need not be corrobotated in material particulars fa), but the Calcutta
High Court has held a contrary view in Lai it Mohan Chakrabartys case (b).

The payer of a bribe may or may not be an abettor but he is in every case an
accomplice (c). Where an informer was, upon his own statement, cognizant of the
commission of an offence and omitted to disclose it for six days, the Court was not
prepared to say that he was an accomplice ; but held that his testimony was not such
as to justify a conviction except where it was corroborated (d). The cases in
which spectators have been treated as accomplices are cases of murder (e).

Where the complainant did not willingly offer bribe but the accused, a police
officer, demanded it, held that the circumstances were such as would justify a con*
viction on the testimony of accomplices with a much slighter degree of corro-
boration than are necessary if the accomplices were voluntary ones (if). *

Charge,;~^The charge under this section should state the nature of the office
held by the accused so as to make them public servants (g), and must state the name
of the person or persons for whom the gratification was obtained, or the public
servant to be influenced in the exercise of his public functions (h). A charge under
this section need not be in respect of every item received by the accused from the
several people for a common object useful to all (i).

Form of charge s — I (name and office of Magistrate , etc.) hereby charge
you (name of accused) as follows : —

That you , being a public servant in the Department,

directly accepted from [(state the name of the giver ) if received from another, add

from another party, namely ] a gratification other than legal remuneration,

as a motive for forbearing to do an official act, and thereby committed an offence
punishable under s. 161 of the Indian Pena] Code, and within my cognizance
(or of the Court of Session or the High Court).

(w) Mehr Ilahi, (191 1) P. W. R. No. 26 of 1911 (Cr.): 12 Cr. L. J. 485: 12
I. C. 93.

(x) In re Vyasa Rao, 21 M. L. J. 283 : (1911) M. W N. 327 : 10 M. L. T.

84 :14 Cr. L J. 150 : 9 r. C. 827.

(y) Toposhri Prasad, (1916) 15 A. L. J. 127 : 18 Cr. L. J. 317: 38 I. C. 429.

(z) Elahee Baksh, (1866) 5 W. R. (Cr.) 80 (F. B.).

(a) Mathu Kumarswami Pillai, 35 M. 397 (F. B.) ; see Ramsarup, (1929) 9 P.
608: A. I. R. (1929) Pat. 513; Bisseswar Dey, (1922) 26 C. W. N. 1010; Kesava
Pillai, (1929) 53 M. 160.

(b) (1921) 38 0.559(579).

(c) Mathers Martand, (1901) 26 B. 193 ; Doodhur Singh, (1889) 27 C. 144.

(d) Ishan Chandra, (1893) 21 C. 328 referred to in Deodhur Singh, (1899) 27
C. 144.

(e) Chandra Chandateenee, 24 W. R. (Cr.) 55.

(f) Deonandan Pershad, (1906 ) 33 C. 649: 10 C. W. N. 669: 3 Cr. L. J. 452,
see Chagan Dayatram, 14 B. 331.

(g) 5 W. R. (Cr. L.) 8.

.(h) Seetul Chandra Bagchi,. (1865) 3 W. R. (Cr.) 69.

(i) Giridharilal, (1911) P. L. R. No. 146 of 1911 : P. R. No. 11 of 1911 (Cr.)

P. W. R. No. 32 of 1911 (Cr ) : 12 Cr. L. J. 217 ; 10 I. C. 166.

SEC. 161 ] OF OFFENCES BY OH RELATING TO PUBLIC SERVANTS 275

And I hereby direct that you be tried (by the said Court) on the said charge.
See Criminal Procedure Code, Sch. V, Form XXVIII (3).

Joinder of charge: — Where the charge was under Ss. 109 and 161, their
Lordships of the Judicial Committee held that the accused having been charged
with no less than forty one acts, these acts extending over a period of two years, the
trial was held illegal and disobedience to an express provision of law was not a mere
irregularity (j).

Separate conviction : — There ought not to be separate convictions under
Ss. 161 and 165 where a certain sum of money is paid to a public servant as illegal
gratification on one day and a certain sum on another day (k).

Public servant : — See s. 21, supra . Whenever a person has received a bribe
passing as a public servant, he cannot plead the illegality of his appointment as a
defence to his criminality (1). Railway servants are public servants for the purpose
of offences under this Chapter (m). Every manager or other servant of the Court
of Wards under the Bombay Court of Wards Act, 1905, shall be deemed to be
a public servant within the meaning of this Chapter (n).

Gratification : — The word is not restricted to pecuniary gratification or to
gratification estimable in money — thus the word has been widely used to cover any
benefit or reward in order to influence a public servant to do or forbear from doing
any official act.

The mahars of a certain village having been suspended from their office for '
some months, a meeting of the villagers was held at the house of a patel who took
Rs. 300 towards the repair of the village for their restoration to office. The
Bombay High Court held that the bargain about reinstating the mahars in office
was 'connected with official functions and came within the words of this section
which deal with any gratification whatever other than legal remuneration (o).

The taking of a ‘ gratification * by a sheristadar to influence a principal Sudder
Ameen in his decisions, is sufficient for a legal conviction under this section whether
the Sheristader did or did not influence or try to influence the principal Sudder
Ameen (p). *

A convict warder who accepts gratification from a prisoner for smuggling
certain papers to some one outside the jail gate commits an offence punishable
under this section (q).

Motive or reward for doing s — The phrase 4 as a motive or reward *
evidently means “ on the understanding that the bribe is given in consideration of
some official act or conduct.** Such an understanding may be inferred from
circumstances (r). A motive or reward amounts to 4 bribe * if it is received
under the promise or on the understanding of an official favour or disfavour (s).

It is not the receipt of 4 gratification * alone that constitutes an
offence under this section. It is not enough for a conviction under this
section that a public servant (head-constable) in his official capacity took

(j) Subramania Aiyar , (1901) 25 M. 61 P. C. : 22 I. A. 257 : 11 M. L. J. 233 :

3 Bom. L. R. 540 : 5 C. W. N. 868.

(k) Jagat Chandra Sarma v. Lai Chand Das , (1901) 5 C. W. N. 332.

(l) Ramkristo Das , (1871) 16 W. R. (Cr.) 27.

(m) (1878) P. R. No. 9, see Indian Railways Act S. 137.

(n) Ss. 21 (2), Bom. Code, Act I of 1899, s. 19 (a), C. P. Code ; The A j mere
Government Wards Regulation, 1888 (I of 1888), s. 11 (2), Ai. Code; see Appaji,
21 B. 517 (520).

(o) Appaji bin Yadavarao, (1896) 21 B. 517 (520).

(p) Kaleecharan Sheristadar , (1865) 3 W. R. Cr. 10,

(q) Saifin Rasul , (1924) 26 Bom. L. R. 267.

(r) Bhagwan Das f (1917) 31 B. 335 (342).

(s) NgaKhan Tha t (1912) 20 I. C. 237.

276

THE INDIAN PENAL CODE

[CHAP. IX

a certain sum of money but it must be proved that he took the amount as a motive
or reward for any of the purposes mentioned in the section. The head-constable
was offered rupees two by a mehtor Madan on condition that the head-constable
would send for Madan's enemy and give him a thrashing and it was held that it
would certainly be showing disfavour in his official capacity and the conviction was
set aside by the High Court (t).

Where a constable and others enter a house and apprehend certain persons
as gamblers, and afterwards release them on payment of a sum of money by the
latter, the offence committed is not house-trespass and extortion but taking a bribe
as regards the constable and abetment of that offence as regards the others (u).

4 For himself or for another ’ r— The other person may or may not be an
official and therefore may be wholly unconnected with the official conduct. The
conduct which is contemplated as the consideration for the bribe must be that of
the official obtaining it (v).

Legal remuneration : — As to the meaning of the word 4 Government # in
the definition of 4 legal remuneration ’ for the purposes of certain enactments
extending the meaning of the expression 4 public servant * in the Code, see^ the
following acts (w).

Official Act : — To sustain a charge under this section, actual discharge of pub-
lic functions when receiving bribe is not required (x).

Offer of bribe Where S instigated K, a Bench clerk in the Court of M,
a Presidency Magistrate, to instigate the latter to accept an illegal gratification for
acquitting an accused in a case pending before M and for granting sanction
against the complainant in the case, and K received the gratification as a spy *and
intending to get S arrested, did not in fact instigate M to accept the bribe, held , S
was guilty of abetment of bribery (y).

The Madras High Court in Venkatarama Naidiis case (z) has pointed out the
unsatisfactory nature of the law and held that under the present law no offence can
be committed when the public servant is functus officio in the exercise of his offi-
cial functions. Even where an act is not within the exercise of official duty of a
public servant (such as the exercise of influence to obtain a title), if a public servant
erroneously represents that the particular act is within the exercise of his official
duty, he would be liable to conviction under this section (a). In Ajudhas case (a)
it was further held that the Madras High Court in Venkias case (b) overruled illus-
tration (c). The -conduct which is contemplated as a consideration for the bribe

(t) Upendra Mohan Choudhury, (1916) 21 C. W. N. 552 : 18 Cr. L. T. 565 :

391. C. 805. J

(u) Mahmad Hossain , (1866) 5 W. R. (Cr.) 49.

(v) Per Batty, J., in Bhagwan Das , (1907) 31 B, 335 (342) : 9 Bom. L. R. 331.

(w) The Central Provinces Court of Wards Act, 1899, (24 of 1899), S. 19 (2),
C. P. Code ; The United Provinces Court of Wards Act, 1912, (U. P. Act IV of 1912) S.
33, U. P. Code : The Ajmere Government Wards Regulation, 1888 (1 of 1888) S. 11,
(2), Aj. Code ; The United Provinces Municipal Act, 1916 (U. P. Act II of 1916) S. 84
U. P. Code ; Bombay Court of Wards Act, 1905 (Bombay Act 1 of 1905) s. 41 (4),
Bom. Code ; The Punjab Court of Wards Act, 1903 S. 42 (3) (Punjab Act II of 1903)
Punjab and N. W. Code ; the Allahabad University Act, 1887 (Act 18 of 1887) S. 18.
(2), U. P. Code; The Indian Railways Act, 1890 (19 of 1890) S. 137 (2).

(x) Ahad Shah t P. L. R. No. 96 of 1918 ; P. R. No. 18 of 1918 (Cr.) : P. W.
No. 26 of 1918 (Cr.) : 45 I. C. 150.

(y) Srilal Chamaria , (1917) 46 C. 607 : 22 C. W. N. 1045 (1050).

(z) (1929) 57 M. L. J. 239 : (1929) M. W. N. 695.

, . P ! os l& J 1028 l 61 A - 467 : Al L R ■ ( 1928 ) A - 762 » following Kishen

Lai, (1904) 1 A. L. J. 207 (notes) and dissenting from in re. Vemkiah. (1924) M. W.N.
894 : A. I. R. (1924) M. 881. '

(b) (1924) M. W. N. 894.

SEC. 161 3 OF OFFENCES BY OK RELATING TO PUBLIC SERVANTS 277

must be that of the official obtaining it. This is clear from the phrase 'in the
exercise of his official functions * (c).

Attempt to obtain a bribe :~This section punishes an * attempt * to
obtain a bribe. “ To ask for a bribe is an attempt to obtain one, and a bribe may
be asked for as effectually in implicit as in explicit terms " (d).

A demand of dasturi by a Court peon from the plaintiff as a ' motive or re-
ward ' for serving summonses on his witnesses without an identifier amounts to
an attempt to obtain an illegal gratification (e).

A mere offer to pay an illegal gratification to a public servant is an attempt
to bribe ; actual money or other considerations need not be produced at the time
of the offer (f).

Abetment A person offering an illegal gratification to a public servant
for any of the purposes mentioned in the section is liable for an abetment under
this section.

Persons who are present at the time of offer or payment not merely those who
actu ally offer are guilty of abetment (g).

If a public servant solicits a bribe and the perron solicited complies with the
demand and hands him money, he intentionally aids by his act and therefore abets
the taking of the bribe by the public servant and that the fact that the bribe was
solicited at most renders the abetment less culpable than it would otherwise be (h).
The offer of a bribe to a public servant to lay trap for him and expose his dishonesty
and bring him to justice constitutes the offence of abetment of bribery under Ss.
109 and 161 (i).

Where a taxi-driver was prosecuted for a petty offence under the Motor Vehi-
cles Act on the 16th June, the case against him was dismissed but on the 21st June,
he offered Re. I to the sergeant in ignorance of the case against him, held that as
on the 21st June, it was not within the powers of the sergeant to show any favour
to the petitioner who had already been discharged, no money could have been paid
to him as a ‘ motive or reward * for doing anything for the peritioner, the petitioner
could not be convicted under Ss. 161 and 109 G)<

Payment of bribe : — Payment of bribe to a public official must be a wrong
act but the circumstances may be such that the immorality is rendered of a very
trivial description fk).

Where the accused went to C, a municipal commissioner, to express acknow-
ledgments for the withdrawal of objections against a building which a cousin his
wished to erect and in the course of conversation enquired if he should put a tender
for some cement for which the Municipality had advertised and stated to C that
“ my cousin wishes to give you Rs. 5,000, M the accused was charged under Ss. 116
and 161 of the Code and was acquitted. The Crown preferred an appeal and in
dismissing the appeal the Bombay High Court held that the conversation did
not amount to an offer of bribe (1).

ft

BhagwanDas, (1007) 31 B. 335 (342).

(d) Baldeo Sakai, 2 A. 253.

(e) Ratanmoni Dey, (1905) 32 C. 292.

(f) Rameshwar Singh, (1924) 3 P. 647 : A I. R. (1925) P. 48.

(g) Magnalal, (1889) 14 B. 115.

(h) Nga Huin, (1917) 10 Bur. L. J. 262 : 9 L. B. R. 62 : 18 Cr. L. J. 327 : 38
I. C. 439.

(i) In re. Lakshmi Narayan Aiyar, (1917) M. W. N. 831; 22JM. L. J. 373 : 6 L. W.
677 : 19 Cr. L. J. 29 : 42 I. C. 989.

ti\ Shamsul Huq , (1920) 33 C. L. J. 379 ; 23 Cr. L. J. 1. : 62 I. C. 369.

In re. Talari Narain Swami, (1911) 9 M. L. J. 603 : li Cr. L. J. 170: 9

I. C. 978.

(1) Amiruddin , (1922) 24 Bom. L. R. 634 : 23 Cr. L. J. 466 : 67 I. C. 818 : A. I. R.
(1923) Bom. 44 (2).

278

THE INDIAN PENAL CODE

[CHAP. IX

162. Whoever

Taking gratification
in order, by corrupt or
illegal means, to influ-
ence public servant.

accepts or obtains, or agrees to accept, or
attempts to obtain, from any person, for
himself or for any other person, any grati-
fication whatever as a motive or reward for
inducing, by corrupt or illegal means, any
public servant to do or to forbear to do any official act, or in the
exercise of the official functions of such public servant to show
favour or disfavour to any person, or to render or attempt to
render any service or disservice to any person with the Legisla-
tive or Executive Government of India, or with the Government
of any Presidency, or with any Lieutenant-Governor, [or wjth
any member of the Senate of the Allahabad University], or with
any public servant, as such, shall be punished with imprisonment
of either description for a term which may extend to three years,
or with fine, or with both.

While the last section speaks of * gratification ' other than * legal remunera~
tion/ this section says of * any gratification whatsoever * and the further element
in this section is * by corrupt and illegal means * and this section is practically
identical with the next section with this exception, viz., that the means is different
as in s. 163 the Legislature has enacted ‘ by the exercise of personal influence.'

Scope. — A person, who accepts, for himself or for some other person,
a gratification for inducing, by corrupt or illegal means, a public servant in
the exercise of his public functions to do a favour to the party requiring it is
punishable not under s. 161 but under s. 162 (m).

Legislative changes : — The words “ or with any member of the Senate of the
Allahabad University ” were inserted by the Allahabad University Act, 1887 (XVIII
of 1887), s. 182, U. P. Code, in this section and in the next section.

Procedure : — Non-cognizable — Summons — Bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — The charge under this section should distinctly state the name
of the persons from whom the gratification was obtained and of the public servant
to be influenced in the exercise of his official functions. Where it is not stated who
the person or persons were for whom the gratification was obtained, nor who the
public servant was who had to be influenced in the exercise of his official functions,
the conviction on a charge of attempting to receive a gratification is illegal (n).

The charge should run as follows : —

1 (name and office of Magistrate , etc.) hereby charge you ( name of accused)
as follows : —

That you, on or about the day of % at , accepted

(or obtained, or agreed to accept or attempted to obtain) from , for

yourself (or for any other person) a gratification namely, from— as a motive or reward

for inducing by corrupt or illegal means a public servant, to wit — — t

to do (or forbear to do) an official act to wit , or to show favour

(or disfavour) to any person to wit , or to render (or attempt to render) any

service (or disservice) to any person with the Legislative (or Executive)

Government of India (or with the Government of any Presidency, or with any
Lieutenant-Goveftor, etc.) and thereby committed an offence under s. 162 of the

(m) Obhoy Chandra Chakraverty ; (1866) 3 W. R. (Cr.) 19.

(n) Setul Chandra Bagchee, (1866) 3 W. R. (Cr.) 69.

SECS. 163-64] OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS 279

Indian Penal Code and within my cognizance (or the cognizance of the Court of
Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

183. Whoever accepts or obtains, or agrees to accept or

Taking gratification attempts to obtain, from any person, for
for exercise of personal himself or tor any other person, any grati-
servant, 6 public fi cat ‘°. n whatever, as a motive or reward for
inducing, by the exercise of personal influence,
any public servant to do or to forbear to do any official act, or in
the exercise of the official functions of such public servant to
show favour or disfavour to any person, or to render or attempt
to render any service or disservice to any person with the Legis-
lative or Executive Government of India, or with the Govern-
ment of any Presidency, or with any Lieutenant-Governor,
[or with any member of the Senate of the Allahabad University],
or with any public servant, as such, shall be punished with simple
imprisonment for a term which may extend to one year, or with
fine, or with both.

Illustration.

An advocate who receives a fee for arguing a case before a Judge ; a person who
receives pay for arranging and correcting a memorial addressed to Government, set-
ting forth the services and claims of the memorialist ; a paid agent for a condemned
criminal, who lays before the Government statements tending to show that the con-
demnation was unjust, — are not within this section, inasmuch as they do not exercise
or profess to exercise personal influence.

This section punishes gratification taken by the accused for exercise of personal
influence with a public servant.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

Charge : — Same as for s. 162 with this modification that in place of 4 by cor-
rupt or illegal means/ the words 4 by the exercise of personal influence * should
be written.

164. Whoever, being a public servant, in respect of whom
r> ■ . w either of the offences defined in the last

ment by public servant two preceding sections is committed, abets
o£ i ofie I 1 fln S d iao ned in the offence, shall be punished with im-
pnsonment ot either description tor a term
which may extend to three years, or with fine, or with both.

Illustration .

A is a public servant. B t .4's wife, receives a present as a motive for soliciting
A to give an offence to a particular person. A abets her doing so. B is punishable
with imprisonment for a term not exceeding one year, or with fine, or with both.
A is punishable with imprisonment for a term which may extend to three years or
with fine, or with both.

This section penalises the abetment of 4 the offences defined in the last two
preceding sections/ and it being an 4 express provision * madfe by the Code* does
not come within the purview of s. 109 and other provisions of Chap. V and only
provides for an enhanced punishment.

280

THE INDIAN PENAL CODE

[CHAP. IX

b Procedure : — Non-cognlzable — Summons — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the. first
class.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you , being a public servant in the Department of Govern-

ment, abetted the commission of the offence punishable under s. 162 (or s. 163) by —

and thereby committed an offence under s. 164 of the Indian Penal

Code, and within my cognizance (or the cognizance of the Court of Session or of the
High Court).

And I hereby direct that you be tried (in case of committal by the said Court )
on the said charge.

165 . Whoever, being a public servant, accepts or obtains.

Public servant obtain- ? r accept or attempts to obtain,

any
, or
o be

lkfswvS by SUCh pub " inadequate,

from any person whom he knows to have
been, or to be, or to be likely to be concerned in any proceeding
or business transacted or about to be transacted by such public
servant, or having any connection with the official functions of
himself or of any public servant to whom he is subordinate,

or from any person whom he knows to be interested in or
related to the person so concerned,

shall be punished with simple imprisonment for a term
which may extend to two years, or with fine, or with both.

Illustrations.

mg valuable thing with tor himself, or tor any other person,
So^ nsi con a cer 0 ned fr °in valuable thing without consideration
proceeding or business for a consideration which he knows t

(а) A, a collector, hires a house of Z, who has a settlement case pending before
him. It is agreed that A shall pay fifty rupees a month, the house being such that,
if the bargain were made in good faith, A would be required to pay two hundred
rupees a month. A has obtained a valuable thing from Z without adequate considera-
tion.

(б) A, a Judge, buys of Z t who has a cause pending in A’s Court, Government
promissory notes at a discount, when they are selling in the market at a premium.
A has obtained a valuable thing from Z without adequate consideration.

(c) Z’s brother is apprehended and taken before A, a Magistrate, on a charge
of perjury. A sells to Z shares in a bank at a premium, when they are selling in the
market at a discount. Z pays A for the shares accordingly. The money so obtained
by A is valuable thing obtained by hirfi without adequate consideration.

This section penalises the acceptance of presents of valuable things from
persons concerned in any proceeding or business transacted by such public servant.
Presents from persons having any connections with the official functions of a
public servant are prohibited and punished. There is no absolute prohibition
against the taking of presents of any kind and this section does not make a crime
the acceptance of a 4 valuable thing * from any person. Under this section die
question of motive or reward for doing or forbearing to do an official act, which is
material under s. 161, is immaterial.

The Authors of the Code say : — 4< Absolutely to prohibit all public functional
ries from taking presents would be to prohibit a son from contributing to the

SEC. 166] OF OFFENCES BY OK RELATING TO PUBLIC SERVANTS 281

support of a father, a father from giving a portion with a daughter, a brother from
extricating a brother from pecuniary difficulties. No Government would wish to
prevent persons intimately connected by blood, by marriage or by friendship,
from rendering services to each other ; and no tribunals would enforce a law which
should make the rendering of such a service a crime. Where no such close connection
exists, the receiving of large presents by a public functionary is generally a very
suspicious proceeding ; but a lime, a wreath of flowers, a slice of betel-nut, a drop
of atar of roses poured on his handkerchief, are presents which it would in this
country be held churlish to refuse, and which cannot corrupt the most mercenary of
mankind. Other presents, of more value than these, may, on account of their
peculiar nature, be accepted, without affording any ground for suspicion. Luxu-
ries socially consumed, according to the usages of hospitality, are presents of this
description ; it would be unreasonable to treat a man in office as a criminal, for
drinking many rupees worth of champagne in a year, at the table of an acquaint-
ance ; though if he were to suffer one of his subordinates to accept even a single
rupee in specie, he might deserve exemplary punishment ” (o).

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable — ,

Triable by Presidency Magistrate or Magistrate of the first or second class.

Evidence of similar but unconnected instances of taking illegal gratification is
inadmissible (p).

Complaint : — No Court shall take congnizance of an offence under this sec-
tion except with the previous sanction of the Local Government (q).

Charge : — I ( name and office of Magistrate , etc. ) hereby charge you {name
of accused) as follows : —

That you, on or about the day of , at ,

being a public servant, namely, in the Department accepted (or agreed

or attempted to obtain) for yourself (or for ) a valuable thing, namely —

without consideration (or for a consideration which you know to be

inadequate) from , whom you know to have been (or to be or to be

likely to be) concerned in a proceeding or business transacted or about to be
transacted by you (or which had connection with your official functions or the

official functions of- to whom you were subordinate) or from A B whom

you knew to be interested in or related to the person whom you know to have been
(or to be or to be likely to be) concerned (as above), and that you thereby committed
an offence punishable under s. 165 of the Indian Penal Code and within my cog-
nizance.

And I hereby direct that you be tried on the said charge.

Where a* police clerk followed the prosecutor after the case had ended in con-
viction of an accused for theft and demanded Re. 1 from him as dasturi and which
the latter paid and then was convicted under s. 161, held, conviction under that
section was wrong but he was found guilty of an offence under this section (r).

166 .

Public servant dis-
obeying law with intent
to cause injury to any
person.

Whoever, being a public servant, knowingly disobeys
any direction of the law as to the way in
which he is to conduct himself as such public
servant, intending to cause, or knowing it
to be likely that he will, by such disobe-
dience, cause injury to any person, shall be

(o) Note E.

(p) Vyapowy Moodeliar, (1881) 6 C. 60S.

{c}) S. 197 of the amended Code of Criminal Procedure Code of 1923.
Katnpta Prasad, (1877) 1 A. 530.

THE INDIAN PENAL CODE

282

[CHAP. IX

punished with simple imprisonment for a term which may
extend to one year, or with fine, or with both.

Illustration .

A, being an officer directed by law to take property in execution, in order to
satisfy a decree pronounced in Z*s favour by a Court of Justice, knowingly disobeys
that direction of law, with the knowledge that he is likely thereby to cause injury
to Z. A has committed the offence defined in this section.

Public Servant — s. 21. Persons — s. II.

Injury— s. 44.

This section punishes the wilful disobedience by a public servant of any law
with intent to cause injury to any person. Under ‘ English Law * neglect of official
duty is an indictable offence.

In order to satisfy the requirement of an offence under this section, there must
be a wilful disobedience of an express provision of law and that a disobedience to
an order is not sufficient even though that order may be one that is given under a
provision of law (s).

Procedure : — Non-cognizable— Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge : — The charge should specify the particular direction of the law
which the accused is alleged to have disobeyed (t).

Form of the charge : — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused) as follows : —

That you, on or about the day of , at ,

did {or omitted to do as the case may be) such conduct being contrary to the provi-
sions of Act section and known by you to be prejudiced to

— - f and thereby committed an offence punishable under s. 166 of the

Indian Penal Code, and within my cognizance (or the cognizance of the Court of
Sessions or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge (u).

Public servant disobeying law with intent to cause injury to any
person : — In order to satisfy the requirements of an offence under this section,
there must be a wilful disobedience of an express provision of law and a disobe-
dience to an order is not sufficient even though that order may be one that is given
under a provision of law (v).

Where a peon, whose duty was under the law to require the signature of the
person on whom the notice is to be served, was entrusted with the service of the
complaint, disobeyed the direction of the law by representing the notice to be a
warrant and arresting the person under colour of the alleged warrant, held that he
was guilty of an offence under this section (w).

Where a post-master who absented from his duty without leave was convicted
under this section, held that the conviction was illegal but the conviction was altered
to one under s. 47 of the Post Office Act (x).

(s) Appaji Narayan, (1898) Rat. unrep. Cr. C. 704 ; Rangasami Naidu, (1910)
40 M. L. J. 568.

(t) Harm Din, (1800) P. R. No. 34 of 1890.

(u) Criminal Procedure Code, Scb. V. Form No. XXVIII.

(v) Appaji Narayan , (1805) Rat. unrep. Cr. C. 764.

(w) Rangasami Naidu , (1910) 7 M. L. T. 429: 20 M. L. J. 568.

(x) Virasami Naick . (1877) 1 Weir. 72.

SECS. 167-168] OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS 283

167. Whoever, being a public servant, and being, as such

_ ... . . public servant, charged with the preparation

ing an incorrect docu- or trensl&tion ot eny document, frames or
ment with intent to translates that document in a manner which
cause injury. k nows or believes to be incorrect, in-

tending thereby to cause or knowing it to be likely that he may
thereby cause injury to any person, shall be punished with
imprisonment of either description for a term which may extend
to three years, or with fine, or with both.

Public servant — s. 21 . Injury — s. 44.

Document — s. 29. Person— s. f 1 .

This section punishes the preparation of false record by a public servant
with intent to cause injury to any person. This section is analogous to s. 218, infra ,
but in the latter section the intent is either to cause injury as in this section or to
save person from punishment to property from forfeiture.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — I ( name and office of Magistrate, etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at , being a

public servant, charged with the preparation (or translation) of the document relating

to— —framed (or translated) that document in a manner which you knew

(or believed) to be incorrect, intending thereby to cause (or knowing it to be likely
that you might thereby cause) injury to , and that you thereby com-

mitted an offence punishable under s. 167 of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session, or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Public servant framing an incorrect document with intent to cause
injury r— Where a station house officer in order to support the Inspector made a
false story in his diary that “ four cartmen stated to him as they had said before the
Inspector " ix„ that there was no dacoity and it appeared from the evidence that
his statement, that no complaint of dacoity was lodged, was false, held that the
accused was guilty under this section, (y).

168. Whoever, being a public servant, and being legally
Public servant un- bound as such public servant not to engage

lawfully engaging in in trade, engages in trade, shall be punished
trade ' with simple imprisonment for a term which

may extend to one year, or with fine, or with both.

This section punishes a public servant who is legally bound not to engage in
trade.

The Code contains no definition of the general word 9 trade 9 and no expla-
nation of the equally wide term 9 engage in trade. 9 This section requires three
elements only to constitute the offence with which it deals, namely : (I) that the
offender is a public servant, (2) that as such he is legally bound not to engage, in
trade, (3) that he is engaged in trade so forbidden (z). False allegations against

y) Posupuleti Ramdoss, (1911) M. W. N. 64 : 12 Cr. L. J. 602: 12 I. C. 222.

z) Narayan , (1910) 6 N. L. R. 114 : 8 I. C. 274.

284 THE INDIAN PENAL CODE [ CHAP. IX

innocent and respectable persons of a criminal conspiracy to bring false charges,
when used as a defence, aggravate greatly the original offence (a).

There are various enactments prohibiting a public servant from engaging in
trade, (a) Governor-General, Governor or member of Council (33 Geo. Ill, c. 52,
3 and 4 Will. IV, c. 85) ; Persons employed in the collection of revenue or adminis-
tration of justice in Bengal, Behar and Orissa (33 Geo. Ill, c. 52, s. 137) ; Adminis-
trator-General, (Act II of 1874, s. 10) Forest Officers (Act VII of 1878, s. 74),
Police Officers (Act V of 1861, s. 10; Act XXIV of 1859, s. 19 and Bombay Act
VII of 1867, s. II); Revenue officers (Beng. Reg. II of 1794 ; Mad. Regs. I and II
of 1803 ; Bom. Act V of 1879 and XVIII of 1881) ; Officers of High Courts (Act
XV of 1848, Ss. 1-3); Officers of Presidency Banks (Act XI of 1876, s. 34; and
Act V of 1879, s. 3) ; Judges and other officers of Presidency Small Causes Court
(Act XV of 1882) ; members and servants of the Municipalities (Calcutta Muni-
cipality — Bengal Act III of 1899 Bengal Municipal Act, (Act VII of 1884) ; Madras
City Municipal Act, Mad. Act (I of 1884); Madras District Municipalities Act,
Mad. Act (HI of 1904 ; Bombay City Municipal Act — (Bom. Act VII of 1888) ;
Bombay District Municipalities Act, (Bom. ActVIIof I90I)N. W. P. Oudh Muni-
cipal Act, (Act XV of 1873); The Punjab Municipal Act, (Act XX of 1891 );
Punjab Act (Act VI of 191 1, s. 4 ) ; C. P. Municipalities Act, (Act XVI of 1903) ;
Burma Municipalities Act, (Burma Act Act III of 1898); Ajmere Municipalities
Regulations (Act V of 1886), Pound Keeper (Act I of 1871),

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

Sanction s — No Court shall take cognizance of an offence committed by the
public servant (if he is not removeable from his office save by or with the sanction of
the Government while such public servant is alleged to have committed an offence
under this section in execution of his official duty) without previous sanction from
Local Government (a 1 ).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at , being a

public servant, to wit , and being, as such public servant, legally bound not

to engage in trade, did engage in trade, and, thereby committed an offence
punishable under s. 168 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Police-officer carrying on trade :—The words * any employment or office
whatever ’ are wide enough to cover the case of a police officer who engages in a
trade, as s. 10 of the Police Act prohibits police officers from carrying on a trade
unless expressly permitted by the Inspector General (b).

169. Whoever, being a public servant, and being legally
Public servant unlaw' bound as such public servant, not to pur-
fuiiy buying or bidding chase or bid for certain property, purchases
for property. or bids for that property, either in his own

name or in the name of another, or jointly, or in shares with
others, shall be punished with simple imprisonment for a term
which may extend to two years, or with fine, or with both ; and
the property, if purchased, shall be confiscated.

(a) Narbada Prosad. (1929) 51 A. 864. "

{all S. 1S7 of the Criminal Procedure Code.

(b) Sugar Singh, 19 C. L. J. 153 (Cal.) : 43 I. C. 440.

SEC. 170] OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS 285

This section is in the same lines as the preceding section. It punishes a public
servant for buying or bidding for property in respect of which he is connected in
his official capacity.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable—
Triable by Presidency Magistrate or Magistrate of the first class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows

That you, on or about the day of , at .being

a public servant, namely, in the department and being legally

bound as such public servant not to purchase (or bid for) certain property, viz ., —

purchased (or bid for that property) in your name [(or in the name of ) or

jointly , or in share with •] and thereby committed an offence

punishable under s. 169 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Public servant unlawfully bidding for property Where a Sub- Inspector
of Police was convicted under s. 406 of the Code for having purchased a pony which
had been impounded, held that he should have been convicted under this section
read with s. 19 of Act I of 1871 (c).

170. Whoever pretends to hold any particular office as a
public servant, knowing that he does not
servant UdtinS d pub ,c bold such office or falsely personates any

other person holding such office, and in such
assumed character does or attempts to do any act under colour
of such office, shall be punished with imprisonment of either
description, for a term which may extend to two years, or with
fine, or with both.

This section is analogous to s. 140 which makes it an offence on the part of a
person, who not being a soldier, wears the garb or carries any token used by
soldiers. This section punishes ‘ fraudulent personation ’ of public servant.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by any Magistrate.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at , pretended to

hold the office of , as a public servant (or falsely personated

holding such office), and in such assumed character did (or attempted to do) —

under colour of such office and thereby committed an offence punishable under
s. 170 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

* under colour of office 9 : — Where a prisoner pretending to hold the office
of head-constable of police and under colour of such pretended office went to some
of the villages, summoned the villagers, and reprimanded them for the bad state
of the road and extorted a small fee and would have extorted more money but for the
timely arrival of the real police officer, held the prisoner was guilt/of cheating and
falsely personating a public servant (d).

(c) Rajkristo Biswas , (1871) 16 W. R. (Cr.) 52.

(d) Sadanand Dass 0 (1865) 4 W. R. (Cr.) 49.

286

THE INDIAN PENAL CODE [ CHAP. IX-A

Any act s— To constitute the offence provided for by this section it is not
necessary that the act done or attempted to be done should be such an act as might
legally be done by the public servant personated (e). The mere assumption of a
false character without any attempt to do an official act is not sufficient to bring the
offender within the meaning of this section (f).

Where a village revenue officer in good faith in the absence of the village
magistrate exercised the. powers of the magistrate, held , he did not commit an
offence under this section (g).

Personating C. I. D. Inspector : — Where the accused was charged under this
section on the allegation that he avoided paying a one-anna platform charge by
pretending upon entering the station platform that he was a C. I. D. officer, it being
a custom of the Railway not to require from the C. I. D. officers any platform ticket,
held that this did not constitute an offence under this section (h).

171. Whoever, not belonging to a certain class of public
. . servants, wears any garb or carries any

carrying token used by token resembling any garb or token used
pubiic servant with (hat class of public servants, with the
intention that it may be believed, or with
the knowledge that it is likely to be believed, that he belongs to
that class of public servants, shall be punished with imprisonment
of either description, for a term which may extend to three
months, or with fine which may extend to two hundred rupees,
or with both.

This section punishes fraudulent disguise by a public servant ; merely wearing
garb or carrying token used by public servants without fraudulent intent is no
offence.

Procedure : Cognizable Summons Bailable- 2 — Not compoundable

Triable by any Magistrate — Triable summarily.

Where an accused is convicted under s. 171 of wearing a garb used by a public
servant with fraudulent intent and of personating a police constable by means of such
garb he cannot be sentenced both under Ss. 170 and 171, 1. P. C. t a single sentence
ought to be passed (i).

CHAPTER IX-A.

Of Offences Relating to Elections.

This Chapter was inserted by Act No. XXXIX of 1920 to provide for the
punishment of malpractices in connection with elections, and to make further
provision for the conduct of inquiries in regard to disputed elections to legislative
bodies constituted under the Government of India Act.

(e) Azizuddm, (1904) 47 A. 294 following Wazirjan, (1887) 10 A. 58.

(f) Suhhdeo Pathek , (1917) 3 P. L. J. 389 ; 19 Cr. L. J. 209.

(g) (1881) 1 Weir 74.

(h) Sukhdeo Pathak , (1917, 3 Pat. L. J. 389 : (1918) Pat. Suppt.C. W. N. 287.;
19 Cr. L. J. 209 : 43 I. C. 785.

(i) Tukuram , (1888) R at. unrep. Cr. C. 405.

SEC. 171-A ] OF OFFENCES RELATING TO ELECTIONS 287

Referring to the insertion of this Chapter the Select Committee say as follows :
— “ It has been suggested in some Quarters that this Chapter should be confined
to offences committed in connection with elections to legislative bodies constituted
under the Government of India Act. After full consideration of this question, we
feel there are distinct advantages at the present time when election is to play so im-
portant a part in the new public life of India that the public conscience should be
markedly drawn to the danger of corrupt practices in relation to the franchise,
whether that franchise relates to legislative or other bodies. We feel it is of the
greatest importance that the principle of the purity of the franchise should be
insisted on in the general criminal law of the country and that it should not be left
to local legislatures to deal with the broad principles enacted in this Chapter. There
will be sufficient scope for those bodies in elaborating and supplementing the law
as proposed in the Bill for we recognise that it is by no means exhaustive."

The object of the bill is two-fold, vide Statement of Objects and Reasons in the
Gazette of India, dated July 3, 1920, Part V, p. 131, at p. 135 : “ 4 Firstly,’ it seeks
to make punishable under the ordinary penal law bribery, undue influence and per-
sonation and certain other malpractices at elections not only to the legislative bodies,
but also to membership of public authorities where the law prescribes a method of
election : and further, to debar persons guilty of such malpractices from holding
positions of public responsibility for a specific period. ‘Secondly,’ it proposes
to empower the commissioners appointed under the rules to exercise judicial
powers of investigation in respect of elections of legislative bodies in India. This
chapter embodies the first part of the Bill."

Sanction: — Act No. XXXIX of 1920 inserting this Chapter IX-A of the
Indian Penal Code amends by s. 3 of the Indian Election Offences and Injuries Act,
s. 196 of the Code of Criminal Procedure so as to include this chapter. No
prosecution for offences under this chapter is to be instituted except with the sanc-
tion of the Governor-General in Council, the Local Government or some other
officer empowered by the Governor-General in Council.

171~A. For the purposes of this Chapter —

, ndid tc *» ' c i cc ( a ) * candidate " means a person who

torafright^defmed 0 C ° has been nominated as a candidate at any

election and includes a person who, when an
election is in contemplation, holds himself out as a
prospective candidate thereat ; provided that he
is subsequently nominated as a candidate at such
election ;

( b ) 44 electoral right ” means the right of a person to stand,
or not to stand as, or to withdraw from being, a
candidate or to vote or refrain from voting at an
election.

4 Candidate 9 r— “ Candidates are persons offering themselves to the suffrages
of the electors M per Lord EUenborough, C. J., in (1813), ^ 0. M. and H. 212. A
person seeking to be elected is a candidate, see Halsbury 4 Laws of England * Vol.
XII, s. 536.

4 Nominated 9 : — It is a condition precedent to a valid election of a member
to serve in Parliament that the candidate shall have been duly nominated in writing .

Ballot Act, 1872 (35 and 36 Viet., Chap. 33, s. I).

288

THE INDIAN PENAL CODE

[CHAP. 1X-A

171-B. (1) Whoever—

(0 gives a gratification to any person with

n ry the object of inducing him or any other person to
exercise any electoral right or of rewarding any
person for having exercised any such right ; or

(it) accepts either for himself or for any other person any
gratification as a reward for exercising any such right
or for inducing or attempting to induce any other
person to exercise any such right,
commits the offence of bribery :

Provided that a declaration of public policy or a promise of
public action shall not be an offence under this section.

(2) A person who offers, or agrees to give, or offers or
attempts to procure, a gratification shall be deemed to give a
gratification.

(3) A person who obtains or agrees to accept or attempts
to obtain a gratification shall be deemed to accept a gratification,
and a person who accepts a gratification as a motive for doing
what he does not intend to do, or as a reward for doing what he
has not done, shall be deemed to have accepted the gratification
as a reward.

This section defines 4 Bribery at an election/

The Select Committee Reported s — “ In the clause which is to be inserted
as s. I7I-B, in the Penal Code dealing with ‘ bribery * we have added a proviso on
the lines of the proviso to s. I7I-C, to make it clear exmajore cantela that a mere
declaration of public within policy on promise of public action can in no circum~
stances fall within the mischief of the section/*

Statement of Objects and Reasons : — “ Bribery is defined primarily as the
giving or acceptance of a gratification either as a motive or as a reward to any person,
either to induce him to stand as, or not to stand as, or to withdraw from being, a
candidate or to vote or refrain from voting at an election. It also includes offers
or agreements to give or offer and attempts to procure a gratification for any person.

‘ Gratification ’ is already explained in s. 161 of the Penal Code and is not restricted
to pecuniary gratifications or to gratifications estimable in money 9 (j).

4 Treating ’ — will be bribery if refreshment is given or accepted with the intent
required by the law (k). The offence of corrupt treating, unlike that of bribery,
may in certain circumstances be excused by the Court, but not if the candidate is
personally guilty of the act — Corrupt and Illegal Practices Prevention Act, 1883
(46 and 47 Viet., Chap. 51, s. 22).

Bribery Bribery is a corrupt practice, see Statutes (46 and 47 Viet. c. 51).

Proof of Bribery Due proof of a single act of bribery by the candidate
or fus agents, however insignificant that act may be, is insufficient to invalidate the
election (I),

(j) Gazette of India (1920), Part V. p. 135 S. 8.

(k) Plymouth. (1880) 3 O'M & H. 107, 108.

(i) Lichfield's Case, (1869), J. O'M & H, 22, 28.

SEC. 171-C J OF OFFENCES RELATING TO ELECTIONS 280

Clear and unequivocal proof is required before a case of bribery will be held to
have been established (m). Suspicion is not sufficient and the confession of the
person alleged- to have been bribed is not conclusive (n). Colourable charity or
colourable employment and colourable purchases will all fail to cloak a corrupt
act (n) ; colourable hiring of a public house to secure the votes of the publicans
was held to be ‘bribery’ (o).

Instances of bribery : — The payment to a voter of his travelling expenses
in order to induce him to vote is a ‘ bribery.’

171-C. (1) Whoever voluntarily interferes or attempts to

rt interfere with the free exercise or any

elections. m uenc ° at electoral right commits the offence of undue
influence at an election.

(2) Without prejudice to the generality of the provisions
of sub-section (1), whoever —

(a) threatens any candidate or voter, or any person in

whom a candidate or voter is interested, with injury
of any kind, or

(b) induces or attempts to induce a candidate or voter to

believe that he or any person in whom he is interested,
will become or will be rendered an object of Divine
displeasure or of spiritual censure,

shall be deemed to interfere with the free exercise of the electoral
right of such candidate or voter, within the meaing of sub-section (1 ).

(3) A declaration of public policy or a promise of public
action, or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be inter-
ference within the meaning of this section.

“ Undue influence at an election — is defined as the voluntary interference
or attempted interference with the right of any person to stand, or not to stand, or
withdraw from being a candidate, or to vote or refrain from voting. This covers
all threats of injury to person or property and all illegal methods of persuation
and any interference with the liberty of the candidates or electors. A sub-section
is added to explain that the inducing or attempting to induce a person to believe
that he will become the object of Divine displeasure is also interference. It is not,
however, interference within the meaning of the clause to make a declaration of
public policy or a promise of public actors " (p).

With reference to this section the Select Committee reported as follows

In s. J71-C we have added words to make it clear that the second sub-clause
is merely explanatory of the genera] definitions in the first sub-clause and does net
restrict the generality of the words used there. We have considered the criticisms
of this clause based on the generality of the words employed, but we are satisfied
that any attempt at specific enumeration would be open to a serious danger of
loopholes in wnat we regard as a most salutary provision.”

(m) (1874) 2 O'M. & H. 107 and 108.

(n) /1880) 3 O'M. & H. 158.

(o) (1857) H. L. Case 746.

(p) Statement of Objects and Reasons, India Gazette, (1920) Part V., p. 136.

25

290

THE INDIAN PENAL CODE

[ CHAP. IX* A

* Undue influence 9 : — Undue influence is also a corrupt practice (46 and
47 Viet., c. 51, s. 22). See Halsbury, Laws of England, Vol XII, s. 565, p. 291.

Under s. 5 of the Corrupt PracticesPrevention Act, f 854, a person is guilty of
the offence of undue influence who threatens to withdraw his custom from a voter
in order to induce him to vote or to abstain from voting (q). But wrongful restraint
or confinement of a candidate on a date prior to the date of election by a rival can*
didate who was picketting his house does not make out a prima facie case under
this section (r).

(Clause (a) : — Baron Bramwcll observed : “ To my mind a threat must be an
operative threat at the time of the election, and if it were a bribe, it must be an
operative bribe at the time of the election " (s). In the Westbury case (t), it was
proved that a manufacturer in the town, who was an agent of the respondent, told
his workmen that no man should remain in his employment who voted for the peti*
tioner, his rival in trade, and that some of them were obliged to leave his employment
in consequence of their refusing to abstain from so voting, held , that the object
was to get the respondent returned, though the motive was to spite the petitioner
and to prevent him from being elected ; and Mr. Justice Willes declared the
election void on the ground of intimidation.

m~D. Whoever at an election applies for a voting paper
or votes in the name of any other person,
tions ISOnat, ° n at deC whether living or dead, or in a fictitious name,

or who having voted once at such election
applies at the same election for a voting paper in his own name,
and whoever abets, procures or attempts to procure the votjng
by any person in any such way, commits the offence of personation
at an election.

“ The definition of * personation * closely follows the definition in s. 24 of the
Ballot Act, 1872, and covers, both a person who attempts to vote in another person's
name or in a fictitious name, a voter who attempts to vote twice and any person who
abets, procures or attempts to procure such voting’* (u).

With reference to this section the Select Committee observe : " It has been
pointed out to us that voting papers are not employed in all forms of election now in
force, and we have therefore added in 171-D the words ‘ or votes 9 to provide for
a case where voting papers are not employed."

Personation : — Personation is a corrupt practice. The following persons are
guilty of personation : — (I) Every person who at an election applies for a ballot
paper in the name of some other person, whether that name be that of a person
living or dead, or of a fictitious person ; and (2) every person who, having voted
once at an election, applies at the same election for a ballot paper in his own
name.

The aiding, abetting, counselling or procuring of the offence of personation is
also a corrupt practice (v).

(q) JL V. Bratnwell, 5 W. R. 557 (Eng.).

(r) Ramsharan Das, (1926) 7 L. 218; 27 Cr. L. J. 468: A. I. R. (1926) Lab.

497.

S The Windsor case, (1874) 2 O'M. Sc H. 88 (91).

(1869) 1 O' M. St If. 27. 50.

(u) Statement of Objects and Reasons. India Gazette (1920), part. V. p. 136.
(v) Halsbury, Laws of England, Vol. 12, p. 292, s. 566; See also Ballot Act,
1872 (35 aqjji 38 Victoria, Oh. 36, s. 24) ; and also (46 and 47 Victoria, Ch. 51, s. 3).

SEC. I71-E ] OF OFFENCES RELATING TO ELECTIONS

201

If at a parliamentary election a man applies to the presiding officer for a ballot
paper in a name other than his name of origin or in the name by which he is generally
known, but in a name which appears on the register of voters, and which was inserted
therein by the overseers in the belief that it was the name of the applicant, and for the
purpose of putting him on the register, he is entitled to vote and is not a person
who “ applies for a ballot paper in the name of some other person, whether that
name be that of a person living or dead, or of a fictitious person,** so as to be guilty
of the offence of * personation,' within the meaning of s. 24 of the Parliamentary and
Municipal Elections Act, 1872, or the Corrupt and Illegal Practices Prevention Act,
1 883 (w). Distinguishing the case of Patrick Fox (w), it was held that the accused
was guilty of prosecution when he went to the polling officer and asked for a ballot
paper in the name of Muhammed Din, son of Faquir Muhammed, and when ques-
tioned he asserted more than once that his father’s name was Faquir Muhammed (x).

Mens rea if essential : — Mens tea is an essential ingredient in an offence
under this section, and an accused charged under this section cannot be convicted
without proof of his corrupt intention (y).

Offence of double~voting : — The offence of double-voting can be charged
not only under this section with the previous sanction of the Local Government
as required by s. 196, Cr. P. Code, but also under s. 55 fl) of the Madras District
Municipalities Act V of 1920, read with s. 40 of the Code (z).

4 Abets the voting by any person in any way 9 r— This expression must
mean the abetment of the voting at an election in the name of another person living
at that date, or in a fictitious name, or a second time (a). It was further held in
Ramnath's case (z 1 ) that the absence of sanction does not make the trial merely irre-
gular but illegal. In that case the accused was first tried under Ss. 465, 109
and had been acquitted but tried on the same facts under s. 171 -F, a second time
on the ground that the local Government had sanctioned the prosecution.

171-E. Whoever commits the offence of bribery shall be
punished with imprisonment of either des-
^Punishment for bn- cr jp t i on f or a term which may extend to one

year, or with fine, or with both :

Provided that bribery by treating shall be punished with
fine only.

Explanation : — “ Treating ” means that form of bribery
where the gratification consists in food, drink, entertainment, or
provision.

This section provides a punishment for the offence of ‘ bribery ' and
‘ personation ’ and by the * Explanation ' defines ‘ treating.’

Explanation : — * Treating,' as here defined, means that form of bribery where
the gratification consists in food, drink, entertainment or provision.

It has been held that * treating ’ is not the entertainment of an equal by an
equal, but of an inferior by a superior with the object of securing the good-will of
the inferior (z ).

(w) Patrick Fox, (1887) 16 Cox. C. C. 166.

(x) Mahomed Din, (1928) 117 I. C. 885 : A. I. R. (1929) L. 52.

(y) Pantam Venkaya, (1929) 58 M. L. J. Ill : (1930) M. W. N. 174,

(z) Sesha Ayer V. Venkata Subba Chetty, (1924) M. W. N. 268,

(zl) Ramnath, (1924) 47 A. 302 : 24 A. L. J. 180.

(*2) Birbeck, (1892) 4 O'M and H. 84 : 54 L. J. 0§5.

292 THE INDIAN PENAL CODE [ CHAP. IX-A

Procedure Non-cognizable — Summons— Bailable — Not compoundable
Triable by Presidency Magistrate or Magistrate of the first class.

Sanction : — No prosecution can be started without previous sanction of the
Local Government (z 3 ).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you, on or about the day of % at— ; . gave a

gratification to wit, — to XY with the object of inducing him or AB to

exercise any electoral right (or rewarding any person for having exercised any
such right) and thereby committed an offence under s. 101 -E of the Indian Penal
Code and within my cognizance.

or

That you accepted for yourself (or for XY ) a gratification, to

wit , as a reward for exercising your or his electoral right or (for

inducing or attempting to induce AB to exercise his electoral right).

And I hereby direct that you be tried on the said charge.

^171-F. Whoever commits the offence of undue influence
Punishment for undue or personation at an election ^ shall he
influence or personation punished with imprisonment of either des-
at an election. cription for a term which may extend to one

year, or with fine, or with both.

This section provides a punishment for the offence of undue influence as
defined in s. I7I-C and for the offence of personation at an election as defined in
s. 171 -D.

Procedure Non-cognizable— Summons— Bailable— Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first class.

Evidence : — In order to sustain a conviction for 4 personation*, it is necessary
to state in the indictment or to prove at the trial, that the presiding officer at the
booth where the offence was committed was duly appointed (a).

Charge : — I (name and office of Magistrate . etc.) hereby charge you

(name of the accused) as follows : —

That you, on or about the day of , at , volun-

tarily interfered (or attempted to interfere) with the free exercise of an electorate
right, to wit — ■ - , threatened XY a candidate (or voter in whom AB , a candi-
date or voter, is interested) with injury to wit or induced or attempted to

induce) a candidate (or voter) at an election, to wit , to believe that he

or any person in whom he is interested to wit will become an object of

Divine displeasure (or of spiritual censure) and thereby committed an offence
punishable under s. 1 71 -F of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

or

in the case of * personation at election.*

That you. on or about the day of , at the election to

wit— , applied for a voting paper (or voted) in the name of any other person

namely— — - — , who is living or dead (or in a fictitious name, having voted
once at the said election applied at the same election for a voting paper in your

(s3) Criminal Procedure? Code, s. 106, as amended by Act XXXIX of 1020.

(a) Garvey *\ Cox. C. *C. 252 .

203

Sfcc. 171-C ] OF OFFENCES RELATING TO ELECTIONS

name ) °r (abettedor procured or attempted to procure the voting as aforesaid in
* °* »• *71-0) and thereby committed an offence punishable under s. 171-F
of the Indian Penal Code and within my cognizance*

And I hereby direct that you be tried on the said charge.

Sanction f-|-Prosecution cannot be started for an offence under this section
without the previous^sanction of the Local Government.

S. ni*F and S. 465 : The Allahabad High Court has recently held that the
offence of false preparation of signature sheet at an election being specifically
described and designated^by the legislature, it is not open to any Court to say that
although the offence may be specifically one under s. 171-F of the Code, the
specific^ provision ought to be applied in preference to the general one (b).

171«GL Whoever with intent to affect the result of an elec-
False statement in tion makes Or publishes any Statement pur-
connection with an elec- porting to be a statement of fact whicn is
° n ’ false and which he either knows or believes

to be false or does not believe to be true, in relation to the personal
character or conduct of any candidate, shall be punished with
fine.

This section provides punishment for illegal payments in connection with
an election.

U On the lines of s. 1 of the Corrupt and Illegal Practices Prevention Act, 1895,
(58 and 59 Viet. c. 40) false statements of fact in relation to the personal character
or conduct of a candidate are penalized" (c).

Mens rea is a necessary ingredient in an offence under this section (d).

A candidate who attests voting slips after honestly making due enquiries of
voters' identity in polling officer’s presence is not guilty of abetment (e).

Candidate identifying without ascertaining identity of order Where
a candidate at an election recklessly attested the signature slip without taking care
to ascertain whether the thumb-impression was that of the voter and was sentenced
to pay a fine of Rs. 500 for the offence of abetment of personation and the local
Government moved for enhancement of sentence, Iqbal Ahmed, J., held that the
accused was technically guilty, and, on a difference of opinion with Walsh, J., the
case was referred to Mears, C. J., who held that the accused corruptly, wrongfully
and intentionally abetted a most seriour offence and sentenced the accused to
undergo simple imprisonment for a period of three months (0*

Procedure Non-cognizable — Summons— Bailable — Not compoundable- —

Triable by Presidency Magistrate or Magistrate of the first class.

Sanction — is a condition precedent to the initiation of prosecution under
this section, vide s. 196, Cr. P. Code.

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name
of the accused) as follows : —

(b) Ramnath, (1924) 47 A. 268 : 24 A. L. J. 180 : 84 I. C. 714 : A. I. R. (1926)
A. 230.

(c) Statement of Objects and Reasons, India Gazette (1920) part. V., P. 136.

(d) Venkaya, (1929) 68 M. L. J. Ill : A. I. R. (1930) M. 240.

(e) Ramnath . (1924) 24 A. L. J. 180.

(f) Badan Singh , A. I. R. (1928) A. 160.

294

THE INDIAN PENAL CODE

[CHAP. IX-A

That you, on or about the day of , at , with

intent to affect the result of the election, to wit , made or published

a statement in relation to the personal character (or conduct) of a candidate, to wit*
■ " ' , which statement is false and which you knew (or believed) to b* false

(or which you did not believe to be true) and thereby committed an offence punishable
under s. 171 -0 of the Indian Penal Code.

And I hereby direct that you be tried on the said charge.

171-H. Whoever without the general or special authority
illegal payments in i? writing of a candidate incurs or autho~
amnection with an elec- rises expenses on account of the holding
on ' of any public meeting, or upon any adver-

tisement, circular or publication, or in any other way whatsoever
for the purpose of promoting or procuring the election of such
candidate, shall be punished with fine which may extend to five
hundred rupees :

v- Provided that if any person having incurred any such ex-
penses not exceeding the amount of ten rupees without authority
obtains within ten days from the date on which such expenses
were incurred the approval in writing of the candidate, he shall
be deemed to have incurred such expenses with the authority
of the candidate.

This section penalises illegal payments in connection with an election made
for the procuration or promotion of the election of a candidate by a person without
the general or special authority of such candidate.

Procedure t— Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

Sanction — is a condition precedent to the initiation of a prosecution under
this section, vide s. 196, Cr. P. Code.

Charge : — I (name and office of Magistrate, etc.) hereby charge you ( name
of the accused) as follows : —

That you, on or about the^ day of , at , without

the general (or special) authority in writing of—————, a candidate, incurred
(or authorised) expenses on account of the holding of any public meeting (or upon
any advertisement, circular or publication or in any other way whatsoever) for the
purpose of promoting (or procuring) the election of and thereby com-

mitted an offence punishable under s. 171-H of the Indian Penal Code, and within
my cognizance.

And I hereby direct that you be tried on the said charge.

1714. Whoever being required by any law for the time
F . . . being in force or any rule having the force

tion accounts. p of law to keep accounts of expenses incurred

at, or in connection with, an election fails to
keep such accounts shall be punished with fine which may extend
to five hundred rupees.

SEC. *172 ] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 295

*5 ■

44 It is also made illegal for any one, unless authorised by a candidate to incur
any expenses in connection with the promotion of the candidates election and if
hy any law accounts have to be kept, failure to keep such accounts is made
penar (g).

Procedure : — Non cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

Sanction— is a condition precedent to the initiation of a prosecution under
this section, vide s. 196, Cr. P. Code.

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you, being required by law for the time being in force to wit ,

(or by any rule having the force of law, to wit ) to keep accounts of

expenses incurred at (or in connection with) at the election to wit , failed

to keep such accounts and thereby committed an offence punishable under a. 1 71 -I
of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

CHAPTER X.

Of contempts of the Lawful Authority of Public Servants.

172. Whoever absconds in order to avoid being served
Absconding to avoid with a summons, notice or order proceeding
service of summons or from any public servant legally competent,
other proceeding. as suc j 1 public servant, to issue suen sum-

mons, notice or order, shall be punished with simple imprison-
ment for a term which may extend to one month, or with fine
which may extend to five hundred rupees, or with both ;

or, if the summons or notice or order is to attend in person
or by agent, or to produce a document in a Court of Justice, with
simple imprisonment for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with
both.

“ To constitute an offence described in the first clause of this section, the
summons or notice, etc., must be a document actually issued or at the time of the
absconding about to be issued, by a legally authorised public serant. It must be
addressed to particular persons, and not by a mere general notification or procla-
mation intended for the public. And the absconding must be by one who knows
or has reason to know that he will be served with the notice, etc., if he does not hide
or absents himself. An involuntary absence as if he is arrested or detained'elsewhere
by sickness or other just cause, would, of course, be an answer to the charge. So
would an absence not originating in the desire to avoid service. The offence
punishable by the latter clause of the section is aggravated, because the summons
is for attendance in a Court of Justice " (h).

g) Statement of Object, and Reasons, Gazette of India (1920), part. V., p. 13®.

b.) Morgan and MacphefsOn Penal Code ’ p. 143.

206

THE INDIAN PENAL CODE

t CHAP/* ;

'it-. .

Procedure 2 — Non-cognizable— Summons— Bailable Non-compoundable--

Triable by any Magistrate and may be tried summarily. . "

Onus is on the prosecution (i). f

Prosecution without complaint by public servant not maintainable : — No Court
shall take cognizance of any offence punishable under Ss. 172 to 188 of the Indian
Penal Code, except on the complaint in writing of the public servant to whom he
is subordinate (j).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you, on or about the; , day of , at , absconded

in order to avoid being served with a summons (or notice or order) proceeding from

, (name the of public servant and state his office ) and thereby committed

an offence punishable under s. 17 2 of the Indian Penal Code, and within my cogni-
zance.

And I hereby direct that you be tried on the said charge.

Essential ingredients of the section : — In order to prove the commission
of offence under this section the prosecution must show that (I) a summons, notice,
or order has been issued, (2) from any public servant, legally competent to issue it
and (3) that the accused knew or had reason to believe that it had been issued (k).

* Absconds in order to avoid being served with a summons, notice or
order '? — To abscond in order to avoid service of process which has not been issued
is no offence under s. 172. ‘Absconding' does not necessarily imply change of
place but may be effected by concealment. If a person, having concealed himself
before process issues, continues to do so after it has issued, he absconds (1).

Knowledge is essential s— Mere absconding is not an offence under this
section. The section declares that a person is liable to punishment if he has ab-
sconded in order to avoid service. The absconding must be with a purpose. This
implies that the absconder knows or at least has reason to believe, that the process
has issed. When he knows, or has reason to believe, that it has issued, he may be
unwilling to show contempt of the authority of the Court or officer who has issued it,
and may comply with it, or so conduct himself that service may be effected, but he
can hardly be said to be guilty of contempt of authority if he does not know, and
has no reason to believe the authority has been exercised, nor to be absconding to
prevent the service of a process, if he does not know nor has reason to believe that
it has issued (m).

* Summons, notice or order/ — This expression does not include warrant as
although it is an ‘ order ' yet it is an order to the police to arrest and produce the
accused before the Court (n). The provisions of this section do not cover the
absconding from a warrant of arrest (o).

* Proceeding from any public servant legally competent to Issue sum*
mons, notice or order 9 : — No contempt lies in disobeying an illegal order and
evading the same (p).

(i) Madapusi Srinivasava Ayyangar, (1818) 4 M. 393 (397).

(j) ' S. 195 of the amended Code of Criminal Procedure of 1923.
fk) Madapusi Srinivasava Ayyangar, (1818) 4 M. 393 (397).

(l) Ibid.

(m) Per Turner, C. J.. in Madapusi Srinivasava, (1818) 4 M. 394 at p. 397.

(n) Hossein Manjee , (1868) 9 W. R. 70 (Cr.) following Woomesh Ch under Ghost,
(1866) ; 6 W. R. 71 (Cr.) : Manjhi Mamud, (1905) 2 C. L. J. 625.

(o) Sheo Jangal Prosad, (1928) 50 A. 666 : 26 A. L. J. 443 : A. I. R, (1928) A.
232, following Woomesh Chunder Ghost, 5 W. R, (Cr.) 71 and Manjhi Mamud, (1905)
2 C. L. J .625.

(P) Hiralal , 1883 A. W. N. 222.

:V

\ Sfec. 173] OF CONTEMPTS OF LAWFUI. AUTHORITY OF PUB. SERVANTS 297

'V* :

'The second provides lor severer sentence t— Under this clause

* it is not sufficient to show that a person apprehending that a process will issue has

He may do so in the hope that his absence will deter the Court or

* officer from issuing the process, and he would not be guilty of the offence under
, this section (q).

173. Whoever in any manner intentionally prevents the

on himself, or on any other person,
summons or other pro- of any summons, notice or order proceeding

or preventing f rom a ny public servant legally competent,

publication thereof. t J r L i- . . r J L _

as such public servant, to issue such sum-
mons, notice or order,

or intentionally prevents the lawful affixing to any place of
any such summons, notice or order,

or intentionally removes any such summons, notice or order
from any place to which it is lawfully affixed,

or intentionally prevents the lawful making of any procla-
mation, under the authority of any public servant legally
competent, as such public servant, to direct such proclamation
to be made,

# shall be punished with simple imprisonment for a term
which may extend to one month, or with fine which may extend
to five hundred rupees, or with both ;

or, if the summons, notice, order or proclamation is to attend
in person or by agent, or to produce a document in a Court of
Justice, with simple imprisonment for a term which may extend
to six months, or with fine which may extend to one thousand
rupees, or with both.

This section deals with the prevention of service of process or other proceeding
issued by any public servant legally competent to issue the same.

' Scope : — This section applies to the prevention of the service of summons,
notice, or order ; whereas Ss. 225 and 225-B do not apply to summonses, notices
or orders and in the same way this section does not apply to warrants of arrest,
etc. They are two different and distinct offences and the offence under this section is
not a minor offence of s. 225 (r),

_ Procedure : — Not cognizable — Summons — Bailable — Not compoundable—
Triable by Presidency Magistrate or Magistrate of the first or second class.

Complaiint : — Conviction under this section without complaint as required
under s. 195, Cr. P. Code, is illegal (s).

' Former acquittal in a case under this section is no bar to the subsequent prose-
cution of the accused under s. 1 74 of the Code where the previous complaint could
not be taken cognizance of because of the provisions of s. 403, Cr. P. Code (t).

Essential ingredients of the offence (1) Prevention. (2) Intention, (3)
Lawful authority in the public servant

(q) Srinivasa Ayyangar, (1881) 4 M. 393 (397).

(r) Srinarain Singh, (1942). 47 A. 112 (115, 116).

(s) Ibid.

<t) Ambaji, (1928) 02 mSlfifi 80 Bom. L. R. 380.

298

THE INDIAN PENAL CODE

[ CHAP. JC

Prevention of service A refusal to give a receipt for a summons is not an
offence under this section (u) ; a refusal to receive a summons is not an offence as
the refusal cannot be said to be a prevention of service (v).

Throwingdown of the summons is no offence (w). A refusal to receives
summons is not an offence under this section. What seems to be required undfer
the section is some act of opposition offered to the officer serving the process (x).

The mere tender to a person of a summons is sufficient and refusal by him to
receive it does not constitute an offence under this section (y). This case was
explained in Budhas case (z).

The Madras High Court has held that a witness in refusing to receive a sum-*
mons tendered to him to appear and give evidence cannot be charged under s; 173
or s. 1 74 of the Code as under Act III of 1869, s. 3 requires personal service and the
summons in that case being in duplicate there was no personal service bv the
tender (a). A mere refusal to accept a subpoena issued under s. 160 of the
Cr. P. Code does not constitute the offence under this section (b). Where a police-
constable took a summons to the accused for the purpose of serving it on him and the
accused refused to take the summons and sign an acknowledgment, the Allahabad
High Court held that this is not enough to constitute an offence under this
section (c).

Personal service— what constitutes A man, who gets away from the
serving officer with the obvious intention of not allowing him to hold any communi-
cation with him at all and shuts himself in his house, is intentionally preventing
service either by tender or by delivery and is liable to conviction under this
section (d).

A person cannot be convicted under s. 1 73 for refusing to serve as a special
constable (e).

174. Whoever, being legally bound to attend in person or
Non-attendance in by an agent at a certain place and time in
obedience to an order obedience to a summons, notice.order or
from public servant. proclamation proceeding from any ' public

servant legally competent, as such public servant, to issue the
same,

intentionally omits to attend at that place or time, or departs
from the place where he is bound to attend before the time at
which it is lawful for him to depart.

(u) Kalaya, (1868) 6 B. H. C. R. (Cr.) 34, followed in Bhoobuneshwar Dutt, (1877)

3 C. 621 and Krishna Govinda Das, (1892) 20 C. 368.

(v) Ahmad Hussain Khan, (1909) 31 A. 608; Punamali Natulan , (1882) 6 M.
199, followed in Sahdeo Rat, (1918) 40 A. 677 : 16 A. L. J. 463 : 19 Cr. L. J. 746 368 : 46 .
I. C. 622 ; U . Thudamawasa, (1923) 1 Hang. 49 : 2 B. L. J. 22 : 24 Cr. L. J. 737 s 74
I. C. 66 : A. I. R. (1923) Rang. 146.

(w) Anemya Nadan , (1882) 6 M. 200 (n) and Zappantis , (1920) 3 U. B. R. :

909 • 91 Cr T T * f»7 1 C Q9ft

(x) v‘. Thudamawasa . (1923) A. I. R. 49 : 24 Cr. L. J. 737 : 2 Bur. L. J. 22 :
74 I. C. 65 : A. L. R. (1923) Rang. 146.

(y) Sahadeo Rai, (1918) 40 A. 577 : 16 A. L. J. 453.

(z) (1927) 26 A. L. J. 107 : A. I. R. (1928) A. 118.

(a) Guruswamy Allambivian, (1912) 11 M. L. }. 405 : (1912) M. W. N. 628 : 13
Cr. L. J. 245 : 14 I. C. 597.

(b) Chandika Prosad, (1918) 19 Cr. L. J. 801 : 46 1. C. 817 (Oudh) ; Bahadura,
(1925) 24 A. L. J. 215 : 92 I. C. 460.

(c) Debigir Tapdhari, (1924) 23 A. L. J. 148 : A. I. R. (1925) All. 322.

(d) Budhna, (1927) 26 A. L. J. 107.

(e) Gopinath Paryah, (1868) 10 C. W. N. 82. ** > *

SEC. 1741 OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 2d*

shall be punished with simple imprisonment for a term which
may extend to one month, or with fine which may extend to five
hundred rupees, or with both ;

or, if the summons, notice, order or proclamation is to attend
in person or by agent in a Court of Justice, with simple imprison-
ment for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.

Illustrations.

(а) A being legally bound to appear before the Supreme Court at Calcutta in
obedience to a subpoena issuing from that Court, intentionally omits to appear. A
has committed the offence defined in this section.

(б) A being legally bound to appear before a Zila Judge, as a witness, in obe-
dience to a summons issued by that Zila Judge, intentionally omits to appear. A
has committed the offence defined in this section.

Public servant — s. 21.

This section penalises non-attendance in obedience to an order from a public
servant to attend at a certain place and time. This section does not apply to the
case of a defendant escaping from custody under a warrant in execution of a decree
of a civil Court (f).

^ Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by any Magistrate and triable summarily.

A Deputy Magistrate not in charge of a division of a district has no jurisdiction
to try a case under this section (g).

Complaint : — No Court shall take cognizance of an offence under this section
except with the previous complaint in writing of the public servant concerned or of
some other public servant to whom he is subordinate (h).

A magistrate cannot take cognizance of an offence under this section committed
against his own Court but he is bound to send the case for trial before another magis-
trate (i). The offence under this section being one of those referred to in s. 195,
Cr. P. Code, cannot be tried by the officer whose order was disobeyed (j).

In order to sustain a conviction under this section, the summons must
have been issued by a public servant legally competent as such public servant to issue
the same and that the accused must have intentionally omitted to attend in
obedience to such summons (k).

The mere production of the summons to the accused with an endorsement of
service is not sufficient proof of service in the absence of the evidence of the officer
who i$ said to have served the summons (1).

Separate sentences : — Where a person has given recognizance bond for
appearance, it is not usual to sentence him for non-appearance and forfeit the bond
at the same time although law allows it (m).

* being legally bound to attend in person or by agent at a certain
place and time in obedience to a summohs, notice, or order or proclamation

i f) Sardar Pattu, 1 Bom. H. C. R. 38.
g) Tajvomuddy Lahoree , (1808) 10 W. R. (Cr.) 4.

|h) S. 196, Code of Criminal Procedure.

£) Chandra Sekkar Roy t 13 W. R. (Cr.) 66.

S ) Deo Sharan Tiwari, (1928) 16 A. L. J. 432.

:) Shiam Lai, 12 A. L. J. 080 : 16 Cr. L. J. 696 : 26 I. C. 347.
1 1) Odda Kolanthan , (1889) 1 Weir 86. .

(m) Shih Per shad Chahrmarty, (1872) 17 W. R. (Cr.) 38.

300

THE ItfDlAN PENAt CODE

t CHAP. X

proceeding from any public servant legally competent at public
servant to issue tbe same '—A conviction for non-attendance in obedience to
an order from a public 1 servant under this section cannot be had unleu the
person summoned was legally bound to attend and intentionally omitted to
attend f (n).

Issue' of citation under Land Revenue Act to a defaulter : — The issue of a
citation to an alleged defaulter under s. 147 of the Land Revenue Act does not in-
volve in any legal liability to attend and failure does not constitute an offence under
this* section (o).

Refusal to appear* to show cause : — In proceedings under s. 36 of the Legal
Practitioner's Act against an alleged tout his presence cannot be compelled either
to show cause or receive orders in the case and that accordingly refusal to appear
does not constitute an offence under this section (p).

Order to appear on penalty : — Where a complainant was ordered to appear on
the day of hearing on penalty that his complaint would be dismissed on his failure
to appear before the Court, the Lahore High Court held that a prosecution for
disobedience of the order is illegal as there was no order for his personal appearance*
nor would such an order be justified (q).

Verbal order not sufficient Where there is nothing to show that a Canton-
ment Magistrate was legally competent to order the accused by verbal order to
attend his office, or which the accused was legally bound to obey* held that the
accused could not be convicted under this section (r).

* by an agent 9 : — Where in a summons case on the day fixed for trial* a muk-
tear appeared foivtheaccused, who asked the magistrate to dispense with the person-
al attendance of the accused, and thereupon the accused was asked to show cause
why^he should not be prosecuted under this section, held that the accused did make
an appearance though not a personal one on service of summons, but that he did not
personally attend should not under the circumstances have been regarded as an
offence under this section (s). Where, in a case under the Land Acquisition Act,
the accused was ordered to appear in person, who appeared through a pleader, and
on«the next date of hearing he appeared and explained that the notice being in
Arabic, he could not understand that he was required to appear in person, the
Allahabad High Court held that the accused was not guilty (t).

(at a certain place and time) The offence contemplated by this section is
not an omission on the part of the person summoned to be at a particular place and
time, but an omission to appear at such time or place* before a specified
public functionary (u). Where a summons did not mention the place at which* or
the time of the day when, the attendance of the person summoned was required*
held that such person could not lawfully be punished under s. 174 of the Code for
non-attendance in obedience to such summons (v).

Sreenath Q kosh ' (1868 J 10 w. R (Cr>) 33 ; KUota Ram , (1907) P L R. No. 37

of 1907.

(o) Ban war Hal, (1926) 25 A. L. J. 38, following Birghu Singh , (1926) 49 A. 205 :
24 A. L. J. 1001, referred to in Tikaram , (1928) 26 A. L. J. 1201 (F. B.) ; to the same
effect see Himanchand Singh , (1930): 62 A. 668 ; 28 A. L. J. 354 (F. B.) : A. I. R.
(1930) A. 265 (F. B.), but contra Chanduka Singh , (1927) 29 Cr. L. J. 94 : 106 I. C.
686 : A. I. R. (1928) Oudh 122,

(p) P. J . Money , (1928) 6 R. 529.

(q) Murad, (1920) 2 L. L. J. 539.

(r) Ramchand, (1922) 23 Cr. L. J. 230 : 66 I. C. 70 (Lab.).

is) Durga Das v. Urnesh Chandra, (1900) 27 C. 985.

(t) Balbhader, (1911) 8 A. L. J. 537 : 12 Cr. L. J. 432 : 11 1. C. 616.

(u) Krishtappa , (1896) 20 M. 31.

(v) Ramsaran, (1882) 5 A. 7 ; Bholanath . (1893) A. W. N. 109; Narayan Rtddi ,
(1892) 1 Wctr 100.

SEC. 174] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 301

Where a subpoena did not state a definite place (or attendance, held, disobe-
dience thereof is not an offence punishable under this section (w).

The proper construction of this section is that the place where a witness is
summoned to attend must be in British India (x).

Summons, order, etc*, must proceed from any public servant legally
competent as such public servant to issue the same.— -The summons must
be legal. Where the summons was not issued according to law, held that the
conviction is not maintainable (y).

Disobedience to a summons wrongly issued by the Collector under U. P. Land
Revenue Act is not an offence under this section (z).

A Receiver appointed under s. 56 of the Land Registration Act is not a public
servant within the terms of Ss. 1 74, 1 75, 1 86 and 1 88 of the Code and disobedience
to his order to attend before the Collector with the collection papers and rent-receipts
did not constitute an offence either under this section or under $. 1 75 (a), but in
Madras it has been held that under Madras Act III of 1869 the Revenue officers
are not made competent to issue summons (b) and overruling Vanan Subraman -
yam's case (c), it was held in the Full Bench case of Subbana (d), that a summons
may be issued for any purpose of any inquiry, however general, which the officer
is empowered to make for purposes of administration and intentional . omission
to attend in obedience to such summons would be punishable under this section.
A tahshilder is not competent to issue summons under the said Madras Act to give
evidence in an inquiry whether or not the petitioner was a pauper £e). .

Service of summons , etc. : — Where there was no legal service, conviction under
this section was held illegal (f). It is necessary to prove that the accused knew (hat
he was required to attend. The mere affixing of the summons to the house of the
person bound to attend is not sufficient (g). Where on the day appointed for ex-
amination on commission of a lady, the doors were closed and proceedings were
taken under this section, held notice on a pleader was insufficient for a conviction
under this section (h). Non-attendance in obedience to a summons by a Sub-
Inspector of Police requiring amin to give evidence at a police investigation
amounts to an offence under this section (i).

Order : — Where there was no order enjoining upon a Vakil who was asked
to show cause against alleged professional misconduct to appear personally before
the Munsif, held that the proceeding under this section ought to be quashed and
was accordingly quashed (j).

4 intentionally omits to attend at that place or time 9 1— 1 What is made
punishable under this section is the intentional disobedience to the summons of a
Court. The word * intentional \ has not been defined in the Code, but it

Hukum Singh, (1926) 24 A. L. J. 636: 27 Cr. L. J. 607 : A. I. R. (1926)
Paranga, (1893} 16 M. 463.

Bcharilal , (1921) 22 Cr. L. J. 79 : 69 I. C. 336 (All.).

Watts Ali , (1916) 14 A. L. J. 1069: 17 Cr. L. J. 471 : 36 I. C. 161.

Ebrahim Sircar , (1901) 29 C. 236: 6 C. W. N. 141.

Srinivasa Ayyangar , (1881) 4 M. 393.

(1882) 6 M. 377.

(1883) 7 M. 197 (F. B.) at p. 200.

Varathappa Chettiar, (1889) 12 M. 297.

Hurynath Chowdhury, (1865) 7 W. R. (Cr.) 58.

Ganapathe, (1882) 1 Weir 85 ; Periana Malatvaran , (1884) 1 Weir 84.
ini Saraswati Debt v. Maharaja Darga, (1902) 6 C. W. N. 927.

(i) In re , Gunapathi V enkataramiah, (1917) 18 Cr. L. J. 733 : 40 I. C. 733 (Mad.).,
(J) In the matter of Prahash Chandra Sarkar, (190$) 7 C. W. N. 797.

(w)

,474.

(*)

(y)

(«>

(a)

(b)

(c)

(d)

(e)
<0
( 6 )
(b)

302 THE INDIAN PENAL CODE [ CHAP. X

has been interpreted to mean non-attendance which amounts to willul dis-
obedience (k).

Before conviction the Court i$ bound to decide whether there was an intentional
disobedience to the summons after giving an opportunity to the accused of explain-
ing the same (I). The prosecution must prove intentional non-attendance. It is
not merely non-attendance but non-attendance amounting to wilful dis-obe-
dience which is punishable under this section(m). If a person is sufficiently incapa-
citated by illness to have given up his ordinary avocations and cannot attend Court
in obedience to a summons, and if he is so ill that his absence cannot be regarded
as a wilful disobedience to the Court's order, the fact that he does not send a man to
inform the Court of his illness would not render him liable under this section (n).
A conviction under this section cannot be sustained unless it is shown that the
omission to appear in answer to a summons was intentional. Where* on the day
the accused was summoned to appear to answer a charge under the Motor Vehicles
Act, the accused had to appear as an advocate for a client in the High Court of
Rangoon and he had not been served in sufficient time to enable other arrangements
to be made and he had instructed a counsel to represent him and ask for an adjourn-
ment, held that the accused could not under those circumstances be said to have
intentionally disobeyed the summons and accordingly the conviction under this
section was set aside (o).

* or intentionally departs from the place where he is bound to attend
before the time at which it is lawful for him to depart 9 : — In order to make
a person sumrppned as a witness liable under this section, the fact must be that he
intentionally omitted to attend at the place or time mentioned in the summons or
ttat he wilfully departed from the place where he had attended before the time at
which it was lawful for him to depart (p). The Bombay High Court has held
that a man, who in obedience to a summons to appear and answer a criminal charge
attends a magistrate's Court, but finding the magistrate not present at the time
mentioned in the Summons departs without waiting for a reasonable time, is guilty
of an offence under this section (q).

175. Whoever, being legally bound to produce or deliver

Omission to produce U P , an X document to any public servant, as
document to pubUc ser- such, intentionally omits so to produce or

bound to produce it*. 1 P * e P i ^ ^

simple imprisonment tor a term which may
extend to one month, or with fine which may extend to five hun-
dred rupees, or with both ;

or, if the^ document is to be produced or delivered up to*
Court of Justice, with simple imprisonment for a term which
may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

(k) Malsingh, (1922) 24 Cr. L. J. 433 : 72 I. C. 693 : A. I. R. (1923) Lah. 163
following Srcenath Chose, (1868) 10 W. R. (Cr.) 33.

(l) Ramzan, (1906) P. W. R. No. 27 of 1907.

(m) Ungun Lall t (1869) IN.W.P.H. C. R. 303.

(n) Bohra Bit Bal, (1922) 20 A. L. J. 192 : 23 Cr. L. J. 208 : 66 I. C. 864 :
A. I. R. (1922) Ail. 82.

(o) /. R. Das , (1923) 1 R. 649 : 2 Bur. L. J. 146 : 26 Cr. L. J. 229: 76 I. C.

693 : A. I. R. (1924) Rang. 35. J

(p) Sutherland , (1872) 14 W. R. (Cr.) 20.

(q) Kisan Bepu , (1886) 10 B. 93.

SECS. 175-76] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 303

Illustration .

A being legally bound to produce a document before a Zila Court, intentionally
omits to produce the same. A has committed the offence define)! in this section.

Legally bound— s. 43. Public servant — s. 21. Court of Jtfetice — s. 20.

Scope : — This section punishes intentional non-production of a document
by a person legally bound to produce it (r). This section and other sections of the
Code dealing with contempt confer no summary jurisdiction to line or im-
prisonment for contempt (s).

For procedure in cases of contempt for any offence referred to in Ss. 175,
178, 179, 180, or 228, I. P. C., sec s. 480 of the Cr. P. Code.

Procedure 2 — Non-cognizable — Summons —Bailable — Not compoundable —
Triable by the Court in which the offence is committed, subject to the provisions
of Chapter XXXV of the Procedure Code or if not committed in a Court — Triable
by Presidency Magistrate or Magistrate of . the first or second class — Triable
summarily.

Complaint — in writing by the public servant concerned or of some other public
servant to whom he is subordinate is essential for cognizance of an offence under
this section (t).

Omission to produce a document In order to constitute an offence
under this section, it is necessary for the prosecution to prove that the accused was
legally bound to produce or deliver up the documents, and from this it follows that
the public servant calling for the production of the document was legally competent
to order its production, e.g., a Sub-Registrar has no such power and a person who
refused to produce the original document registered which it was alleged to have
been tampered with did not commit the offence (u). The Patna High Court has held
that to sustain a conviction under this section it must be shown that the accused^were
in possession of the document required to be produced and that when it is
doubtful which of the two persons had it, they could not be convicted (v).

There is no law compelling an accused person undergoing his trial to produce
a document incriminating himself and the refusal by the accused is not punishable (w).

176. Whoever, being legally bound to give any notice or to
furnish information on any subject to any
noticTorTnformatiou to public servant, as such, intentionally omits
public servant by per- to give such notice or to furnish such inform-

give i' t egally boBnd t0 ation in the manner and at the time re-
quired by law, shall be punished with simple
imprisonment for a term which may extend to one month, or with
fine which may extend to five hundred rupees, or with both ;

or, if the notice or information required to be given respects
the commission of an offence, or is required for the purpose of
preventing the commission of an offence, or in order to the appre-
hension of an offender, with simple imprisonment for a term
which may extend to six months, or with fine which may extend
to one thousand rupees or with both.

(r) Premchand Dowlat Ram, (1887) 12 B. 63 ; Salig Ram, (1890) A. W. N. 171.

(s) Chagmal Saraogi, (1919) 23 C. W. N. 389 (391).

(t) S. 195 of the amended Code of Cri miual Procedure ; see Ss 480-482 of the Code
of Criminal Procedure of 1923.

(u) AsmcUulla Sirdar , (1905) 2 C. L. J. 621; Phoolckand Brojabashee, (18/4)
1 6 W fit (Cr ) 35

(v) bamri Ram, (1917) 4 Pat. L. W. 65 : 19 Cr. L. J. 217 : 48 I. C. , 793.

(w) Ishwar Chunder dhosat, (1908) 8 C. L. J. 820 : 12 C. W. N. 1016.

804

THE INDIAN PENAL CODE

[CHAP. X

Scope r— This section applies to persons upon whom an obligation is imposed
by law to furnish certain information to public servants, and the penalty which the
law provides ^intended to apply to parties who commit an intentional breach of
such obligation (*).

Object The object of the law clearly is that the earlier information should
be communicated by those who are in the best position to obtain the same, or who,
from their connection with the law, are in some authority and should accordingly
be made responsible for his duty (y).

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Complaint : — A prosecution for an offence under Ss. 176, 109, L P. C., requires
sanction under s. 195, Cr. P. Code, which is not necessary for an offence under
s. 189 I. P. C. On appeal the conviction cannot be altered to one under s. 189 (z).

Charge : — Being a summons case, no charge need be framed but if a charge
is framed, it should distinctly set forth the particular offence in respect of which
the accused either omitted to give information or gave information which he knew
to be false ; and it should appear precisely what his duty was in the matter (a).

Sentence Sentence under this section should commence at once according
to Rule 464 (2) of the Punjab Jail Manual and should not be postponed till the
expiry of imprisonment inflicted on the accused for not furnishing security (b).

* being legally bound to give any notice or to furnish information to any
public servant 9 This section applies to persons who are legally bound to give
information.

, # Some Acts have imposed an obligation to furnish information, e.g., the Criminal
Procedure Code, (Ss. 44 and 45) ; the Coroner’s Act (Act IV of 1871, s. 17) ; the
Criminal Tribes Act, (Act XXVII of 1871, s. 9) ; the Foreigners Act, (Act 1864 of
g. 20) ; the Dramatic Performance Act (Act XIX of 1 876, s. 1) ; the Probate and Ad-
ministration Act, (Act V of 1881, s. 98 (3) ; the Indian Succession Act, (Act X of
1865, s. 277) ; the Income Tax Act, (Act II of 1866, s. 45) ; the City of Bombay
Municipal Act, (Act III of 1888, Ss. 155, 187, 473) : the Indian Works of Defence
Act, [(Act VII of 1903, 8. 11 (2)]; the Indian Mines Act (Act VIII o* 1901,
s. 1 1); the Land Acquisition Act, [ (Act 1 of 1894, s. 10 (2) ] ; the Registration
Act [(Act XVI of 1908, s .82) J.

Where the owner of a house was prosecuted under this section for failure to give ^
information to the police of a suicide by a member of his family by falling into a
well in the compound of his house, held that he was not guilty of an offence under
[ this section, because s. 45(1), Cr. P. Code, does not apply to the owner of a house (o),

* intentionally omits to give such notice or to furnish such information
in die manner and at the time required by law f t —' The provisions of this
section and s. 90 of the Criminal Procedure Code ought not to be used for the
purpose of vexation but in order to secure due information to magistrates "and the*
police cf offences committed within their jurisdiction (d). Where an accused who
was required under s. 565 of the Code of Criminal Procedure to notify his residence *
was absent from his house for one night only without notifying change of residence

(x) Pkool Ckand Brojabashee „ (1871) 16 W. R. (Cr.) 35.

(y) Matuki Misser , (1885) 11 C. 619.

(z) Arjan Mai , (1922) 3 L. 440.

(a) Per Jackson, J., in Moosubroo , (1867) 8 W. R. (Cr.) 37.

(b) Chet Singh , (1918) P. L. R. No. 97 of 1918 : 20 Cr. L. J. 316 : 50 I.C. 492.

(c) Hint Sathu Dcsla, (1928) 53 B. 184: 30 Bom. L. R. 1570.

(d) Sashibhusan Chahraverty, (1878) 4 C. 623 ; Gopal Singh , (1892) 20 C. 816;

Pandaya Nayak, (1884) 7 M. 436 ; Sher Singh , (1888) P. R. No. 5 of 1889 ; Sada,
(1893) Eat. Unrep. Cr. c. 674.

SEC. 177] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 305

and was accordingly prosecuted under this section, the Madras High Court held
that such temporary absence did not amount to a change of residence and the
conviction under this section was set aside (e).

A person cannot be convicted of an intentional omission under this section,
because he fails to perform an entirely superfluous act in furnishing them with the
information over again (f).

Servant’s liability ; — The concealment of a suspicious death is punishable
under this section but mere servants do not come within the category of persons
who are bound to communicate an occurrence of this sort (g).

177 . Whoever, being legally bound to furnish information on
...... . , any subject to any public servant, as such,

formation ! a sc furnishes, as true, information on the subject

which he knows or has reason to believe
to be false, shall be punished with simple imprisonment for a
term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both ;

or, if the information which he is legally bound to give
respects the commission of an offence, or is required for the
purpose of preventing the commission of an offence, or in order
to the apprehension of an offender, with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.

Explanation . — In section 1 76 and in this section the word
“ offence ” includes any act commuted at any place out of British
India, which, if committed in British India, would be punishable
under any of the following sections, namely, 302, 304, 382, 392,
393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458,
459 and 460 ; and the word “ offender ” includes any person who
is alleged to have been guilty of any such act.

Illustrations .

(a) A , a landholder, knowing of the commission of a murder within the limits
of his estate, wilfully misinforms the Magistrate of the district that the death has
occurred by accident in consequence of the bite of a snake. A is guilty of the offence
defined in this section.

(b) A, a village watchman, knowing that a considerable body of strangers has
passed through his village in order to commit a dacoity in the house of Z, a wealthy
merchant residing in a neighbouring place, and being bound, under clause 5, section
VII, Regulation III, 1821, of the Bengal Code, to give early and punctual information
of the above fact to the officer of the nearest police-station, wilfully misinforms the
police-officer that a body of suspicious characters passed through the village jwith a
view to commit dacoity in a certain distant place in a different direction. Here A
is guilty of the offence defined in the latter part of this section.

This section deals with the giving of false information while the preceding
section dealt with the omission to give information.

(e) Re Naddi Chengadu, (1916) 40 M. 789.

(f) In re. Pavallimankhal Narayan Nambudripad, (1914) 17 M. L. J. 263 : (1915)

M. W. N. 276 : 16 Cr. L. J. 219 : 27 T. C. 843. „

(g) Tharki , (1011) P. W. R, No. 17 of 1911 (Cr.) : 12 Cr. L. J. 425 : VI I. C.

609 .

306 THE INDIAN PENAL CODE [ CHAP. X

Legislative changes This ' explanation * was added by the Indian Criminal
Law Amendment Act, 1894 (III of 1894), s. 5.

Scope : — This section does not apply to the case of any person who, examined
by a police officer, makes a false statement, but to cases where, by law, landholders
or village-watchmen are bound to give information and to other analogous cases (h).
The first clause of this section deals with ‘ being legally bound to furnish information*
etc., but sending in a false * nil * return to the official superior of the accused
and making a false statement does not come within the provisions of this section,
although he may be guilty of a breach of a departmental order (i).

The essence of an offence under this section (and s. 52 of the Income-Tax
Act) lies in the verification of an untrue statement, and, provided the statement
was deliberately false or not believed to be true, subsequent rectification cannot
make any the less offence though it may be considered as an extenuating circum-
stance in awarding sentence (j).

The information which under the second branch of this section a person is
legally bound to give ‘ for the purpose of preventing the commission of the offence *
relates not to the commission of offences generally but to the commission of some
particular offence (k).

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.
If the offence falls under the first clause — offence triable summarily.

Place of trial A charge under this section within the meaning of s. 40
of the Income-Tax Act can be legally tried at the place where the verification is
made (1).

Complaint — by public servants is essential, vide s. 195 of the amended Code
of Criminal Procedure of 1923.

Charge : — The first clause deals with a summons case. A charge must be
framed if the offence falls under the second clause, and it should distinctly set forth
the particular offence in respect of which the accused gave the information which
he knew to be false ; and it should appear precisely what his duty was in the mattof (m).

Form of charge :—/ ( name and office of Magistrate, etc.) hereby charge
you ( name of the accused) as follows

That you, on or about the day of -, at , being legally

bound to furnish information on any subject, to wit, to a public

servant, furnished as true the information, to wit , on the subject which

you knew (or had reason to believe) to be false, and the information which you were
legally bound to give was in respect of commission (or prevention) of an offence (or
apprehension of an offender) and thereby committed an offence punishable under
s. 177 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

(h) Lukhee Singh ~ (1809) 12 \V. R. (Cr.) 23; see Sankara Lingakone, (1900)
23 M> 344 >

(i) Appaya, (1891) 14 M. 485, dissenting from Virasami Mudali, (1881) 4 M.

144.

(j) Ganga Sugar, 28 A L. J. 26 : A. I. R (1929) All. 919.

(k) Panaullah, (1887) 15 C. 386.

(l) Mokideen Pakiri Marakayar, (1921) 45 M. 839 : 43 M. L. J. 476: 16 L. W.
335 : 31 M. L. T. 282 : (1922) M. W N. 690 : 23 Cr. L. J. 619 ; 68 J. C. 843 : A. Ii R.
(1923) Mad. 50 (2).

(m) Moosubroo, (1867) 8 W. R. (Cr.) 37.

SEC. 178] of contempts of lawful authority of pub. servants 307

* Furnishing false information 9 : — Persons who are under legal obligation
to furnish information to public servants come under the purview of this section.
S. 44 of the Code of Criminal Procedure imposes such legal obligation on the pub-
lic and under s. 45 of that Code village-headman, accountants and landholders
and others are bound to report or furnish information. The public were under
the Criminal Procedure Code of 1882 bound to answer under s. 161 all questions
relating to investigation by police, but now this section does not apply to a person
refusing to answer truly the questions by police (n).

4 furnishes as true information on the subject which he knows or has
reason to believe to be false 9 : — Such information must be true or believed
to be true (o). It is not necessary to constitute an offence under this section that
the person furnishing the false information should deceive any one. All that is
necessary is that the information furnished should be either known to be false,
or not believe to be true (p).

This section will not apply unless the omission to give information was in-
tentional (q).

A police constable who falsely reported to his superior officer while employed
on round duties about some bad characters under surveilliance that they were
present at their houses was found guilty under the first part of the section (r).

* No offence 9 where no legal obligation to furnish information : —

Persons who are not 4 legally bound * to furnish information cannot be dealt with
under this section (s).

False statements in memorandum of appeal do not come under this section
since verification is not necessary (t).

178. Whoever refuses to bind himself by an oath or affirma-
.. tion to state the truth, when required so to

affirmation when duly bind himself by a public servant legally
required by public competent to require that he shall so bind

himself, shall be punished with simple. impri-
sonment for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.

Oath — s. 5 1 . Public servant — s. 2 1 .

Legislative changes : — This section has been amended by the addition of
the words 4 or affirmation * which were inserted by the Indian Oaths Act, 1873
(X of 1873) s. 15.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by the Court in which the offence is committed, subject to the provisions
of chapter XXXV of the Code of Criminal Procedure, — or if not committed in a
Court — Triable by Presidency Magistrate or Magistrate of the first or second
class— Triable summarily.

Complaint — by public servants is necessary for prosecution under this section,
vide 8. 195, Cr. P. Code. See also Ss. 480 and 482, Cr. P. Code, where the proce-
dure in cases of an offence defined in this section is given.

* 'faT Luchee Singh, (1869) 12 W. R, (Cr.) 23.

(o) Mahomed Wasil, 13 C. W. N. 191 : 4 I. C. 678.

(p) Ibid .

(q) Zerikhan , 8 Bur. L. T. 82 : 15 Cr. L. J. 603.

(r) Panautulla, 616 (1887) 16 C. 386. xr . 17

(s) In re. Pavallimanakhal Narayan Nambudripad , (1915) M. W. N. 2 to .

M. L. T. 263 : 16 Cr. L. J. 219 : 27 I. C. 843 ; see also Appaya , (1890) 14 M. 484.

(t) Ghanaya, (1879) P. R. No. 12 of 1879.

308

THE INDIAN PENAL CODE

[ CHAP. X

Where at the same trial an accused was charged with two offences under this
section, and two offences under s. 179, held that s. 234, Cr. P. Code, had not been
contravened (u). In Bepin Pal’s case (u) there was no prejudice as he was sentenced
practically to one punishment.

179. Whoever, being legally bound to state the truth on any

v . u b^ US servant X- sub i ect to an V P ubbc servant refuses to
ised to question. answer any question demanded or him touch-

ing that subject by such public servant in the exercise of the legal
powers of such public servant, shall be punished with simple im-
prisonment for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both.

Scope : — This section is a continuation of the last but this section provides
for the case of a witness who being on oath refuses to answer questions relevant to
the enquiry (v).

Procedure : — Non -cognizable* — Summons — Bailable — Not compoundabie —
Triable by the Court in which the offence is committed, subject to the provisions
of Chapter XXXV, Cr. P. C. ; or if not committed in a Court, — by Presidency
Magistrate or Magistrate of the first or second class. For procedure see also

Ss. 480-482, 484-485, Cr. P. Code.

Complaint — by public servants would be required, vide s. 195(1) (a),
Cr. P. Code.

A Subordinate Judge has jurisdiction to grant a sanction to prosecute under
s. 195 (I) (a) , Cr. P. Code, in respect of an offence committed before
a commissioner appointed by the Subordinate Judge (w). 4 Sanction * must have
been loosely used for 4 complaint * by the Sub- Judge.

Legally bound : — See s. 43 supra. A person refusing to answer all questions
put by the police under s. 161, Criminal Procedure, cannot be punished under this
section (x). So a person in the position of complainant cannot be compelled to
answer all questions put to him by the Court and is not punishable under this
section (y).

An accused person is not bound to answer questions put to him by the Court
and is therefore not liable to prosecution under this section for refusing to answer
them (z).

* refuses to answer any question demanded of him 9 Where a Judge
asked a witness questions not with the object of discovering proof of real facts,
but with a view to criminal proceedings being taken against him, he was held not
bound to answer them and could not be punished under this section (a) ; but where
the Judge’s attempts to get at the truth from a witness in a murder case was
partially frustrated, held that the witness was guilty of an offence under s. 179, and
not under s. 228 (b).

(u) Bepin Chandra Pal , (1907) 35 C. 161 7 C. L. J. 63 : 7 Cr. L. J : 95.

(v) Bepin Chandra Pal, (1907) 7 C. L. J. 63.

(w) Nana Khanderav , (1927) 29 Bom. L. R. 1476.

(x) Sankaralinga K one, (1900) 27 M. 544.

(y) In re. Ganesh Narayan Sathe, (1889) 13 B. 600.

^ (z) 5. Tirmula Reddy , (1923) 47 M. 396: 46 M. L. J. 40: (1924) M. W. N.

(a) Hart Lakshman, (1885) 10 B. 185, followed in re. Ganesh Narayan Sethe ,

(1889) 13 B. 600. 77 I. C. 422. 7

(b) Hat Narain, (1924) 22 A. L. J. 1100.

SECS. 180-81 ] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 309

180. Whoever refuses to sign any statement made by him,

when required to sign that statement by a
st^ement 8 to s ' sn public servant legally competent to reauire
that he shall sign that statement, shall be
punished with simple imprisonment for a term which may extend
to three months, or with fine which may extend to five hundred
rupees, or with both.

Procedure : — Non-cognizablc — Summons — Bailable — Not compoundable —
Triable by the Court in which the offence is committed subject to the provisions
of Ch. XXXV ; or if not committed in a Court, — by a Presidency Magistrate or
Magistrate of the first or second class.

Complaint — by public servants is required (c).

Scope : — This section penalises refusal to sign a statement made by a person
under the legal obligation to sign it (c 1 )*

Refusal to sign any statement : — An accused person who refuses to sign a
statement or confession made at his trial in answer to questions put by the Court
commits no offence under this section (d), but it is an offence if he refuses to sign
his statement recorded under s. 364, Criminal Procedure Code (e).

Refusal to sign deposition : — A witness is not legally bound to sign his
deposition in a revenue enquiry (0 ; even in a civil or criminal case whenever a
statement is required to be signed, all the preliminaries such as the reading over
of the deposition must be complied with (g). Witnesses in civil cases are not
legally bound to sign or thumb-mark their depositions and they cannot be so
compelled ; nor are they liable to prosecution under this section (h).

181. Whoever, being legally bound by an oath or affirma-

_ , tion to state the truth on any subject to any

oath 1S or affirmation °to public servant or other person authorized
public servant or person by law to administer such oath or affirma-

a^oath*^ affirmation 1 tion, makes to such public servant or other
person as aforesaid, touching that subject,
any statement which is false, and which he either knows or believes
to be false or does not believe to be true, shall be punished with
imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.

Scope: — This section applies to proceedings other than judicial where s. 193
is applicable (i).

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first
class.

(c) S. 196, Cr. P. Code and s. 487, Cr. P. Code.

(cl) Fateh Alt, (1912) P. R. No. 8 of 1912 : 16 I. C. 621.

(d) Sirsappa, (1877) 4 B. 15, following Bat Ratan, 10 B. H. C. R. 166 (F. B.).

(e) Utnir Khan, (1917) 39 A. 399 : 16 A. L. J. 291 : 18 Cr. L. J. 659: 39 I. C.

703.

(f) 6 M. H. C. R. (App.) 14.

(g) Mahati Ram, (1881) A. W. N. 43.

(h) Fateh Alt, (1912) P. L. R. No. 245 of 1912 : P. R. No. 8 of 1912 : 10 I. C.
521 : P. W. R. No. 37 of 1912 : 13 Cr. L. J. 713.

(i) Balaram, (1867) 7 W. R. (Cr.) 104; Dayalji Endarji, (1871) 8 Bom. H. C. R.
Cr. C. 21 ; Nussurooddeen Shatwal . (1869) 11 W. R. (Cr.) 24.

310

THE INDIAN PENAL CODE

[CHAP. X

Complaint— by the public servant concerned is required (j).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name of
accused) as follows : —

That you, on or about the day of at , being legally

bound by an oath to state the truth on a certain subject, to wit , to

, a public servant (or person authorised by law to administer such oath) did

make to such public servant (or person as aforesaid), touching that subject, a state-
ment which was false, and which you knew (or believed) to be false, to wit

and thereby committed an offence punishable under s. 181 of the Indian

Penal Code, and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

4 being legally bound by an oath or affirmation to speak the truth ’ r—

A pleader, called upon in an enquiry under the Legal Practitioner’s Act, to ex-
plain his conduct, is not, in such proceeding, legally bound by an oath to speak the
truth, and if he stated what was false, he did not render himself amenable to the
charge under s. 181 or s. 193 of the Code (k). Although this case was not referred
to in in re. Attorney's case (1), Jenkins, C. j., held that an attorney can most cer-
tainly make an affidavit by way of answer to a Rule issued against him under the
disciplinary jurisdiction, but for a false statement in such an affidavit he is criminally
liable under s. 193.

* authorised by law to administer such oath’ — This section applies
only where the public servant is * authorised by law to administer an oath ’ (m).

Knowledge is essential : — One cannot be punished for making a false state-
ment on oath which he does not either know or believe to be true (n).

False statement — made in the course of judicial proceedings is punishable
under this section (o), and in a later case (p) the Madras High Court followed the
Calcutta and Bombay views.

The making of a false return of service of summons is an offence not under
s. 181 but under s. 193 (q).

Distinction between the offence under s. 181 and ••183 is one
of degree and net of kind:— They deal with the same offence . The
Madras High Court has held that a pleader against whom proceedings under the
Legal Practitioner’s Act is taken ought not to be compelled to make a statement
and his refusal to make a statement does not make him liable under this section (r),
but the Calcutta (s) and the Bombay High Courts (t) held that if the act charged
amounts to giving false evidence in a judicial proceeding the accused must be
committed under s. 193.

(j) S. 195, Cr. P. Code ; see also s. 487, Cr. P. Code.

(k) Kotta Subba Chetti , (1883) 6 M. 262.

(l) (1913) 41 C. 446 (459) : 19 C. W. N. 605 (S. B.).

(m) Niaz Alt, (1882) 5 A. 17 ; Andey Chetty, (1865) 2 M. H. C. R. 438 ; Kottah
Subba Chetty , (1883) 6 M. 252.

(n) Echan Meeah , 2 W. R. Cr. 47.

(o) Andey Chetty , (1865) 2 M. H. C. R. 438 \Kotta Subba Chetty , (1883) 6 M. 252 *
Contra Bularam , (1867) 7 W. R. Cr. 104 ; Dayalji Enderji, (1871) 8 Bom H C. R. 21

(p) (1869) 4 M. H. C. R. 18.

(q) Shyama Charan , (1867) 8 W. R. (Cr.) 27.

(r) Kottah Subba, (1883) 6 M. 252 ; Subbaya, (1889) 12 M. 451, followed in Matem
(1910) 33 A. 103.

(s) Heeraman, (1807) 8 W. R. (Cr.) 30; Nasiruddin, (1869) 11 W. R. (Cr.\ 24.

(t) Dayalji Anderji , (1871) 8 Bom. H. C. R. (Cr.) 21. ■

SEC. 182] OF contempts of lawful authority of pub. servants 311

* shall be punished with imprisonment * A sentence under this section
which awards no imprisonment is illegal (u).

182 . Whoever gives to any public servant any information
False information which he knows or believes to be false, in-
intent to cause tending thereby to cause, or knowing it to be

his lawful power to the likely that he will thereby cause, such public
injury of another person . servant —

(а) to do or omit anything which such public servant ought

not to do or omit if the true state of facts respecting
which such information is given were known by him,
or

(б) to use the lawful power of such public servant to the

injury or annoyance of any person,

shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.

Illustrations.

(a) A informs a Magistrate that Z , a police-officer, subordinate to such Magistrate,
has been guilty of neglect of duty or misconduct, knowing such information to be
false, and knowing it to be likely that the information will cause the Magistrate to
dismiss Z. A has committed the offence defined in this section.

(b) A falsely informs a public servant that Z has contraband salt in a secret
place, knowing such information to be false, and knowing that it is likely that the
consequence of the information will be a search of Z' s premises, attended with annoy-
ance to Z. A has committed the offence defined in this section.

(c) A falsely informs a policeman that he has been assaulted and robbed in the
neighbourhood of a particular village. He does not mention the name of any person
as one of his assailants, but knows it to be li kely that in consequence of this information
the police will make enquires and institute searches in the village to the annoyance
of the villagers or some of them. A has committed an offence under this section.

Legislative changes : — This section was substituted by the Criminal Law
Amendment Act 1895 (III of 1895). Under the old section cl. (A) came first, and
cl. (a) esme second.

The case of Gulam Ahmed Kazi , (14 C. 314) is expressly over-ruled by illus-
tration (c). The case of Periannan (4 M. 241) which was a decision under the old
section is lo longer good law (v).

Object : — Under this section the giving of false information to a public
servant is penal when either of the two consequences is intended to be caused
or is known to be likely to be caused, by the false information (w).

Scope : — In order to constitute the offence defined in s. 182 it is not necessary
that the public servant to whom false information is given should be induced to do
anything or to omit to do anything in consequence of such information. The gist
of the offence is not what action may or may not be taken by the public servant
to whom false information is given; but the intention or knowledge (to be inferred
from his conduct) of the person supplying such information (x). “ 1 he offence

(u) Anon , (1809) 4 M. H. C. R. 18,

(v) J onnalagadu Venkatarayudu, (1905) 28 M. 565 (567).

(w) GaneshKhandaro, (1891) 13 B. 506.

(x) Budk Sen , (1891) 13 A. 351 (355) where Gulam Ahmed Kazi, (1887)
314 was dissented from.

14 C.

312

THE INDIAN PENAL CODE

[ CHAP. fc

under this section is complete when false information is given to a public servant by
a person who believes it to be false, but who intends thereby to cause such public
servant to institute criminal proceedings against a third person " (y).

The fact that a person who has made a false report to the police has subse-
quently preferred a complaint in pari materia to a Magistrate, and thereby rendered
himself liable to prosecution under s. 21 1, is no bar to his being prosecuted under
s. 182 in respect of the report made to the police (z).

Distinction between Ss. 182 and 21l t — Calcutta view : — The offence
under s. 182 is complete when false information is given with the intents
specified in the section, whereas under s. 21 1 where a criminal proceeding had been
instituted the Court proceeds to determine the proceedings. In more serious cases
the proper section applicable is s. 21 1 (a).

Bombay view : — This section relates to cases of information given to officials
with the intention of causing or with knowledge that it is likely to cause the official
to do or omit to do, or to use his lawful powers to the injury or annoyance of any
person. This is a distinct offence from that described in s. 21 1. To bring a case
within this section, it is necessary for the prosecution to prove not merely absence
of reasonable or probable cause for giving the information but a positive knowledge
or belief of the falsity of the information given (b). The offence under this section
is a distinct offence from that described in s. 21 1 which relates to an attempt to put
the criminal Courts in motion against another person (c). This section is to be
interpreted not in isolation but in association with ?. 21 1, and it applies to cases
when the information to the public servant falls short of amounting to the insti-
tution of criminal proceedings against a defined person and falls short of amount-
ing to the false charging of a defined person with an offence as defined in
the Indian Penal Code (d). The criminal law makes a distinction between a 4 false
charge* which falls under s. 211 and 4 false information * given to the police in
which latter case the offence falls under s. 128 (e). Where on the Magistrate’s
own showing that the applicant was making a charge within the meaning of s. 21 1,
held , the complaint could only be laid under s. 21 1 and not under s. 182 (f).

Allahabad view : — The Allahabad High Court has held that it has been left
to the discretion of the Court to determine when and under what circumstances
prosecutions should be proceeded with under s. 182 or s. 21 1 (g). Although a false
charge made to the police constitutes an offence under this section it is also an offence
under the first part of s. 21 1 (h). Even where accused persons do not desire to
take action under s. 211, a Court of law has authority to complain against a
false complaint under this section (i). In a recent case the Allahabad High Court
has held that in no case has it been distinctly held that where a false report has been
made to the police and a similar complaint subsequently to the Magistrate, no

(y) Raghu Tiwari , (1893) 15 A. 336 (337).

(z) Bakshi, (1923) 46 A. 43.

(a) . Gati Mandal, (1905) 4 C. L. J. 89; Sarodaprosad Chattevjee, (1904) 32 C.
180; followed in Rambrose, (1928) 6 R. 578; Bhoktoram V. Heera Kolita , (1879)
5 C. 184, forming Mula, (1918) 17 A. L. J. 32.

(b) Ramchandra, (1906) 31 B. 204 (206).

(c) Ramkrishna Yeshovant, (1906) 9 Bom. L. R. 23 (37).

?d) Appaya Tatoba, (1913) 15 Bom. L. R. 574 : 14 Cr. L. J. 491 ; 20 I. C. 747.

(e) Per Ranade, J., in Raghavendra v. Kashinath Bhat, (1894) 19 B. 717 (725)*

(f) In re. Pampappa, (1 926) 28 Bom. L. R. 490, following Appaya Tatobe Munde .
(1918) 15 Bom. L. R. 674.

(g) Raghu Tewari, (1893) 15 A. 336 (338) ; see Rambrose, (1928) 6 R. 578.

(h) Hardwar Pal , (1 91 2) 34 A. 522 (523) .

(i) Ramdas v. Ganga Ram , A. I. R. (1928) A. 333.

SEC. 182] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 313

proceeding can be instituted by the police under this section in reference to the
false report made to them (j).

Madras view : — The Madras High Court has held that a person making a false
charge of theft to the police is liable to be punished under Ss. 182 and 211
even though his primary object may have been to protect himself rather than to
injure the persons falsely charged (k). Where the evidence discloses an offence
under s. 21 1 which is of a graver character without the jurisdiction of the tribunal
the Court may quash the conviction and sentence for the minor offence and direct
a trial before a tribunal having jurisdiction for the graver offence and whether it
will do so or not, is a question not of law, but of expediency on the facts of the
particular case (1). To constitute an offence under this section it is only necessary
that the information given by a public servant should be false to his knowledge,
whereas to constitute an offence under s. 21 1 it is necessary that the accused should
institute or cause to be instituted some criminal proceedings against another person
or should falsely charge him with having committed an offence (m). The Madras
High Court has recently pointed out the distinction between the elements of the
offences under this section and s. 2 1 1 in the case of Muthu Gounden (n). In another
case the same High Court has held that the word ‘ information ’ is not defined either
under the Indian Penal Code or the Criminal Procedure Code and upheld the order
of acquittal where a complainant in a case pending before the Bench Magistrate
applied before the District Magistrate for a transfer of the case and the application
which was supported by affidavits presented by the complainant’s pleader contain-
ed allegations against the President of the Bench, which on subsequent enquiry were
found to be false (o).

Patna view : — It is clear that an offence under s. 21 1 must always include an
offence under s. 182 and the Court is competent to proceed and convict for the
minor offence, even though the major offence under s. 2 \ 1 has been committed (p).
A person, against whom a complaint of an offence mentioned in s. 195(1), Cr. P,
Code, is made, is no more entitled to an opportunity to show cause why the
complaint should not be made than a person against whom a complaint of any
other offence is made (q).

Punjab view : — The Punjab Chief Court has held the same view as that of the
Bombay High Court (r).

Burma view : — The Burma Court has held that where there have been court
proceedings in consequence of a false report to the police, s. 21 1 is the appropriate
section to apply and is so in any event, where the case is a serious one, but this does
not make a prosecution under s. 182 of the code illegal. It is a question of expe-
diency whether the High Court will quash a conviction under s. 182 and direct a
trial under s. 21 1 (s). An offence under s. 21 1 includes an offence under s. 182,
the converse will not hold good (t).

(j) J* n 8 Bahadur Sing , (1928) 20 A. L. J. 533.

(k) Venkatta Reddi, (1897 1 Weir 120.

(l) 7 M. H. C. (App.) V.

(m) Malalo Obiah, (1917) M. W. N. 875 : 19 Cr. L. J. 38 : 42 I. C 998, following
Saminatha Thevar , (1912) M. W. N. 1125 4 : 13 Cr. L. J. 303 : 14 1. C. 707.

(n) Muthu Gounden , (1925) M. W. N. 108.

(o) Public Prosecutor X.Kata Prakasam , (1925) M. W. N. 146 : 47 M. L. J. 658 :
A. 1. R. (1925) Mad. 143.

(p) Daroga Gope t (1925) 5 P. 33, following Bhahriram V. Heera Kolita , (1880)
5 C. 184 ; Banti Pande , A.I. R. (1930) Pat. 500.

(q) Subhag Ahir, (1931) 11 P. 155, following Permavand Brahmachari, (1927)

10 p; L. TV 618*

(r) Muthra V. Raoa t (1870) P. R. No. 16 of 1870.

(s) Ma Saw Yin , (1921) 11 L. B. R. 43 : 23 Cr. L. J. 55 : 64 I. C. 839.

(t) Rambrose , (1928) 6 R. 578 : A. I. R. (1928) R. 257.

314

THE INDIAN PENAL CODE

[CHAP. X

Nagpur view Ss. 182 and 21 1 differ fundamentally as regards the ingredients
of the offence concerned besides the gravity of the offence under s. 211. S. 182
is primarily intended for a false information which does not ordinarily involve a
particular allegation or charge against a specified and definite person. S. 211
covers cases where there is a definite information or charge with reference to a
criminal offence against a particular person (u).

Procedure : — Non-coghizable—Summons— Bailable — Not compoundable —
Triable by Presidency Magistrate or Magi°trate of the first or second class.

Before prosecuting under this section the Magistrate should dispose of the
original complaint or information (v).

When the complaint is dismissed under s. 203, Cr. P. Code, without examining
the complainant, it is not permissible to the Magistrate to sanction prosecution
under s. 182 or s. 21 1, 1. P. C. (w).

Complainant should be given an opportunity of proving his case if the
charge is one under s. 211 before he can be hauled up under that section : —

A magistrate has no jurisdiction to order a prosecution for making a false complaint
till that complaint is dismissed (x). Before a person can be put on his trial for making
a fake charge under s. 21 1, he must be allowed an opportunity of proving the truth
‘ of the complaint made by him (y).

There is no provision in law that before a Magistrate can inquire into a
case under s. 182, the accused person must have an opportunity of proving his case (z).
This view cannot be accepted as it explains Shamlal's case (a). It would be observed
that Behanlis case (z) has not been followed in subsequent cases (b). When there is
a narazi petition by the complainant objecting to the police report that his case is
false, no process can be issued against him under this section before that petition
has been inquired into (c).

The same principle which governs s. 211 applies equally to a charge under
this section (c), but in Maguni Padharis case (d) it had been held that the Court is
not bound to call upon informant to show cause before issuing a summons where
the police makes a complaint under s. 211.

Complaint : — No Court shall take cognizance of any offence punishable under
Ss. 172 to 188, I. P. C., except on the complaint in writing of the public servant
concerned, or of some other public servant to whom he is subordinate (e).

Sanction — of the Magistrate is not necessary where the police lodges subse-
quent complaint against the reporter (f).

(u) Bhola V. Punjari , (1927) 23 N. L. R. 130 : 105 I. C. 454 : A. I. R. (1028) Nag.
17.

(v) Jamna (1883) 5 A. 587, followed in Thangappa Pallavarayan , (1928) M.W.N.
673, see Raghu Tiwari, (1893) 15 A. 330.

(w) In re. Ningappa Rayappa Ghotadki, (1924) 48 B. 300.

(x) Cali Mondal, (1905) 4 C.L.J. 88, following Gunamani Sapui, (1899) 3<C.W.N.
768; contra Raghu Tiwari , (1893) 15 A. 030.

(y) Karimdad, (1880) 0 C. 496 (497); Girishchandra , (1881) 7 C. 87; Giridhari
V. Uchit Jha, (1881) 8 C. 435; Sham Lai, (1887) 14 C. 707 (F. B.) ; Mahadeo Singh,
(1900) 47 C. 921 ; Jogendra Nath Mookerjee, (1901) 33 I. C.

(z) Baharali Biswas, (1930) 58 C. 1065 : 35 C. W. N. 378 ; Sobratin Sain, 8 P.
732 ;

(a) (1887) 14 C. 707 (F. B.).

(b) Shaikh Abdulla, (1931) 36 C.W.N 1210 and of Lachmi Shaw, (1931) 36 C.W.N.
160, followed in Charles Johns, (1932) 36 C. W. N. 794 ; and Sekendar AH Mia , 37
C.W.N. 399, where Babarali Biswas, (1920 ) 58 C. 1046, was dissented from.

(c) Munshi Isser , (1910) 14 C. W. N. 705; Raffi Raut, (1914) 10 W. N. 127.

fd) (1928) 7 P. 408. v

(e) S. 195 (ff(a) of the amended Code of Criminal Procedure of 1923.

(f) Prog Dat Tiwari, A. I. R. (1928) A. 705.

SEC. 182] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 315

For the purposes of s. I95(l)(a), Criminal Procedure Code, the Sub-Inspector
of Police of a district is subordinate to the District Magistrate in accordance with
s. 4 of the Police Act (g). A village magistrate is not subordinate to the authority
of a sub-magistrate as a public servant and the latter has no authority to grant sanction
for the prosecution of an offence under this section of a person who gave false
information to the former (h).

The same principle which governed * sanction* under the old Code equally
applies to * complaint * by the public servant as required by the amended code of
Criminal Procedure of 1923.

Burden of proof : — The onus is on the prosecution to prove that the circum-
stances were such that the only reasonable inference was that the accused must
have known or believed the information to be false (i).

The prosecution must prove not merely an absence of a reasonable and pro-
bable cause for giving the information but a positive knowledge or belief in the
falsity of the information (j).

Where M gave information to a police officer that certain persons stole his
property, subsequently he lodged a complaint before a magistrate on the same
allegation, the Allahabad High Court held that the bare fact that M had subsequently
made a complaint and dropped the proceedings was no bar to the police officer to
whom the false information had been given making a complaint of an offence under
this section (k).

For a conviction under this section it is not sufficient to find that the accused
has given information which he did not believe to be true but it is necessary that
it should be found positively that he knew or believed the information to be false.
The accused can only show upon what facts within his knowledge the information
given was founded, but he certainly is not bound to show that the information given
is true (1).

After compromise , proceedings cannot go on : — Where a complaint of theft brought
by a person against his brother was compromised and thereafter the complainant was
prosecuted under this section, the Allahabad High Court quashed the proceed-
ings (m).

Charge : — Where the charge might have been made against the accused
either under s. 182 or under s. 21 1 the Allahabad High Court held that it seems to
be contrary to public policy and to the recognised principles of the administration of
the criminal law that when a charge had been launched which requires sanction by
a particular authority and that authority has refused to sanction, to hold that it is
open to a complainant to alter his election, shift the ground and start a fresh charge
on alternative section which does not require sanction (n). Where the charge per-
versed the section by saying as follows : — “ which you knew or had reasons to
believe," held, it was an entirely damnable charge (o). Where the information

(g) Chotialal V. Cheddilal , (1922) 45 A. 135.

(h) Pallikudathan V, Samudi Goundav, (1923) 47 M. 229 : 45 M. L. J. 553 : (1923)

M. W. N. 745 : 25 Cr. L. J. 215 : 76 I. C. 647 : A. I. R. (1924) Mad. 387.

(i) Gaya Barhi, (1922) 9 O. L. J. 342 : 23 Cr. L. J. 641 69 I. C. 81 : A. I. R.

(1923) Oudh 4 ; GopalKahar, (1921) 22 Cr. L. J. 347 : 61 1. C. 171 .

(j) Brindaban, (1919) 6 O. L. J. 257 : 20 Cr. L. j. 701 : 53 I. C. 693.

(k) Mula, (1918) 17 A. L. J. 32 : 20 Cr. L. J. 114 : 49 I. C. 98.

(l) AH Ahmed , P. L. R. No. 2 of 1922 : 22 Cr. L. J. 503 : 62 I. C. 327 : A. I. R.
(1923) lata. 313;

(m) Chaitan Lai , (1918) 16 A. L. J. 734 ; 19 Cr. L. J. 730 : 36 I. C. 410.

(n) Khona Ram , (1922V 45 A. 11 : 20 A. L. J. 775 : 23 Cr. L. h 776 : 23 Cr. L. J.

296: A. I. R. (1922) All. 502.

(o) ' Chandra Kumar Dey , (1926) 44 C. L. j. 230.

316

THE INDIAN PENAL CODE

[ CHAP. X

related to two different persons, the accused could be charged with having made
only one false statement, and punished for one offence under this section (p).

Form of charge s — If necessary the charge should be drawn up as follows : —

I (name and office of Magistrate , etc.) hereby charge you (name of the accused)
as follows : —

That you on or about the day of- , at

, gave to a public servant, the following information namely

— intending thereby to cause (or knowing it to be likely that you would

thereby cause) such public servant to do (or omit to do) something to wit

which such public servant ought not to do (or omit) if the true state of facts were
known by him (or to use the lawful power of such public servant to the injury or

annoyance of ) and thereby committed an offence punishable under

s. 182 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Where the applicant was put upon his trial before a Magistrate of the second
class for having made a false report to the police, and the Magistrate being of opinion
that the evidence disclosed an offence under s. 2 1 1 which he was incompetent to try,
submitted that proceedings to the Sub-Divirional Officer under s. 349, Cr. P. Code,
*who framed a charge under s. 211, Penal Code, but after hearing the case,
came to the conclusion that he could not try the applicant on this charge for want
of previous sanction of the Court. He, therefore, reported to the Magistrate suggest-
ing that the case be referred to the High Court under s. 435, Cr. P. Code, with a
view that the whole proceedings be quashed, the Allahabad High Court held that
the proceedings should not be quashed, the facts did constitute an offence under
s. 182 (q).

* gives to a public servant any information ’ : — The word 4 charges * in
s. 211, means something different from 4 gives information.’ The words "falsely
charges * must be construed with reference to the institution of proceedings (r).
The Bombay High Court has held a contrary view in Bhikajts case. The Patna
High Court in Lachman Singh's case (t) has adopted the Bombay view in Bhikajts
case (s). The Rangoon High Court has held that 4 whoever gives’ in this section
should not be restricted to 4 whoever volunteers' (u). In Rayan Kuttis case (v)
the same view was held and it was further held that the facts that the information
, is shown to be false does not cast upon the party who is charged with an offence
under this section, the burden of showing that when he made it be believed it to be
true. The prosecution must make out that the circumstances were such that the
only reasonable inference was that he must have known or believed it to be false .

Where a person in whose house a theft took place informed the police that he
suspected two persons whom he named as the perpetrators of the crime and when
asked to shew cause before the Magistrate he stated that the complaint was based on
information which he believed to be true, the Calcutta High Court held that this
did not amount to giving a false information (w).

A statement made to an investigating police officer in answer to his questions v
is not giving information under this section. The expression 4 gives information * in

(P) Ponit Singh V. Madho Bhot , (1886) 13 C. 270.

(q) Bahshi, (1923) 46 A. 43 : 21 A. L. J. 806.

(r) Rayan Kutti, (1903) 26 M. 640 (643), followed in Abdul Hakim Khan Chou-
dhury, (1931) 69 C. 334.

(s) Hat. Unrep. Cr. case 124.

^t) (1928) 7 P. 716, following Biswanath, (1927) 9 P. L. T. 342 : A. I. R. (1928)

P ' 7 (u) Sultan V. Welbome, (1926) 4 R. 677 : A. I. R. (1926) R. 364.

(v) (1903) 26 M. 640 (644).

(w) Anartga Mohan Dutta , (1917) 22 C. W. N. 478 : 27 C. L. J. 230 : 19 Cr. L* J.
836 : 44 I. C. 362'.

SEC. 182] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 317

this section means * volunteers information * (x). An informant knowingly giving
false information to a public servant with the intention mentioned in this section
is punishable whether the information is volunteered or given in answer to questions
put to him (y).

The offence under this section is committed by a person giving false information
to a village magistrate charging a person with having committed an offence (z).

The Bombay High Court has held in a case where the applicant and the three
opponents resided in Surat and went to a village in the Baroda State and charged
the applicant with criminal breach of trust there, that the offence having been com-
mitted outside British India the Court at Surat had no jurisdiction to try the
offence (a).

Suspicion of persons as offenders does not amount to giving false in*
formation : — Where a person in whose house a theft took place informed the police
that he suspected two persons whom he named as the perpetrators of the crime,
held that this did not amount to giving false information (b).

* knows or believes to be false * There must be positive knowledge or
belief that the information is false befc re one can be convicted (c). To constitute
an offence under this section, the information given must be information which the
informer knew or believed to be false, and it must be proved that he gave it with
such knowledge (d).

Where a person falsely gave information to the police that a horse belonging
to him strayed when in fact he had sold it some time previously and did this with the
intention that a charge should be brought against the purchaser, the Allahabad
High Court held that an offence under this section was clearly made out (e).

1 intending thereby to cause or knowing it to be likely that he will
thereby cause such public servant to do or omit to do anything 9 etc.

Intention or knowledge is the gist of the offence (f).

Asking a public servant to do an act which would be an illegal act, on true facts
being stated to him would not come within the purview of this section (g). Where
the accused, a peon under the Court of Wards, had a quarrel with his brother and
made a petition to the Collector, but in the said petition he did not ask the Collect-
or to use his powers to the injury or annoyance of the person mentioned therein,
held that the accused could not be convicted under this section (h).

Where a false report was made to the police alleging the disappearance of a
bullock, held that the report not being a report of a cognizable offence and not in
itself calling for any action on the part of the police, was no offence (i).

* to do or omit anything which such public servant ought not to do or
omit * t — S. 182 (a) applies to a case in which it is intended that a public servant
should do or omit to do something which would be legally justified in doing or
omitting to do if he knew the true facts (j). Edge, C. J., pointed out in Budh Sens

(x) Mangu, (1914) P. L. R. No. 227 of 1914 : P. W. R. No. 35 of 1914 (Cr.) : 15
Cr. L. J. 650 :

(y) Panna Lai , (1920) 1 L. 410 : 21 Cr. L. J. 818 : 58 I. C. 818.

( z ) Jonnalagadda Vcnkataryudu, (1905) 28 M. 565.

(a) In te. Rambharath Hirabharthi, (1923) 47 B. 907 : 25 Bom. L. R. 772 : 25
Cr. L 1 33 : 77 I C. 189.

(b) ' Ananga Mohan Datta, (1917) 22 C. W. N. 478.

(c) HinganKhan, (1884) P. R. No. 32 of 18.

(d) Maulavi Abdul Latif , (1868) 9 W. R. (Cr.) 31.

(e) Incha Ram , (1924) 44 A. 647 : 24 Cr. L. J. 88 : 77 I. C. 216 : A. I. R. (1922)
All. 2 72.

Budh Sen, (1891) 13 A. 351.

Manohar , (1918) 16 A. L. J. 614 : 19 Cr. L. J. 895 : 47 I. C. 91.

Debi, (1918) 16 A. L. J. 105 : 19 Cr. L. J. 257 : 44 I. C. 146.

a

R)

(fa)

313

THE INDIAN PENAL CODE

[ CHAP. X

case (k) that the intention of the Legislature was that a public servant should not be
falsely given information with the intent that he should be misled by a person who
believed that information to be false and was intending to mislead him.

* to use the lawful powers of such public servant to the injury or
annoyance of any person : — The second part of this section did not appear in
the first draft of the Penal Code. Where false information is given to a public
servant and he is induced to do something to the injury of another person an offence
under this section is committed although the public servant had no legal authority
to do what he did and would not have been entitled to do it even if the information
were true (I). To constitute an offence under the latter part of the section, it is
not necessary to show that the act done would be to the injury or annoyance of any
third persons (m).

False statement in an affidavit : — Swearing to affidavits containing statement
subsequently found to be false, in support of application by a complainant for trans-
fer of the case and handing them to applicant’s pleader who afterwards filed them,
does not amount to an offence as the applicant could have asked the pleader not to
file them, even after they have been handed to him (n). It has been held in Maturis
case (o) that an accused person cannot be prosecuted under this section in respect
of statement made in his application for transfer.

An accused who makes a false statement in his petition of appeal cannot be held
to Save committed an offence under this section, even assuming that the false state-
ment was made with the object of inducing, and then it did induce, the Appellate
Court to send for the record of the case, as it cannot be said that the Court
was thereby induced to do what it ought not to have done (p).

183. Whoever offers any resistance to the taking of any

Resistance to taking Property by the lawful authority of any
of property by lawful public servant, knowing or having reason to

vani 0nty,,hl pul)lKslT " believe that he is such public servant, shall
be punished with imprisonment of either
description for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both.

Procedure : — Non-cognizable — Su mmons -Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Ss* 183 and 353 : — The Appellate Court can under s. 423, Cr. P. Code, alter a
conviction from one under s. 353, I. P. C,, to one under s. 183 (q).

Resistance to the taking of property by public servant " In construing
s. 183, the language of s. 99 as well as that of other section, concerning resistance to
the.acts of public servants must be borne in mind. S. 99 declares that the protec-
tion afforded by the Penal Code to public servants acting in good faith under colour
of their office is not lost to them, by reason of any mistake on their part in the

(i) Algo Lai, (J 920) 18 A. L. J. 636 : 21 Cr. L. J. 670 : 67 I. C. 96.

(j) Manohar, (1618) 16 A. L. J. 614 : 19 Cr. L. J. 895 : 47 I. C. 91.

(k) (1891) 13 A. 351 (355, 356).

(l) Sant Ram V. Diwan Chand, (1924) P. L. R. No. 7 of 1924.

(m) Public Prosecutor V.Katta Prakasam, (1924) 47 M. L. J. 658 : (1025) M. W. N.
146 : 20 L. W 624 : A. I. R. (1925) Mad. 123 ; Matan, (1910) 33 A. 163.

(n) Gnnesh Khanderao, (1880) 13 B. 506.

(oj (1910) 33 A. 163, dissented from in Ghulam Muhamnted, 3 L. 46.

(p) Amir Ali V. Dukha Mamin , (1928) 29 Cr. L. J. 013 : 109 I. C. 805 : A. T. R.

(1928) P. 574. *

(q) Kunhamba, (1912) M. W N. 1110 ; 14 Cr. L. J. 239 : 19 I. C. 336.

SEC. 183] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 319

exercise of their proper functions. A public servant may do an act of a kind which
he has no authority to do. In such case, he could not be acting in the discharge of
his public functions (Ss. 186 and 353) and the lawful authority required by s. 183
would be clearly wanting. Whether or not the public servant in the case supposed
could if charged with any offence shelter himself under the exceptions enacted in
Ss. 78 and 79 of the Code, would depend upon the circumstances ” (r). In this
case a decree having been passed against the assets of a deceased debtor, execution
was taken out and the Amin of the Court attempted to attach and seize a brass plate
when the accused successfully resisted the seizure stating that it belonged to him and
not to the deceased. The Madras High Court held that the accused who resisted
the officer committed an offence under this section and set aside the order of
acquittal (s).

A mere oral statement by a person claiming to be the owner of certain articles
attached by the bailiff in execution of a decree to the effect that he would not allow
the bailiff to take away the articles unless he entered them as his property does not
amount to an offence under this section (t).

It is the intention of the law that when a public servant attaches property under
a warrant in execution of a decree, he must have the warrant with him, otherwise
the taking of the property is not lawful (u). In order to support a conviction for
resistance to a public servant in the discharge of his duty the warrant must be a
lawful one and the person executing the same must have lawful authority (v).

Where a warrant for attachment of the applicant’s property was signed by
the Peshkar of an Assistant Collector and the applicant removed the property before
it was actually attached, held that the Peshkar not being an officer authorised to sign
such warrant under Or. 21 ., R. 24, Civil Procedure Code, the property could not be
attached and the accused did not commit an offence under this section (w).

Where a person was convicted under this section for offering resistance to
the attachment of property by a public servant but the offence committed was on the
4th of February, 1883, the warrant under which the public servant acted was re-
turnable on or before the 3rd February, held , the conviction was bad (x).

Where a village Chaukidar, without the preparation and publication of a list
of defaulters and without any written authority as is required under Ss. 26 and 27
of the Village Chaukidari Act, attached some property for levying amount of arrears,
held that resistance to such attachment was not an offence under this section (y).

The removal of moveable property by the Civil Court peon, without giving
any option to the judgment-debtor to provide safe custody for the property is illegal.
Hence the subsequent taking back of the said property does not constitute any
offence under Ss. 183 and 147, and s. 99 does not operate as a bar to the exercise of
the right of private defence of the property (y 1 ).

Lawful authority This phrase does not mean that the cases in which the
person charged may have a civil action against the public officer must be excluded
from the operation of this section (z). t

(r) Per Shepherd, J., in Tiruchittambala Pathan, (1896) 21 M. 78 (79).

(s) Ibid.

(t) Hussain, (1890) 15 B. 564.

(u) Ganeshilal, (1904) 27 A. 258.

(v) Mohini Mohan Barter ji, (1916) 1 P. L. J. 550 : 3 Pat. L. W. 64 : 18 Cr. L. J.
39: 36 I. C. 871.

(w) Karamatullah , (1921) 18 A. L. J. 284 : 21 Ci. L. J. 372 : 55 I. C. 852, sec
Harish Chandra Choudhury V. Girish Chandra Sarkar , (1923) 27 C. W. N. 1042 ; 37
C. L. J. 331.

(x) Anand Lai Bera, (1883) 10 C. 18 ; Rama Gandan , (1891) 1 Weir 134.

(y) Durga Charan Mali V. Nabin Chandra Sil, (1897) 25 C. 274.

(yl) Ahmed Sheikh, (1938) 56 C. 460 : 48 C. L. J. 2S8 : 33 C, W. N. 174.

( 2 ) Tiruchittambala Pathan , (1896) 21 M. 78 (80).

320

THE INDIAN PENAL CODE

[CHAP. X

184 . Whoever intentionally obstructs any sale of property

obstructing s„c „t offered for sale by the lawful authority of nny
property offered tor public servant, as such, shall be punished
sal Ki * by - . au * horily ot with imprisonment of either description for
pu ic bet van a j erm ma y extend to one month, or

with fine which may extend to five hundred rupees, or with both.

Public servant — s. 21.

This section punishes intentional obstruction of the sale of any property
offered for sale by the lawful authority of a public servant.

Procedure t— Non-cognizable — Summons — Bailable—Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Complaint— in writing of the public servant concerned, or of some other
public servant to whom he is subordinate is necessary (z 1 )*

* obstructs * : — Where during the sale of some nazul land by an Assistant
Commissioner the accused posted up placards asserting title to the land and warning
bidders not to go in for it, held that as the obstruction must be physical, the accused
could not be convicted under this section (z ).

The law laid down in Chapter IX of the Agra Tenancy Act does not provide
for an adjournment of sale of distrained property owing to absence of bidders.
Where an amin adjourned such a sale and obstruction was offered, held that the
accused could not be convicted under this section (a).

185 . Whoever, at any sale of property held by the lawful
authority of a public servant, as such, pur-
bid ,lcga for rurc, 'rox'r"v c ^ ases or bids for any property on account of
offered for bale by autho- any person, whether himself or any other,
rity of public servant. whom he knows to be under a legal incapacity
to purchase that property at that sale, or bids
for such property not intending to perform the obligations under
which he lays himself by such bidding, shall be punished with
imprisonment of either description for a term which may extend to
one month, or with fine which may extend to two hundred rupees,
or with both.

A person who bid at an auction of the right to sell drugs under a false name,
and when the sale was confirmed in his favour denied that he had ever made any
bids at all, was rightly convicted of an offence under this section. Held that
the language of the section is very wide. The right to sell drugs is a monopoly
granted for a certain area and comes within the definition of property (b).

A person is guilty of contempt under this section by bidding for the lease of a
ferry sold at a public auction by the Magistrate and failing to complete the sale (c).

Procedure Non-cognizable—- Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

(zl) S. 195. Cr. P. Code.

(z2) Gopal Rai, (1894) 2 Cr. L. J. 44.

(a) Tara Singh, (1905) 27 A. 480.

(b) Bishan Prasad, (1914) 37 A. 128 : 13 A. L. J. 109 : 16 Cr. L. J. 54 : 26, t C.
646, following Reazoodeen (1865) 3 W. R. (Cr.) 33.

(c) Reazoodeen, (1865) 3 W. R. (Cr.) 33.

SEC. 186} OF CONTEMPTS OF LAWFUL AUTHORITY OF PUBLIC SERVANTS 321

Complaint— -in writing by the public servant concerned or by some other
public servant to whom he is subordinate is necessary (d).

186 . Whoever voluntarily obstructs any public servant in the
obstructing public discharge of his public functions, shall be
servant in discharge punished with imprisonment ot either des-
of public functions. cription for a term which may extend to three
months, or with fine which may extend to five hundred rupees,
or with both.

Voluntarily— s. 39. Public servant—*. 2 1 .

This section punishes voluntary obstruction of a public servant in the dis-
charge of his public functions.

Scope : — There must be some actual resistance or obstacle put in the way of
the public servant to constitute the offence (e).

Before an offence under this section can be said to be established against any
person, it is requisite, as the section itself recites, to prove that the public servant
was obstructed in the discharge of his public functions ; and that is a matter of fact,
not a matter of the public servants* intentions. His intentions may have been
perfectly honest, but if, in fact and in law the functions, in the discharge of which
he was obstructed, were not public functions then no offence can be committed
under this section. It is plain that the functions would not be public functions if
they fall wholiy outside the jurisdiction or authority which he as a public officer
possessed (f).

Procedure : — Non-cognizable — Summons— Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Complaint— in writing by the public servant concerned or by some other
public servant to whom he is subordinate is necessary (g).

Where the report of the peon on which the proceedings under this section was
started was merely a report of what took place but contained no express or implied
request to the magistrate to take action, held , the report was not a complaint, and as
there was no sanction by the public officer concerned, the prosecution was bad (h).

Jurisdiction : — Where the process-server of the Munsiff s Court at Ranaghat
was resisted and beaten by the petitioner judgment-debtor and other petitioners in
executing a process for attachment of moveables in execution cape and the judgment-
debtor was described in the execution case as a resident of K within the jurisdiction
of the Munsif of Ranaghat, but the attachment process mentioned the present resi-
dence at J. within the jurisdiction of the Court of 24-Parganas, held that the defect
in the warrant was fatal ; J not being within the jurisdiction of the Munsif at Rana-
ghat, the conviction under this section was set aside (i).

Voluntarily obstructing public servants in the discharge of his public
functions r— Mere failure to comply with the request of a Commissioner does not
amount to such obstruction as is contemplated in this section. The use of the
word ‘ voluntarily * seems to indicate that the Legislature contemplated the

(&l S. 195, Or. P. Code.

(e) Ah Choung, (1931) 9 R. 601. A

(f) Shivdas Onkar Marwari, (1912) 15 Bom. L. R. 315: 14 Cr. L. J. -51:19
I. C. 507 ; see Baroda Kanta Pramanih , (1896) 1 C. W. N. 74.

(g) S. 195, Cr. P. Code. ^

(h) Ahmed Hussain, (1913) 17 0. W. N. 980 : 14 Cr. L. J. 462: 20 J, C. 0—

(i) Sarbeswarnath Nalh, (1922) 39 C. L. J. 33.

27

322 - THE INDIAN PENAL CODE * [ CHAP. X

commission of some overt act of obstruction, and did not intend to render penal
mere passive conduct (j).

Escaping from lawful custody is not obstructing a public servant in the dis-
charge of his public functions, within the meaning of this section (k).

Obstruction — means physical obstruction and mere threats or threatening
language would seem to be insufficient (1). Mere abuse does not amount to an
obstruction within the meaning of this section (m).

Physical obstruction to an agent acting under the direction of a public servant
present at the time is an offence under this section (n).

A mere oral statement by the person appearing to be the owner of property,
attached by the bailiff in execution of the decree, to the effect that he would not
allow the bailiff to take it away unless be entered the same as his property does not
amount to 4 obstruction 4 (o).

Where a surveyor proceeded to measure a land and the accused resisted him on
the ground that neither he nor the Collector had authority to make a partition of
the land, held that the surveyor was not discharging a public function and the
act of the accused was not an offence under this section (p).

The Bombay High Court has held that the section does not cover the case of a
public servant who instead of acting in the discharge of his public functions

(q)

The Calcutta (r), Allahabad (s) and Lahore (t) view is that the words
‘ public functions * in this section mean legitimately authorised public functions.
The Allahabad High Court in the case of Janki Prosad (u) and the Madras
High Court in Poomali U day an (v) has held that the act of the person
obstructing would amount to an offence when done by a public servant acting
in good faith under colour of his office, though that act may not be strictly

justified by law.

Restitution of conjugal rights s— 1 Where on an application for execution of a
decree for restitution of conjugal rights a Warrant was issued directing the execute
ing peon to seize the wife and deliver her bodily to her husband failing which to
bring her tinder arrest before the executing court, the peon seized the woman in
execution qfthe warrant but was resi$t^d:atid the woman was snatched away, held
that the the execution, w and as such the conviction of the

petitioners section w^fi^ ashfe (^. But the Calcutta High Court in

(j) Sommanna, (1892) 15 M. 221 Maine, (1888)Rat. Unrep. Cr. C. 407 and
Qavanppu; (1900) 2 Bom. L. R. 541

(kj, Poshubin Dhamhaji Petit t (1865) 2 Bom. H. C. R. (Cr. C.) 128.

(1) Gdjrthar, (1910) 7 A. L. J. 1174 : 11 Cr. L. J. 721 and Aijai Hussain, (1918)
38 A. 506 : 14 A. L. J. 731, followed in Mi, Darken; A. I. R. (1928) L. 827.

(in) Sooraperzn, (1894) 1 Weir 64. V

(n) Bhaga Mana, (1927) 54 B. 286 : 30 Bom. L. R. 364 : A I R. (1928) B. 135,
followed in Limbu; (1929) 31 Bom. L. R. 800.

(o) Husain , (1890) 16 B. 564.

(p) Tulsiram , (1888) 13 B. 168.

(q) Kaderbhai, (1927) 51 B. 896 : 29 Bom. L. R. 987, following Shivddas Vnkar,
(1912) 15 Bom. L. R. 315 and Tulshiram , (1885) 15 B. 168.

(r) Ananda Lai Beta, (1883) 10 C. 18 ; Lille Singh , (1894) 22 C. 286. following

Tulshiram , (1888) 13 B. 168, see Abinash Chandra Aditya V. Ananda Chandra Pal,
(1904) 31 C. 424. > 5 ^

(s) Ramdayal V. Mahatab, (188 5) 7 A. 506 (P. C.). \ : \v / *£'

(t) Himayet AH, P. R. No. 10 of 1905 ; Matu Ram, (1944) 24 Cr. L. Jk 594.

(u) (1880) 8 A. 293. -

(v) (1898) 21 M. 296.

(w) Gahar Mahammad Sarkar V. Pitambar Das, (1918) 22 C, W. N. 814 : 19
Cr. L. J. 988 : 47 I. C. 888,

SEC. 186] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUB. SERVANTS 323

another case of execution of a warrant in a decree for restitution of conjugal rights
held that the wife was not entitled to a notice before the warrant wa*issued and
that obstruction was an offence under this section where the suit was a contested one
and the lady had opportunity to obey the decree (x).

Resistance to process or warrants The resistance of a process of a civil
Court is an offence, as by this section it is an offence to obstruct any public servant (y).
It is improper to depute the Naib Nazir when the warrant was addressed ‘ to the
Nazir Khud # for executing a warrant, but resistance to the Naib Nazir is an offence
under this section (z). Where the warrant signed by the Sheristadar did not show
on the face of it that the Sheristadar signed in the exercise of the authority delegated
to him by the Judge, held that the warrant being defective, resistance to its execu-
tion is no offence under this section (a). This case was distinguished^ in a later
case where on the face of the warrant it appeared that the Sheristadar signed by
order * and it was held that the presumption under s. 14 (e) of the Evidence Act
was that he was actually the officer appointed by the Court to sign processes as
required by Cl. (2) of R. 24, Or. 21, C. P. C., and, as such, resistance to the
execution of the warrant is an offence (b).

Where P was assessed to pay income-tax for the realisation of which a certi-
ficate was issued and a peon attached one bullock of the petitioner and left it in
custody of a surety who denied that he had received charge of the bullock or stood
surety, held that the peon was acting within the directions given and the conviction
of the petitioner under s. 186 was maintained (c).

It was held as long ago as 1865 by a Full Bench of the Bombay High Court
in Peshubin Dhambaji Patil (d) that escape from lawful custody does not amount to
obstruction of a public servant in the discharge of his duties nor can it be said that
the further act of the petitioner in running away, shutting himself up in a room and
refusing to come out, is a ‘ voluntary obstruction * (e).

Where the accused who were no parties to a suit in which a public right of way
was claimed did not allow a Munsif, in whose Court the suit was pending to pass in
a boat in a ditch which was their private property when the Munsif wanted to pass
through it for the purpose of a local investigation, held that the accused did not
commit an offence under this section (f).

Where the accused a memberpfV panchayat was asked by the Sub-

divisional Officer to sit with a member of depressed classes > and Refused to do so
and instigated his fellow panchas not to- s||' W^h the member of die depressed class,
held that the conduct of the accused did not amount to voluntary obstruction within
the meaning of this section (g). h-:;-, ..

The refusal of a patwari to allow the Kanangoe to go through his and
to check them is only an act of insubordination and is not a criminal act (h). The

~ (*) Abdul Wdzed t (1918) 19 Cr. L. J. 970 : 47 I. C. 876 (Cal.), following Durga
Das Nandi V. Dewraj Agarwalla, 33 C. 306 : 10 C. W. N. 297 : 3 C. L. J. 112.

(y) B hagai Dafader. (1868) 2 B. L. R. (F. B.) 21 : 10 W. R. 43, overruling Chunder
Kant Chakrabarty, (1808) 8 W. R. (Cr.) 63.

(z) ' Daman Mahlo, 21 Cr. L. J. 193 : 64 I. C. 977 (Pat.).

(a) Deputy Legal Remembrancer V. Mir Sarwar Jan, (1902) 6 C. W, N. 846.

(b) If arise Chandra Chaudhury V. Girish Chandra Sarkar, (1923) 27 C. W. N.
1042m 37C. L, J,S31.

(c) Pichit Lai Misser, (1929) 9 P. 344.

Jd) (1866) 2 Bom. H. C. R. 134 (F. B.).

(e) Jamna Das, (1927) 9 L. 214 (216).

If) Nishihanta Pal, (1910) 40 C. W. N. 867 : 18 Cr. L. J. 62 : 37 I. C. 46.

(g) Ram Ghulam Singh, (1925) 23 A. L. J. 362 ; A, I. R. (1926) 401, following
Sonimanna (1892) 16 M. 221,

(b) Kishori Lai, (1924) A. I. R. (1925) A. 409.

324

THE INDIAN PENAL CODE

[CHAP. X

refusal of a cart owner to give His cart on hire to Government is not an obstruction
within the * meaning of this section (i). The mere refusal by the accused to
hand over to the bailiff the money which was alleged to be in his pocket is not a
resistance to the taking of money under s. 183 (j).

Any persuasion addressed to tenants not to pay rent to a Receiver was not
an obstruction within the provisions of this section (k).

Where a person not only refuses to give up the property but threatens to do
hann to the constable if he should venture to carry out the warrant, held that threat
was an overt act sufficient in law to constitute ‘ voluntary obstruction ’ within the
meaning of this section (I).

Public servant— see commentary under s. 21. A person nominated by a
Collector under $. 69 of the Bengal Tenancy Act for the purpose of making a division
of crops between the landlord and the tenant is a public servant within the meaning
of the Code (m). A Local Board Sircar is not a public servant within the meaning of
s. 21, cl. (10), and where the owners of the bed of a khal objected to the said Sircar
laying pipes on the ground that they would obstruct the flow of water, held , the
conviction under s. 143 and s. 186 was bad (n). Obstruction to a Sanitary Inspect-
or acting under the Food Adulteration Act is an offence punishable under this
section (o).

If the agent is obstructed in doing what he is legitimately required to do by a
public servant actually present at the time of removal, then there is an obstruction
offered to the public servant himself, because what he is doing by the hand of that
agent is really, in the eyes of the law, something he is actually doing himself (p).

This section does not cover the case of a public servant who is acting wholly
outside his jurisdiction or authority (q).

In the discharge of his public functions s — ’ Where the Sub-Inspect-
or was not strictly justified in searching a house without a warrant the persons
obstructing and resisting could not set up the illegality of the officer’s proceeding as
a justification of their obstruction (r). Where the public servant was acting in
good faith under colour of his office, the accused who defaulted in paying income-tax
and resisted the distraint, it was held that the accused committed an offence under
this section and s. 353 (s).

Where the warrant of arrest in the execution of which the constable is said to
have been obstructed was not signed by the Magistrate as required by s. 75 of the
Code of Criminal Procedure but only bore his initials and the substance was not
notified, the accused could not be convicted under this section (t).

Where the accused had obstructed a government surveyor from measuring
certain lands and removed the demarcation stones, the Madras High Court held
that the accused were guilty of an offence under this section and set aside the
order of acquittal, though it might be proved that the lands in which the surveyor

(i) Dhoti Kullan, (1872) 9 Bom. H. C. R. 165.

(j) Alibhai, (1888) Rat. Unrep. Cr. C. 412.

(k) Ebrahim Sarcar, (1901) 29 C. 236.

(l) Pandlick Krishna Rat, (1904) 6 Bom. L. R. 254. where the case oi Alibhai,
(1888) Rat. Unrep. Cr. C. 412 was distinguished ; Birbal Khalifa , (1902) 30 C. 97.

(m) Chatter Lai V. Thacoor Pershad, (1891) 18 C. 618.

(n) Addaita Bhuiya V. Kali Das, (1907) 12 C. \V. N. 96.

(o) Shailesh Chandra Lahiry V. Nehal Chattd Marwari , 36 C. W. N.

(p) Bhaga Mana , (1927) 52 B. 286: 30 Bom. L. R. 364.

(q) Kaderbhai, (1927) 51 B. 896 : 19 Bom. L. R. 987.

(r) PakotKotou , (1896) 19 M. ?49.

(s) Poimali Udayan, (1898) 21 M. 296.

(t) Abdul Gajur , (1896) 23 C. 896, see also Janki Prosad, (1886) 8 A. 293, which
is a case under s' 353, infra.

SEC. 186] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUBLIC SERVANTS 825

carried on his operations were not actually included in the notification but the facta
found were that the public servant in good faith believed that he had authority (u).

The Patna High Court has held that it is no offence to resist the execution of a
bad warrant— an warrant which did not bear a date on or before which it should be
executed (v).

Where a civil Court peon, in execution of an unsealed writ of attachment,
attached a bullock and calf belonging to the judgment-debtor, the latter being
absent at the time, and the judgment-debtor subsequently followed and obstructed
the peon and other and rescued the cattle, held , the petitioners should not have been
convicted under this section (w). It was held that the accused was not justified in
obstructing the revenue peon in making the attachment where it was found that the
introduction of the survey settlement was valid although certain formalities which
were required by a Government resolution were not observed and it was held
that the conviction of the accused under this section was proper (x).

Where a warrant was taken out by an amin it was open to the petitioner who
was not a party to the decree to obstruct him and he being in possession of the pro-
perty the Madras High Court held that the petitioner committed no offence under
this section (y). Where a constable was sent to some persons from whom a police
inspector wanted to make some enquiries and the persons refused to accompany
the constable, held that the accused could not be convicted under this
section (z).

Although a police constable may not be bound, in the execution of his duty
as a police officer, to assist the occupier of a house in putting out an intruder, yet
he may lawfully do so, and if he sustains violence, the party inflicting such violence,
though he may not be indictable for assaulting a police constable in the execution of
his duty, will be liable to a conviction for an assault (a). This case was followed
by the Allahabad High Court where it was held that the words ‘ in the discharge
of his duty * can have only one meaning, that is, that the officer has a duty to dis-
charge and is discharging it at the particular time. They cannot mean that the
officer is under colour of his office (b).

Before a person can be convicted under this section of voluntarily obstructing
a public servant in the discharge of his public functions within the meaning of the
last named provision, it must be shown that the obstruction or resistance was offered
to a public servant in the discharge of his functions as authorised by Jaw. The
mere fact of a public servant believing that he was acting in the discharge of his
duties will not be sufficient to make resistance an offence (c).

(u) Public Prosecutor V. Madhava Bhunjo Santos, (1916) 31 M. L. J. 305 where
Pukot Kotou, (1896) 19 M. 349, Trichuittambala Pattar, (1898) 21 M. 296, Lilia Singh,
(1894) 22 C. 286 and Abdul Gafttr, (1896) 23 C. 896 were referred to ; Limba Tattya,
Kasid , (1929) 51 Bom. L. R. 800.

(v) Mohini Mohan Banerji , (1916) 1 Pat. L. J. 550: 3 Pat. L. W. 64 : 18
Cr. L. J. 39: 36 I. C. 871, following Nasur, (1909) 37 C. 122 : 14 C. W. N. 282 : 11
Cr. L. J. 128: 5 I. C. 409.

(w) Badri Gope , (1925) 5 P. 216 : 7 P. L. T. 301 : 27 Cr. L. J. 418 : 93 I. C.
146 : A. I. R. (1926) P. 237.

(x) Moreswarjotiardon (1928) 30 Bom. L. R 1255.

(y) Muragappa Naicker , (1924) 48 M. L. J. 97: 21 L. W. 82.

(z) Puroshotum Vanutnali , (1896) Rat. Unrep. Cr. C. 850; Raman Singh , (1900)
48 C. 211 (case under s. 353).

(a) Roxborough, (1891) 14 Con. C. C. 8.

(b) Dalip , (1896) 18 A 246, leading case (case under s. 332), followed in Muhtar
Ahmad , (1915) 37 A. 363, see also Madhu, , (1918) 40 A. 28,

(c) BarodaKanta Pramanik , (1896) 1 C. W. N. 74 y

326

[CHAP. X

THE INDIAN PENAL CODE

187 . Whoever, being bound by law to render or furnish
MsUtonce to any public servant in the cmcu-
public servant when tion or his public duty, intentionally omits to
bound by law to give gj ve g^i, assistance, shall be punished with
simple imprisonment tor a term which may
extend to one month, or with fine which may extend to two hundred
rupees, or with both ;

and if such assistance be demanded of him by a public servant
legally competent to make such demand for the purposes of execut-
ing any process lawfully issued by a Court of Justice, or of prevent-
ing the commission of an offence, or of suppressing a riot, or
affray, or of apprehending a person charged with or guilty of an
offence, or of having escaped from lawful custody, shall be punished
with simple imprisonment for a term which may extend to six
months, or with fine which may extend to five hundred rupees, or
with both.

Public servant — s. 21. Court of Justice — s. 20. Riot — s. 146.

Affray — s. 159.

This section punishes intentional omission to assist a public servant in the
execution of his duty when a person of whom the assistance is sought is legally
bound to give assistance.

Scope : — This section provides, first, in general terms, for the punishment when
a person being bound by law to render assistance to a public servant in the execution
of his public duty intentionally omits to assist, secondly, it provides for the punish-
ment when the assistance is demanded for certain specified purposes (d).

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Complaint — in writing of the public servant concerned or by some other
public servant to whom he is subordinate is necessary (e).

Omission to assist a public servant : — The word 4 assistance * referred to
in the former part of the section is ejusdem generis with the various forms of assist-
ance specified in the latter half. The ‘assistance’ must have some direct personal
relation to the execution of the duty by the public officer. The signing of the search
list required by s. 103 of the Criminal Procedure Code is an independent duty
imposed on the witness. The word 'assistance* as used in the section implies that
the party who assists is doing something which in ordinary circumstances, the party
assisted could do for himself (e 1 )* This Full Bench decision (e) was distinguished
in a later case where it was held that the refusal of the accused to assist a Sub~ In-
spector of Police in a search held under s. 103, Criminal Procedure Code, is punish-
able under this section (f). This section applies to direct refusal or omission of a
person bound by law to tender to furnish assistance to a public servant to do so.
The neglect by a landholder to nominate a watchman does not come within the
purview of the section (g). Where the assistance of the applicants had not been

(d) Ramaya Naika, (1903) 20 M. 416 (F. B).

(e) Ramaya Naika, (1903) 26 M. 410 (F. B.) at p. 421.

(el) S. 196, Cr. P. Code.

(f) Ippili Magatha , (1919) 38 M. L. J, 27 : (1920) M . W. N. 110 : 21 Cr. L. J. 33 :
2 I. C. 241.

(g) Kali Prasanna Ghost , (1881) 7 C. L. R 676.

SEC. 188] OF contempts of lawful authority of pub. servants 327

invited to assist the police-officer in the taking of any persons within the meaning
of s. 42, Cr. P. Code, held that the persons in question could not be rightly
convicted under this section (h). * *

Where a person was convicted under this section for refusing when called up-
on by a Forest-guard to serve as one of a Punch for the purpose of drawing up a
panchnama with reference to certain wood alleged to have been illegally cut in a
reserved forest, held that the conviction was illegal (i).

Where a Magistrate directed a landlord 4 to find a clue' in a case of theft * within
fifteen days and to give sufficient assistance to the police * held, that such order was
not authorised by Ss. 90 and 91 of Act X of 1872 and the conviction of the land-
holder under Ss. 187 and 188 was not maintainable (j). It may be noted however
that a person who refuses to answer when examined under s. 161, Cr. P. Code,
cannot be said to commit an offence either under s. 1 76 or under this section (k).

188 . Whoever, knowing that, by an order promulgated by a
Disobedience to order public servant lawfully empowered to pro-
duiy promulgated by mulgate such order, he is directed to abstain
pu ic servant. from a certain act, or to take certain order

with certain property in his possession or under his management,
disobeys such direction,

shall, if such disobedience causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or injury, to
any person lawfully employed, be punished with simple imprison-
ment for a term which may extend to one month, or with fine which
may extend to two hundred rupees, or with both ;

and if such disobedience causes or tends to cause danger to
human life, health or safety, or causes or tends to cause a riot or
affray, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.

Explanation. — It is not necessary that the offender should
intend to produce harm, or contemplate his disobedience as likely
to produce harm. It is sufficient that he knows of the order which
he disobeys, and that his disobedience, produces, or is likely to
produce, harm.

Illustration.

An order is promulgated by a public servant lawfully empowered to promulgate
such order, directing that a religious procession shall not pass down a certain street.
A knowingly disobeys the order, and thereby causes danger of riot. A has committed
the offence defined in this section.

Public servant — s. 21. Act — s. 33.

This section was explained by the Authors of the Code as follows : — “ We have,
to the best of our ability, framed laws against acts which ought to be repressed at
all times and places, or at times and places which it is in our power to define. But
there are acts which at one time and place are perfectly innocent, and which at

(h) JotiProsad, (1920) 42 A. 3U : 18 A. L. J. 169 : 21 Cr. L. J. 801.

(i) Babaji, (1897) 22 B. 770.

S Bahshi Ram , (1880) 3 A. 201.

) Sankaralinger Kone , (1900) 23 H* 544 (646).

328

THE INDIAN PENAL CODE

[ CHAP. X

another time or place are proper subjects of punishment ; nor is it always possible
for the legislator to say at what time or at what place such acts ought to be
punishable.

“ Thus it may happen that a religious procession which is in itself perfectly
legal, and which, while it passes through many quarters of a town, is perfectly harm-
less, cannot without great risk of tumult and outrage be suffered to turn down a
particular street inhabited by persons who held the ceremony in abhorrence, and
whose passions are excited by being forced to witness it. Again, there are many
Hindoo rites which in Hindoo temples and religious assemblies the law tolerates,
but which could not with propriety be exhibited in a place which English gentle-
men and ladies were in the habit of frequenting for purposes of exercise. Again,
at a particular season hydrophobia may be common among the dogs at a particular
place, and it may be highly advisable that all people at that place should keep their
dogs strictly confined. Again, there may be a particular place in a town which the
people are in the habit of using as a receptacle for filth. In general this practice
may do no harm, but an unhealthy season may arrive, when it may be dangerous
to the health of the population, and under such circumstances it is evidently desirable
that no person should be allowed to add to the nuisance

“ What we propose, therefore, is to empower the local authorities to forbid acts
which these authorities consider as dangerous to the public tranquillity, health,
safety or convenience, and to make it an offence in a person to do anything which that
person knows to be so forbidden, and which may endanger the public tranquillity,
health, safety or convenience. It will be observed that we do not give the local
authorities the power of arbitrarily making anything an offence ; for unless the Court
before which the person who disobeys the order is tried shall be of opinion that
he has done something tending to endanger the public tranquillity, health, safety
or convenience, he will be liable to no punishment. The effect of the order of the
local authority will be merely to deprive the person who knowingly disobeys the
order on the plea that he had no bad intentions. He will not be permitted to allege
that if he has caused harm, or risk of harm, it was without his knowledge

We see some objections to the way in which we have framed this part of the
law ; but we are unable to frame it better. On the one hand, it is, as we have shown,
absolutely necessary to have some local rules which shall not require the sanction
of the legislature. On the other hand, we are sensible that there is the greatest
reason to apprehend much petty tyranny and vexation from such rules ; and this
although the framers of those rules may be very excellent and able men. There is
scarcely any disposition in a ruler more prejudicial to the happiness of the people
than a meddling disposition. Yet, experience shows us that it is a disposition which
is often found in company with the best intentions with great activity and energy,
and with a sincere regard for the interest of the community. A public servant of
more than ordinary zeal and industry, unless he has very much more than an ordi-
nary judgment, is the very man who is likely to harass the people under his care with
needless restrictions. We have, therefore, thought it necessary to provide that
no person shall be punished merely for disobeying a legal order, unless it be made
to appear that the disobedience has been attended with evil or risk of evil. Thus
no person will be punished for disobeying an idle and vexatious order ” (1).

Scope : To sustain a conviction under this section, there must be evidence
that the accused had knowledge of the order with the disobedience of which he is
charged. Mere proof of a general notification promulgating the order does not
satisfy the requirements of the section (m).

0) NoteF.

(m) Ganesh Vasudev Mavlangkar, (1930) 55 B. 322 : 33 Bom. L. R. 01 (07).

SEC. 188 ] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUBLIC SERVANTS 829

Where a police Sub-Inspector suspected that certain logs which were lying
on trucks at a railway station were stolen property issued an order to the station
master to detain the same but did not seize them under s. 550, Criminal Procedure
Code, held that the station master could not be convicted under this section (n).

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

The prosecution must prove clearly that the accused had knowledge of the
order the disobedience of which he is charged with (o).

Where the order under s. 144, Criminal Procedure Code, which was the founda-
tion of proceedings under this section expired and accordingly was bad the pro-
ceedings under this section were quashed (p).

A Magistrate should not under s. 476, Cr. P. Code, sanction a prosecution under
this section unless he thinks that all the elements necessary for a prosecution for
conviction are present (q).

Cognizance :-~No Magistrate is competent to take cognizance of a case under
this section except in accordance with the provisions of s. 195, Criminal Procedure
Code, and the Magistrate whose own order was disobeyed was not competent under
s. 487, Criminal Procedure Code, to try the case (r). Want of complaint under
s. 195, Cr. P. Code, is an illegality and not an irregularity which can be cured (s).
In spite of s. II of Ordinance V of 1930 and the Bengal Government Notification
thereunder, making an offence under s. 188, I. P. C., cognizable and non-bailable.
No Court can take cognizance of the offence without a complaint in writing of the
public servant whose order has been disobeyed or of some superior officer of
his (t).

Summary trial : — Where persons were found at a railway station at Bindha-
chal soliciting pilgrims and were convicted in a summary trial under this section
for having disobeyed an order of the E. I. Ry. Company forbidding Pandahs to go
on the railway station except for bona fide purposes of travelling, held that the
prosecution failed to prove the ingredient of the offence, and the conviction was set
aside (u).

Charge : — If necessary the charge may be drawn up as follows : —

I ( name and office of Magistrate, etc.) hereby charge you ( name of the accused)
as follows : —

That you, on or about the day of , at , knowing

that by a certain order, to wit promulgated by a public servant, lawfully

empowered to promulgate such order, to wit were directed to abstain

from ( specify the act ) [or to take certain order, to wit with certain property,

to wit , in your possession (or under your management)] disobeyed such

direction, and thereby committed an offence punishable under s. 188 of the Indian
Penal Code, and within my cognizance.

(n) Bithal, (1913) 15 Cr. L. J. 177 : 22 I. C. 753 (Oudh).

(o) Abdullah , (1902) 44 Cr. L. J. 705: 63 I. C. 865 (Lah.), followed in Ramdas
Singh , (1926) 54 C. 152.

(p) Chandra Kanta v. Kanylal, 20 C. W. N. 981 : 17 Cr. L. J. 464 : 36 I. C. 144.

(q) Kumud Nath Chakravarty V. Ajoo Pramanik , (1920) 21 Cr. L. J. 675: 57
I. C. 915 (Cal.), following Projapat Jha t (1914) : 14 C. W. N. 234 : 11 Cr. L. J. 49 :
5 I. C. 154.

(r) Mrilunjoy, (1919) 23 C. W. N. 520 : 29 C. L. J. 382 : 20 Cr. L. J. 557 : 51 I. C.

845 :

(s) Mahim Chandra Nath Bhotvntic, (1928) 56 C. 824 (830) followed in Gavesh
Mavlangkar , (1930) 33 Bom. L. R. 61 (67) ; Lachnti Devi , (1930) 58 C. 971 : 35 C. W. N.

257.

hat,

(t) Lachmi Devi , (1930) 58 C. 971 : 35 C. W. N. 257 ; Ganesh Vasudev Mavlang ■
(1930) 55 B. 322 : 33 Bom. L. R. 59.

(u) Rama , (1913) 35 A. 136 : 11 A. L. J. 92 : 14 Cr. L. J. 122 : 18 I. C. 682.

330

THE INDIAN PENAL CODE

[CHAP. X

And I hereby direct that you be tried on the said charge.

Punishment : — A sentence of rigorous imprisonment passed by a Magistrate
under this section for disobedience to an order duly promulgated by a public servant
was altered to one of simple imprisonment, as the Magistrate's finding did not
show that the case came within the latter part of the section, in which case alone
the infliction of rigorous imprisonment was authorised (v).

Revision : — The propriety of orders by executive authorities with the view
of preventing a breach of the peace is not to be called in question by the appellate
judicial authorities. It is when the executive officersjseek to enforce those orders
by the infliction of penalties that the Courts have to'jtep in and see whether the
orders made were with authority or not (w).

Disobedience to order duly promulgated by a public servant : — This
section was not intended to apply to matters in a civil Court between party and
party, and a person to whom property has been entrusted by an attaching Court
cannot be convicted for failing to produce it when directed (x).

A disobedience of a valid order under s. 144, Cr. P. Code, is punishable under
this section but the disobedience is not punishable unless it causes or tends to cause
obstruction, annoyance or injury, to any person lawfully employed (y), or likely
to cause a breach of the peace (z), or other danger or trouble (a) and must be in
writing (b).

Ingredients : — Where an order was duly promulgated by the Magistrate not
to assemble, it is not enough to prove that an order was duly promulgated and that
the persons would not go when ordered to go away. To convict accused under this
section it must also be found that the assembly of the accused was likely to cause
obstruction or annoyance to the other party and thereby tended to create a riot,
i.e., any one of the things mentioned in cl. (3) of this section (c).

Where verbal order was given by a Sub- Inspector of Police asking the Hindus
to stop procession with music past a mosque but the processionists disobeyed the
order, Walsh A. King, C. J., held that s. 188 was applicable but Sulaiman, J.
held a contrary view (d). To sustain a conviction under this section there must be
evidence that the accused had knowledge of the order with the disobedience of
which he is charged. Mere proof of a general notification promulgating the order
does not satisfy the requirements of the section (e). It is necessary to prove by
positive evidence that the accused person has knowledge that the order has been
made (f).

Meaning of ‘promulgated 9 : — The word promulgated' in this section applies
to orders made by public functionaries for public purposes, and not to an order
made in a civil suit between party and party fg).

(v) Ratanrao Bin Mahadevrao, (1867) 3 Bom. H. C. R. (Cr. C.) 32.

(w) Surjanarain Das , (1880) 0 C. 8« («0).

(x) Hira Lai , (1919) 22 Cr. L. J. 381 : 61 I. C. 237 (Oudh).

(y) Parameshwar Rai, (1922) 3 Pat. L. T. 268 : 1922 Pat. Supp. C. W. N. 204 :
26 Cr. L. J. 381 : 67 I. C. 206 : A. I. R. 1922 p. 84.

(z) Brojo Nath Ghosh , (1900) 2 C. W. N. 446, followed in Ramgopal Daw, (1906)

32 C. 793 (796). *

(a) Dabiruddin Mohammad , A. I. R. (1930) C. 131.

(b) Mulraj, 36 P. R. 1905 Cr. : 2 Cr. L. J. 719.

(c) Paramashiva Mopan, (1928) M. W. N. 70, followed in Din Mohammad. (1923)
10 L. 231 (236).

(d) Raghunath, 47 A. 206 : 22 A. L. J. 1049.

(e) Ramdas Singh, (1926) 54 C. 152 : 44 C. L. J. 250.

(f) Sheikh Abdul, 31 C. W. N. 340.

(g) Chdndrakanta De t (1880) 6 C. 445 (446), followed in T. K. P . Mammali v.
T. Kutee, (1915) 39 M. 543.

SBC. 188 ] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUBLIC SERVANTS 331

It if necessary that the order should be directed to the accused (h).

Where the order under s. 144, Cr. P. Code, was not served in accordance with
the provisions of s. 134, Cr. P. Code, held that it is a mere irregularity not fatal to a
prosecution under this section. Held , further that when the order has been duly
made and promulgated, although not strictly in accordance with the terms of the
law, and has actually been brought to the actual knowledge of the person sought
to be affected by it, that is sufficient to bring the case under this section (i).

Where a magistrate issued a general proclamation under s. 133, Cr. P. Code,
prohibiting the establishment of cotton-ginning yards, a person disobeying that
order cannot be convicted under this section (j). When an order was passed under
s. 518 of Act X of 1872 corresponding to s. 144 of the present Criminal Procedure
Code, restraining the Sarogis of Etah from taking their religious procession through
a particular route and in the following year there was no fresh promulgation of the
order, held that the conviction under this section was bad (k). The Allahabad
High Court held that the question whether the order was a legal one was an entirely
distinct question from the question whether an offence had been committed in dis-
obeying it. If the order promulgated was a legal order the Court has only to see
whether the accused disobeyed that order and whether, if so, such disobedience
caused or tended to cause the effects specified in the second and third paragraphs
of this section (1). Where the order under s. 145, Cr. P. Code, was illegal inas-
much as there had been no proper enquiry regarding the existing possession of the
parties, held , the conviction under this section could not be upheld (m). Where
the disobedience of an order under s. 144, Cr. P. Code, did not show that the dis-
obedience caused or tended to cause obstruction, annoyance, injury or a riot, the
High Court of Calcutta set aside the conviction of the accused under this section (n).
Disobedience of a notification under s. 23 (3) read with s. 123 of the City of Bombay
Police Act has been held to be an offence under s. 188, I. P. C., and the offence
which was alleged to be the common object of an unlawful assembly being an offence
under s. 188, fell under cl (3), s. 141 (o).

Lawfully empowered to promulgate such order To support a con-
viction under this section there must be evidence that the order has been promul-
gated by a public servant lawfully empowered to promulgate such order (p), and
it must be proved that the accused has knowledge that the order has been promul-
gated (q).

The order of a District Magistrate under s. 144, Cr. P. Code, forbidding the
public to hold caste dinner owing to prevalence of cholera in a city being without
jurisdiction, disobedience is not punishable (r). Costello, J., doubted whether a

(h) Nabo Kishore Chacherbutty , (1880) 7 C. L. R. 291 ; Kamal Kisto Bonick ,
(1883) 12C.L. R. 231.

(l) Purbutty Charan Aich, (1888) 16 C. 9 (12); Goluck Chandra Paul v. Kali
Charan De, (1886) 13 C. 175.

(j) Manek Chand , (1887) Rat. Unrep. Cr. C. 342.

(k) Sheodin , (1887) 10 A. 115.

1) Bhure Mai, (1923) 45 A. 526 (528) : 24 Cr. L. J. 689 (690) : 73 I. C. 801 ;
A.I.R. (1923) All. 606.

(m) Musammat Sardara t (1913) P. L. R, No. 92 of 1913 : P. W. R. No. 16 (Cr.)
of 1914 : 14 Cr. L. J. 63 : 18 I. C. 351.

(n) Projapatjha, (1909) 14 C. W. N. 234 : 11 Cr. L. J. 49 : 5 I. C. 154, followed
in Kumud Chakravarty v. Adoo Pramanik , (1920) 21 Cr. L. J. 675 : 57 I. C. 915 and
also followed in Parameswar Rai, (1922) 3 Pat. L. T: 268 : 23 Cr. L. J. 381 : 67 I. C.
205.

(o) Bhalchandra Ranadive, (1929) 31 Bom. L. R. 1151.

(p) Suban Singh , (1875) 23 W. R. (Cr.) 57.

(q) Sheikh Abdul , 31 C. W. N. 340 ; Ramdas Singh, (1926) 52 C. 154 : 44 C. L. 1.
250, following Abdulla , (1921) 22 Cr. L. J. 705 ; Abalock Lai v. Sirnam Singh, (1871
16 W. R. (Cr.) 50.

(r) Lakhmidas Mohandas , (1889) 14 B. 165 ; Jasoda Nand, (1898) 20 A. 501.

332

THE INDIAN PENAL CODE

[CHAP. X

notice under s. 144, Cr. P. Code, served upon a particular individual can be said to
have been * promulgated # within the meaning of this section (s). A delegation
under rule 104 by the Collector to a Divisional Officer of the power under the Epi-
demic Diseases Act (III of 1897) to call upon people to evacuate houses is illegal
and an omission to comply with the order is no offence under this section (t).

A person when he is directed by the order of a public servant duly promulgated
to him not to ply a boat for hire at the vicinity of a public ferry disobeys such
direction, he is punishable under this section (u).

Before a person can be convicted under this section it should be proved that
he was aware of the lawful order and with that knowledge disobeyed it (v).

Probhat Ferri case : — Where on a Sunday morning some ladies were pro-
ceeding along a street singing a song and, in this way, constituted a procession, they
having had no license from the Commissioner of Police to take out this pro-
cession, and the defence was that they were going along singing a Bhajan song
(religious song), held that the Commissioner of Police had no power to promulgate
to the public a general order prohibiting all processions or all public assemblies
and, as such, disobedience of the order was not punishable (w).

Order: — This section applies to disobedience of orders under Ss. 133, 136
and 144 of the Cr. P. Code.

A verbal order under s. 133 has not the effect of a final order under s. 137 and
is therefore not lawful. A person disobeying such order cannot be convicted under
this section (x). The operation of this section is limited to the promulgation by
a public servant of public orders relating to the safety, the health or the convenience
of the public (y). The primary purpose of an order under s. 69 of the Bengal
Tenancy Act is to prevent breaches of the peace, and the disobedience of a prohi-
bitory order under cl. (3) falls within the provisions of this section (z).

Disobedience of order under s. 144 : — Cognizance of an offence under
this section for disobedience of an order under s. 144, Cr. P. Code, cannot be taken
except in accordance with the provisions of s. 195 of the Cr. P. Code (a). When
the petitioners were prosecuted under this section for having disobeyed an order
under s. 144, Cr. P. Code, there being no suggestion that they were in any sense
creating a disturbance, the Calcutta High Court set aside the order of conviction
under this section (b). An order under s. 144, Cr. P. Code, forbidding the
citizens of a district, owing to the prevalence of cholera from generally giving caste
dinners being illegal, a conviction under this section was held illegal (c).

* directed to abstain from a certain act 9 Where the Magistrate ordered
under s. 144, Cr. P. Code, Mr. B. N. Sasmal not to enter Midnapore and to leave
Midnapore within 24 hours, Rankin, C. J., held that the words ' abstain from

(s) Chuni Lai Motilal, (1931) 36 C. W. N. 792.

(t) In re, Nagappa Thevan, (1913) 38 M. 602.

(u) Mathura v. Jawahir, (1877) 1 A. 627.

(v) A be lakh Lull v. Sirnam Singh , (1871) 16 W. R. (Cr.) 60.

(w) Lachmi Devi , (1930) 58 C. 971 : 35 C. W. N. 257 ; see M. 5. Adhikari, (1930)
33 Bom. L. R. 325, see contra Ramchandra Narain Sastri , (1931) 65 B. 725: 33
Bom. L. R. 1169: A. I. R. (1931) Bom. 520.*

(x) Janakinath Chakraverty V. Jnanendra Nath Chahraverty , (1914) 16 Cr. L. J.
24 : 26 I. C. 320 (Cal.).

(y) Mallappa , (1915) 17 Bom. L. R. 676 : 16 Cr. L. J. 668 : 30 I. C. 652.

(z) Lahshan Bor v. Nara Narain Hazra, (1921) 48 C. 1086.

(a) Mritunjoy Gon , (1919) 23 C. W. N. 620 : 29 C. L. J. 382 : 20 Cr. L. J. 567 :
511. C. 845.

(b) Sujal Biswas v. Samiruddin, (1917) 22 C. W. N. 599 : 19 Cr. L. J. 739 : 46
I.C. 516.

(c) Lakhmidas, (1889) 14 B. 165; see Lala Mitterjee Singh v. Raj Coomat,

(1872) 18 W. R. fCr.) 22, *

SEC. 189 ] OF CONTEMPTS OF LAWFUL AUTHORITY OF PUBLIC SERVANTS 333

doing an act * in s. 144, Cr. P. Code, do not empower Magistrates to make a
positive order and, as such, the order under s. 144, Cr. P. Code, being illegal,
conviction under this section was Held bad (d).

Order under *. 145, Cr. P. Code Where a person was not only aware of
an order under s. 145, Cr. P. Code, but had acted in collusion with one party,
resisted the execution of such order, held , he is guilty under this section (e).

Regulation of music in a public street Dalai, J., sitting singly, set aside
the conviction of the petitioner under this section when the petitioner, accompanied
by a large number of men, did pass through Moradabad city during the Holi in a
procession accompanied with music in violation of the order of the S. P. viz., ‘no
crowds attended by music shall pass through the inhabited parts of the city*, the
learned Judge holding such notification declaring total prohibition to be illegal (f).

Disobedience without obstruction, annoyance or injury insufficient
for conviction : — To constitute an offence under this section it is not sufficient
to show that the accused has knowingly disobeyed an order promulgated by a public
servant but it is necessary to show that such disobedience caused or tended to cause
obstruction, annoyance or injury to any person lawfully employed (g). Where
there was no proof of causing or tending to cause obstruction, annoyance or injury
to any one, it did not follow that selling drinks would lead to riots or disturbance,
held, the coiwiction under this section was bad (h). The application of this section
is with reference to the violation or disobedience of an order under s. 144,
Cr. P. Code, prohibiting public meetings or an assembly of persons
which owing to political considerations is being resorted to in almost every
part of the country. See cases collected under the caption * Disobedience of Order
under s. 144-A.* Although the High Court generally does not interfere with an order
under s. 144, Cr. P. Code, in revision after the lapse of 60 days in the following
cases (i) where the petitioners were ordered to be prosecuted under this section the
High Court of Calcutta interfered. Another class of cases is found in daily prac-
tice, viz., disobedience of an order under s. 144, Cr. P. Code, regulating the right to
take processions or, in other words, the much vexed question of ‘ Music before
Mosque.* In this connexion the following cases (j) may be usefully referred to.

189. Whoever holds out any threat of injury to any public
servant, or to any person in whom he believes
pubUcservant!” Ury to that public servant to be interested, for the

purpose of inducing that public servant to do
any act, or to forbear or delay to do any act, connected with the
exercise of the public functions of such public servant, shall be
punished with imprisonment of either description for a term which
may extend to two years or with fine, or with both.

(d) B N. Sasmal, (1931) 58 C. 1037 : 53 C. L. J. 175.

(e) Stilya Charan De, (1929) 33 C. W. N. 1002.

if) Shanker Singh f (1928) 51 A. 485.

(g) Ebrahim Sarkar, (1901) 29 C. 236 : 6 C. W. N. Ml.

(h) Yerlagadda Venkanne , (1924) 48 M. L. J. 605 : (1925) M. W. N. 396.

(j) Chandra Kanto KanjUal, (1916) 20 C. W. N. 981 ; Chandranath Mukherjee v.
E. I. My. Co., (1518) 23 C. W. N. 145; Ram Gopal Goenka v. Narayandas Chandra,

• (1928) 32 C. W. N. 613, see also Muthu Kumarswatni Nander v. Muhammed Rowthcr ,
(1921) 42 M. L. J. 352 23 Cr. L. J. 404.

(j) Viswanath Rao t (1925) M. W* N. 615 (F. B.) following the leading case of
Sunday am Chetty , (1882) 6 M. 203 (F> B.) ; see also Mansur Hassan v. Mu hammed
Zaman , (1924) 52 I. A. 61 : 29 C. W. N. 486 : 47 A. 151 (P. C.) ; Vijaraghavacharidf ,
(1902) 26 M. 554 (F* B.) ; Shanher Singh , (1928) 51 'A. 475.

334

[CHAP. X

THE INDIAN PENAL CODE

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge In the absence of the words actuajly used in the threat convic-
tion was set aside. Hence it is material to set out in the charge the actual words
used (k).

Form of charge : — I (name and office of Magistrate, etc.) hereby charge you
(name of the accused) as follows

That you, on or about the day of , at ~ , by using the

following words (state words complained) held out a threat of injury to ,

a public servant in the Department (or to in whom you be-
lieved a public servant to wit , was interested) for the

purpose of inducing that public servant to do an act, to wit (or forbear

or delay to do ), connected with the exercise of the public functions

of such public servant, and thereby committed an offence punishable under s. 189
of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Threat of injury to a public servant : — In order to sustain a conviction
under this section there must be a threat of injury to either the public servant or to
any one in whom he (the accused) believes that public servant to be interested (1).

The word ‘ injury ’ here implies an illegal harm and the mere threat to bring
a legal complaint either before a Court or a constable superior was held to be no
‘ injury * and the petitioner was acquitted (m).

When two constables went at night to the house of a dagi kept under surveillance
pursuant to an order under Regulation 491 of 1895, and called out his name from
the public road, and his brother who lived in an adjoining hut came out and
threatened to assault the constables for the annoyance caused, held that it
amounted to an offence under this section (n).

190. Whoever holds out any threat of injury to any person
for the purpose of inducing that person to
refrain or desist from making a legal applica-
Tbreat of injury to tion for protection against any injury to any
from applying for pro- public servant legally empowered, as such,
tection to public servant, to gj V e such protection, or to cause such
protection to be given, shall be punished with
imprisonment of either description for a term
which may extend to one year, or with fine, or with both.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —

Triable by Presidency Magistrate or Magistate of the first or second class.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of the accused) as follows : —

That you, on or about the day -of ,

at , held out a threat of injury to (name of the person threatened)

by stating (quote the words used) and which words you uttered for the purpose .
of inducing the said to refrain or desist from making a legal

(k) Maheskri Baksh Singh , (1886) 8 A. 380, -

* (1) Amirkkan, (1880) Rat, Unrep. Cr. C. 273.

(m) SahdadKhan , (1926) 6 L. 559 : A. I. R. (1926) L. 139. r

(n) Yar Mohammad, (1930) 58 C. 392.

SEC. 191 ] OF FALSE EVIDENCE AMD OFFENCES AGAINST PUBLIC JUSTICE 385

application for protection against any injury to wit — to -a

public servant legally empowered as such to give such protection (or to cause such
protection to be given), and thereby committed an offence within my cognizance.

And I hereby direct that you be tried on the said charge.

* threat of injury 9 — Threat of civil suit is not an injury (o).

CHAPTER XI.

Of False Evidence and offences against Public Justice.

“ Many things which interfere with the administration of justice are made
punishable in the preceding Chapter of offences relating to contempts of the lavrful
authority of public servants, and elsewhere in the Code. This Chapter is intended
to provide for certain offences of that description which either do not properly fall
within other Chapters, or which call for more severe punishment because com-
mitted in order to obstruct public justice. It includes false evidence, and certain
other offences against justice.

“ The authors of the Code thought it expedient to use the technical terms of
the English law where they did not adopt its definitions and materially departed
from it in substance. The offence of attempting to impose on a Court of Justice
by false evidence is therefore not designated in the Code by the word ‘ perjury *
which is used in the English law and in the Regulations. For in the Code the de-
finition of this offence is wider in its scope than that which is to be found in the
English law or the Regulations M (p).

191. Whoever being legally bound by an oath or by an express
provision of law to state the truth, or being
(riving false evidence. bound by law to make a declaration upon any
subject, makes any statement which is false,
and which he either knows or believes to be false or does not
believe to be true, is said to give false evidence.

Explanation 1. — A statement is within the meaning of this
section, whether it is made verbally or otherwise.

Explanation 2 . — A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may
be guilty of giving false evidence by stating that he believes a thing
which he does not believe, as well as by stating that he knows a
thing which he does not know.

Illustrations.

»

(a) A , in support of a just dlaim which B has against Z for one thousand rupees,
falsely swears on a trial that he heard Z admit the justice of B's claim. A has given
false evidence. y

[o) Mutai BM, (1925) 24 A. L. J. 314 : 27 Cr. L„ J. 351 : A. I. R. ( 1927 ) A. 297 .
|p) Morgan and Macpherson, p. 156.

336 THE INDIAN PENAL CODE [CHAP. XI

. \

(b) A, being bound by an oath to state the truth, state* that he believes a cer-
tain signature to be the handwriting of Z , when he does not believe it to be the hand-
writing of Z. Here A states what he knows to be false, and therefore gives false
evidence.

(c) A , knowing the general character of Z's handwriting, states that he believes
a certain signature to be the handwriting of Z ; A in good faith believing it to be so.
Here A* s statement is merely as to his belief, and is true as to his belief, and, therefore,
although the signature may not be the handwriting of Z, A has not given false evidence.

(d) A, being bound by an oath to state the truth, states that he knows that Z
was at a particular place on a particular day, not knowing anything upon the subject.
A gives false evidence whether Z was at that place on the day named or not.

(e) A, an interpreter or translator, gives or certifies as a true interpretation
or translation of a statement or document, which he is bound by oath to interpret or
translate truly, that which he is not and which he does not believe to be a true inter-
pretation or translation. A has given false evidence.

Analogous law : — “Any person lawfully sworn as a witness or as an inter-
preter in a judicial proceeding who wilfully makes a statement material to that
proceeding which he knows to be false or does not believe to be true is guilty of
perjury " (q). *

Under the Perjury Act, 1911 (I and 2 Geo. V., c. 6) ‘ perjury * is defined as
follows : —

See. 1 — (1). If any person lawfully sworn as a witness or as an interpreter in
a judicial proceeding wilfully makes a statement material in that proceeding, which he
knows to be false or does not believe to be true, he shall be guilty of perjury, and
shall, on conviction thereof on indictment, be liable to penal servitude for a term not
exceeding seven years, or to imprisonment with or without hard labour for a term
not exceeding two years, or to a fine or to both such penal servitude for a term not
exceeding seven years, or to imprisonment with or without hard labour for a term not
exceeding two years, or to a fine or to both such penal servitude or imprisonment and
fine.

(2) The expression 'judicial proceeding ' includes a proceeding before any Court,
tribunal or person, having bylaw power to hear, receive, and examine evidence on
oath.

(3) Whore a statement made for the purposes of a judicial proceeding is not made
before the tribunal itself, but is made on oath before a person authorised by law to
administer an oath to the person who makes the statement, and to record or authenti-
cate the statement, it shall, for the purposes of this section, be treated as having been
made in a judicial proceeding.

(4) A statement made by a person lawfully sworn in England for the purposes
of a judicial proceeding —

(a) in another part of His Majesty's dominions ; or

(b) in a British tribunal lawfully constituted in any place by sea or land outside

His Majesty's dominions ; or

{$) in a tribunal of any foreign state, shall, for the purposes of this section, be
treated as a statement made in a judicial proceeding in England.

(5) Where, for the purposes of a judicial proceeding in England, a person is
lawfully sworn under the authority of an act of Parliament — (a) in any other part of
His Majesty’s dominions; or (6) before a British tribunal or a British officer in a
foreign country, or within the jurisdiction of the Admiralty of England ; a statement
iqad$ by such person so sworn as aforesaid (unless the Act of Parliament under which
it was made otherwise specifically provides) shall be treated for the purposes of this
section as having been made in the judicial proceeding in England for the purposes
whereof it was made.

(6) The question whether a statement on which perjury is assigned was
material is a question of law to be determined by the court of trial.

Russel then deals with ‘perjury* under the following headings:— (I) Law-
fully Sworn, (2) Unsworn Evidence, (3) Judicial Proceeding, (4) Competent Juris-
diction, (5) Materiality, (6) Deliberation, (7) Falsity (r).

(<j) Stephen’s ’Digest of the Criminal Law, ’ Article 190.
(r) Kassel, Vol. I, 8th Edn., p. 400, 603.

SEC. Ml ] OP FALSE EVIDENC# ANI> OFFENCES AGAINST PUBLIC JUSTICE 337

English and Indian law compared 4 The English law is not applicable
since the Indian Legislature has not followed the law of England in regard to perjury.

“ . . . . the framers of the Indian Penal Code in Note G # to their Report thought proper
to discard the English law of 4 perjury 4 and to draft the provisions of the Indian
Penal Code in this respect upon the lines of the French Code Penal regarding
' faux temoigange' The Indian Law Commissioners were afterwards pressed to

at least allow the word ‘ perjury 4 to be retained in the Code on the ground that

the authors of the Code thought it inexpedient to use the technical terms of the
English law where they did not adopt its definitions, and so materially departed
from it in substance ” (s).

This section deals with the making of any statement which the maker either
knows or believes to be false or does not believe to be true (t). The law of England
requires that a false statement in order to support a charge should be material to
the question in dispute but the Penal Code does not impose that qualification (u).

Scope : — “ The words of this section are very general and do not contain
any limitation that the statement made shall have any bearing upon the matter in
issue. It is sufficient to bring a case within that section if the false evidence is
intentionally given, that is to say, if the person making the false statement makes it
advisedly, knowing it to be false, and with the intention of deceiving the Court and
of leading it to be supposed that that which he states is ture. No doubt, there must
be a corrupt intention at the time the false statement is made, but here I think
it clear that there was a corrupt intention on the part of the prisoner although the
intention was not corrupt quod any matter in issue in the particular suit in which
he was being examined as a witness " (v).

Being legally bound by an oath or by any express provision of law to
state the truth or being bound by law to make a declaration upon any
subject : — S. 4 of the Indian Oaths Act (Act X of 1873) mentions the Courts or the
persons who have authority to administer oaths and affirmations. Section 5
mentions the persons by whom oaths or affirmations must be made.

4 hound by any express provision of law * : — A person giving false evidence in
a proceeding under the Bengal Tenancy Act cannot be convicted under this sec-
tion or s. 199 (w). A conviction may be had under this section even if the evidence
be given in matters not judicial, e.g ., before the Collector acting under Regulation
XIX of 1814 but it must be proved that the false statement was made under the
sanction of law (x). A Full Bench of the Calcutta High Court decided that the
words * shall be bound to answer all questions * did not contain 4 an express pro-
vision of the law to state the truth 4 within the meaning of s. 191 (y). A person
examined under s. 161 of the Criminal Procedure Code is not ‘legally* bound to
state the truth (z). The Legislature intended to protect an accused person from
the ordeal of examination as a witness and to render him incapable of being punished
under this section (a). An accused person cannot be charged either with giving
or fabricating false evidence with the sole object of diverting suspicion from himself

(s) Per Duthoit, J., in Ghulct, (1884) 7 A. 44 (51), where English cases on the
point are referred to. -

(t) Babu Ram , (1004) 2(5 A. 509 (fill).

(u) Pet Jenkins, C. J., in Balgangadhar Tilak , (1004) 28 B. 470 (486) : 6 Bom.
T-. R. 324 (326).

(v) Mahomed Hossain, (1871) 16 W. R. (Cr.) 37; Shib Prosad Girt. (1873) 10
W. R. (Cr.) 60, followed in Baburam, (1904) 26 A. 509.

(w) Abdul Majid V. Krishna Lai Nag, (1893) 20 C. 724.

(x) Audheen Roy, (1870) 14 W. R. (Cr.) 24, see Govinda Chandra Seal, { 1892)

19 C. 355. ' *

' (y) Kasim Khan, (1881) 7 C. 121 (F. B.) : 8 C. L. R. 300.

(z) ' Sankaralinga , (1900) 23 M. 544, following Kasim Khan t (1881) 7 C. 121 (F B.) .

(a) Barkat, (1896) 19 A. 200 ; Subbayva, (1889) 12 M. 451 ; Bindheswari , (1906)
A. W.N. 42.

28

388

[CHAP. XI

THE INDIAN PENAL CODE

and concealing his fault in regard to a crime with' whidThe is charged (b). An
accused person is not bound by any express provision of law to state the truth and
therefore cannot be convicted under this section (c), and he cannot be prosecuted
for false affidavit in support of an application for transfer (d), although the Lahore
High Court in Gulam Muhammed's case (e) and the Allahabad High Court in
Beddu Khans case (0 have held a contrary view.

being bound by law to make a declaration upon any subject * : — A false verifica-
tion in a pleading is a false declaration under this section (g). The defendant in a
civil suit could be rightly convicted under this section if the denial in the written
statement was false to his knowledge (h). It was the obvious intention^of the
Legislature to bring the verification of statements in the pleadings by a person who
knew them to be untrue within s. 193 (i).

It is provided by the Civil Procedure Code that for the purpose of verification
of pleading the person verifying shall specify, by reference to the numbered para-
graphs of the pleading, what he verifies of his own knowledge and what he verifies
upon information received and believed to be true (j).

Where the law does not require a petition for substitution of parties to be
verified, held that a person who presents to Court a verified petition for substitution
containing a false statement of the death of the defendant is not punishable (k).
An applicant for mutation of names under s. 42 of the Bengal Land Registration
Act is bound by Rule 5, Chap. V, of the Rules of the Board of Revenue to make a
true declaration for the presentation, admission and verification of applications
for registration. Such declaration comes within the meaning of this section (1).

False balance-sheets — is not punishable under this section but under
s. 418 (m).

* makes any statement which is false’ In order to convict a person
of the offence of perjury, it must be shown that the statement said to have been false
could not but be false. Mere suspicion is not enough (n). In a charge under this
section it is enough to show that an accused person had made one statement upon
oath at one time and a directly contradictory statement at another time (o). To
establish the offence of giving false evidence, direct proof of the falsity of the state-
ment on which the perjury is assigned is essential. But as legitimate evidence for
the purpose, the law makes no distinction between thetestimonyofa witness directly
falsifying such statement, and the contradictory statement of the person charged,
although not made on oath. Such a statement, when satisfactorily proved, is
quite as good evidence in proof of the charge as the criminatory statement of a
person charged with any other offence and on precisely the same ground that it is
an admission of the accused person inconsistent with his innocence (p). To sus-

(b) Ramhhilawan, (1906) 28 A. 705.

(c) Haricharan, (1900) 27 C. 455 : 4 C. W. N. 249.

(fi) Barkat, (1897) 19 A. 200, followed in Bindeshri Singh, (1903) 3 A. L. J. 98;
Subappa, (1889) 12 M. 451 ; Bhashvam Chetti, (1896) 19 M. 209.

(e) (1922) 2 L. 46-23 Cr. L. j. 389 A. I. R. (1922) L. 113.

(f) A. I. R. (1928) A 182.

(g) Lakhu Shaha, (1894) P. R. No. 27 of 1894.

(h) Padam Singh, (1931) 52 A. 856.

(i) /. B. Ross v. C. R. Seriven, (1916) : 20 C. \V N. 1192 (1197)— Civil appeal
from ongma 1 side ; see Meherban Singh, (1884) 6 A. 626 to the same effect, Padam
Sirtgn, (1931) 52 A. 856.

(j) Or. VI, R. 15 (2), Civil Procedure Code (Act V. of 1908).

fk) Purendar Jha v. Nanulta Jha, (1926) 6 P. 184.

(l) Naloo Patra, (1910) 38 C. 368.

(m) Moss, (1893) 16 A. 88. ..

(n) Hira Nand Ojha, (1906) 10 C. W. N. 1099 (1101).

(o) Ghulet, (1884) 7 A. 44 — leading case.

(p) Rose, (1871) 6 M. H. C. R. 342 (343).

SEC. 192] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 339

tain a charge of perjury, the prosecution must establish inter alia (I ) that the state-
ment was false and (2) that it was known to be false or not believed to be true. In
other words, the statement must be intentionally false (q).

False evidence improperly admitted : — On the hearing of an application
for an order of affiliation against H, in respect of a full grown bastard child born in
March, the mother in answer to question put to her in cross-examination, denied
having had carnal connection with G in September previous to the birth. G was
called to contradict her ; the Justices admitted his evidence and he wilfully and
falsely swore that he had carnal connection with her at the time specified, held,
(by eleven of the Judges) that although the evidence of G ought not to have been
admitted to contradict the mother, still as it was admitted, it was evidence material
to her credit ; and consequently so far material in the enquiry before the Justices
as to be capable of being made the subject of an indictment against G for perjury (r).

192. Whoever causes any circumstance to exist or makes any
Fabricating false evi- false entry in any book or record or makes
dence - any document containing a false statement

intending that such circumstance, false entry or false statement
may appear in evidence in a judicial proceeding, or in a pro-
ceeding taken by law before a public servant as such, or before
an arbitrator, and that such circumstance, false entry or false
statement, so appearing in evidence may cause any person who in
such proceeding is to form an opinion upon the evidence to
entertain an erroneous opinion touching any point material to the
result of such proceeding is said “ to fabricate false evidence”.

Illustrations.

(a) A puts jewels into a box belonging to Z , with the intention that they may
be found in that box. and that this circumstance may cause Z to be convicted of theft.
A has fabricated false evidence.

(b) A makes a false entry in his shop-book for the purpose of using it as cor-
roborative evidence in a Court of Justice. A has fabricated false evidence.

(c) A, with the intention of causing Z to be convicted of a criminal conspiracy,
writes a letter in imitation of Z s handwriting, purporting to be addressed to an
accomplice in such criminal conspiracy, and puts the letter in a place which he knows
that the officers of the police are likely to search. A has fabricated false evidence.

Document — s. 29. Public servant— s. 21.

This section deals with ‘ fabricating false evidence.' The Authors of the
Code observe : “ It appears to us, in the first place, that the offence which we
have designated as the fabricating of false evidence is not punished with adequate
severity under any of the systems to which we refer. This may perhaps be be-
cause the offence, in its aggravated forms, is not one of very frequent occurrence in
western countries. It is notorious, however, that in this country the practice is
exceedingly common " (s).

Scope : — A false document is not fabricated evidence under this section unless
there was at the time of making it an intention that it would appear in evidence (t).
Under this section a person who makes any document containing a false statement,
intending that such false statement may appear in evidence before a public servant
as such, is said to fabricate false evidence (u).

(q) Taj Mohammed, (1927) 29 P. L. R. 14 : A. I. R. (1929) L. 125.

(r) Gibbon , (1820) 31 L. J. M. C. 98; Multanv, (1866) 34 L. J. M. C. 111.

(a) Note G.

(t) Lakshmaji, (1884) 7 M. 289 (290).

(u) Mohendra Misser V. Narayan Ram, (1905) 10 C. W. N. 220 (22*).

340

THE INDIAN PEN AT CODE

[CHAP. XI

In order to constitute an offence under this section, it is necessary to prove that
it was intended that the false circumstance should appear in a judicial proceeding,
that is, should appear as part of the evidence on which the judicial officer has to
form his judgment, and that circumstance was of such a nature as might have
caused the judicial officer to entertain an erroneous opinion touching some material
point in the case (v). In order to substantiate fabrication of false evidence it is
fiecessary that there should be an intention on the part of the fabricator that the
entry or statement may appear in evidence in a judicial proceeding or other pro-
ceedings of the like nature (w).

The essential elements of an offence under this section are

(1) That the accused caused the existence of any circumstance ;

(2) That he intended that such circumstance might appear in evidence in a
judicial proceeding; and

(3) That so appearing in evidence, it might cause any person, who in such
proceeding is to form an opinion upon the evidence, to entertain an erroneous
opinion touching any point material to the result of such proceeding (x).

'Whoever causes any circumstances to exist

containing a false statement 9 In Cheda LaVs case (x) it was held that the gist
of the offence did not consist in actually causing a failure of justice but in the inten-
tion to cause a failure of justice by misleading the Court and with such intent caus-
ing the existence of any circumstance which might appear in evidence.

4 which he either knows to be false or does not believe to be true* A

man cannot be convicted of perjury for having acted rashly, or for having failed to
make reasonable inquiry with regard to the facts alleged by him. It must be found
that he made some statement or statements which he knew to be false, or which he
believed to be false or which he did not believe to be true (y). The primary con-
sideration for prosecution for perjury is that a false statement should be made
4 intentionally * (z).

The making of a false statement without knowledge as to whether the subject-
matter of the statement is false or not, is legally a giving of false evidence (a).

Abetment of giving false evidence There can be no offence of abet-
ment of giving false evidence unless the person charged with abetment intended
not only that the statement should be made, but intended that the statement should
be made falsely (b). Where the prisoner asked a witness to suppress certain facts
in giving his evidence against the prisoner before the Deputy Magistrate on a charge
of defamation, held that this was abetment of giving false evidence in a stage of
judicial proceeding (c). A person who makes any document containing a false
statement, intending that ruch false statement may appear in evidence before a public
servant, as such, is said to fabricate false evidence (d). Where the accused merely
countersigned a report which was never read out to him and of the contents of which
he was not aware, held that the act amounted to an indiscretion on his part and
he was not guilty of abetting the fabrication of a false report (e).

(V)
fw)
(X)
35 (37)

(y)

(*)

(a)

(b)

(c)

(d)

(e)

Keilasum Putter , (1870) 5 M. H. C. R. 373 (374).

Mahommed Siddiq, (1907) 11 C. W. N. 91 1

*•

Muhammad Ishaq , (1914) 30 A. 362.

Azibulla Sarkar V . Udoy Santhal, (1908) 13 C W N 422* 1 T C za 7
Chan Meeah, (1805) 2 W. R. (Cr.) 47. 1 L U 487 ‘

Nimchand Mookerjee, (1873) 20 W. R. (Cr.) 41
Andy Chetty, (1865) 2 M. H. C. R. 438.

Mohadeo Misser V. Narayan Ram Jha, (1905) 10 OWN 220
Jai Jty Ram t (1919) 17 A. L. J. 574.

SEC. 192] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 341

Where C falsely represented himself to be U and the writer of a document
signed by U, and J, knowingly that C was not U and had not written such document,
adduced C as U and as the writer of that document, held that J should have been
found guilty of an offence under s. 193 read with s. 109 (f).

Judicial proceeding • — English law . — This phrase has been borrowed from
English law. Hawkins, observes ; It seems to be clearly agreed that all such
false oaths as are taken before those who are in any way entrusted with the admim>
tration of public justice in relation to any matter before them in debate are properly
perjuries/’

‘’And it is said to be in no way material whether such false oath be taken in
the face of a Court, or by persons authorised by it to examine a matter, the knowledge
whereof is necessary for the right determination of the cause ; and, therefore, a false
oath before a Sheriff upon a writ of enquiry of damages^ is as much punishable as
if it were taken before the Court on trial of the cause " (g).

“ At common law the oath must have been taken either in a judicial proceeding
or in some other public proceeding of the like nature before persons authorised by
the King to examine witnesses on any matter whatsoever. (1 Hawk., c. 69, s. 3).
Under the Perjury Act, judicial proceeding is given a very wide meaning. It is not
material whether it is a Court of record or not, or whether it is a Court of common
law, of equity, or of the civil law, or an ecclesiastical court, etc., nor whether the
oath is taken in the face of the Court, or out of it before the sheriff or his lawful
deputy or under-sheriff, on writ of inquiry, etc., or whether it is taken in relation
to the merits of a cause, or in a collateral matter, as one who offers himself to
be bail for another, swears that his substance is greater than it is/* (1 Hawk., c. 69,

s. 3).

“It does not matter whether the false evidence is given orally or on affidavit, or
in answer to interrogatories in an action, or concerning a contempt, nor whether the
oath was in the deponent’s own cause or in that of another person, nor whether the
evidence was given for the Crown or for the defence in a criminal case. Nor does
it matter whether the false oath was believed or disbelieved, nor whether it caused
any injury to the person against whom it was given ; for the gist of the offence is the
abuse of public justice, and not the injury to an individual/

“ There must be something in the nature of judicial proceeding, e.g., an existing
cause. But the oath may be the first step for initiating the proceeding, e.^., swear-
ing an information, or swearing an affidavit in support of an ex parte motion, or
swearing a petition in a divorce cause or an affidavit to support a summons to hold
to hail {King, 14 Q. B. 31). In the case of perjury in an affidavit or the like, the
offence is committed when the deponent takes oath to the truth of the affidavit, and
it is necessary to aver or to prove that the affidavit was filed cr in any way used " (h)«

Under s. 193, Explanation (2), an investigation directed by law preliminary
to a proceeding before a Court of Justice is a stage of a judicial proceeding, though
that investigation may not take place before a Court of Justice.

4 Judicial proceeding ’ has been defined in s. 4 of the Criminal Procedure Code,
and it includes any proceeding in the course of which evidence is or may legally
be taken on oath (i).

Where the accused, a public servant, in charge of certain documents having
been required to produce them, and being unable to do so, fabricated and produced
similar documents with a view to screening himself from punishment, held , he was

(f) Chundi Charan Nath , (1807) 8 W. R. (Cr.) 0.

(g) 1 Hawk., P. C. 430.

(h) Russel, 8th Edu. pp. 402, 403.

(i) Abdulla Khan t (1909) 37 C, 52.

342

THE INDIAN PENAL CODE

[CHAP. XI

not guilty under 3 . 218 or 263 471 but he was guilty of an offence^ under
3 . 193 (j). The Bombay High Court has held, that execution proceedings aye judicial
proceedings for the purpose of Ss. 192 and 193. It is not essential that the judicial
proceeding in which the person intends to use the false evidence must be pending
at the date of the fabrication. It was further held that no sanction was necessary
under s. 195 (b) of the Criminal Procedure Code (k). The Calcutta High Court
hap held that execution proceedings subsequent to the trial of a suit are not judi-
cial proceedings (1).

Where an accused person intended to use a kobala (in which he had falsely
recited that he had married a woman to whom he purported to convey a plot of
land in lieu of dower) in a judicial proceeding and thereby to mislead the Court,
held that he was guilty of an offence under this section (m).

4 touching any point material to the result of such proceeding 9
According to Stephen : “ The word 4 material * means of such a nature as to affect
in any way, directly or indirectly, the probability of anything to be determined
by the proceeding, or the credit of any witness and a fact may be material although
evidence of its existence was improperly admitted " (n).

AH false statements wilfully and corruptly made by a witness as to matters
which affect his credit are material and the accused is liable to be convicted of
perjury (o). On the trial of A , for perjury, in an affidavit made by him, and used
on the taxation of costs, the signature to the affidavit was proved to be in A's hand-
writing, but there was no evidence that A was the person who swore to the truth
of the affidavit, held that it was a material question on such trial whether A was so
present before the taxing master, and whether the affidavit was then used in A *s
presence, and whether it was then stated publicly that the affidavit was As (p).

Where the accused was a clerk whose duty it wa3 to register sales of cattles and
two persons brought some cattle in the market, but omitted to obtain receipts for
the same and on leaving the market they were asked to produce receipts before the
Sub- Inspector of Police, and they shewed a receipt granted by the accused, and the
accused was prosecuted for fabricating false evidence, the Allahabad High Court
held that the accused was not guilty as the receipt, so far from causing the Sub- In-
spector to entertain an erroneous opinion touching a point material to the result
of the enquiry he was making, might have caused him to form a correct opinion (q).

Accused N was proposing to sell some property to B, and a kobala , dated 23rd
May, was written out by N on stamp-paper of Rs. 5 ; the sale having fallen through
he applied to the Collector for extension of time. He took the advice of co-accused
N who told him that he might alter the date from 23rd May to 23rd September,#*
no refund would be made after two months. This was quite unnecessary on their
part as the period was not two months but six months. They were charged with
forgery and abetment of forgery ; held , they were guilty of fabricating and abetting
the fabrication of false evidence (r).

Evidence in a judicial proceeding : — It is not essential for the purpose of
s. 192 that there should be any judicial proceeding pending at the time of the fabric

(j) Muzher Hussain, (1883) 5 A. 553.

(k) In re . Govind Pandurang, (1920) 46 B. 668 ; 22 Bom. L. R. 1239 : 22 Cr. L. T.
49 : 69 I. C. 193.

(l) Kanto Ram Das v. Gobardhan Das, (1907) 36 C. 133, following Hava Chandra
Mookerjee , (1906) 32 C. 367.

(m) Legal Remembrancer v. A hi Lai Mandal, (1921) 48 C. 911.

(n) Stephen’s Digest of Criminal Law, Art. 148.

(o) Baker , (1896) 1 Q. B. 797.

(p) AlsopA 1869) 11 Cox. C. C. 264.

(q) Badri Prasad, (1917) 40 A. 36 : 16 A. L. J. 819 : 19 Cr. L. J. 2 : 42 I. C. 94.

(r) Mohesh Chandra Chaudhury , (1916) 28 C, L. J. 213, following Mir Ekrae Alt ,
(1880) 6 C. 482.

SEC. 193] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 343

cation. It is enough that there is a reasonable prospect of such a proceeding having
regard to the circumstances of the case and that the document in question is intended
to be useft in such a proceeding (s). Where it was contended that this section is
not applicable as the proceeding before the Collector was not a judicial proceeding,
held , * but it is clear from s. 193 that the provisions of s. 192 are meant to apply to
proceedings other than judicial proceedings , because by that section there is one
punishment provided for fabricating false evidence in a judicial proceeding and
another and a more mitigated punishment for fabricating false evidence in other
proceedings ' (t).

The making up falsely of accounts with the intention of producing them before
a Forest Officer not empowered by law to hold an investigation and take evidence
is not a fabrication of false evidence punishable under s. 193 (u).

Fabrication of inadmissible evidence is no offence The Calcutta
High Court has held that a person did not commit the offence of fabricating false
evidence punishable under this section by making a false statement in the recital
of title to property in a document when such statement is not admissible in evidence
against the person or persons against whose interest such statement is made (v).

Where a police-officer made a false entry in the special diary relating to a case
which was being investigated by him, held, he could not be convicted under this
section as the document in which the alleged false entry was made was inad-
missible in evidence (w).

The Punjab Chief Court has held that the weight of authority is in favour of
the view that there can be no fabrication of false evidence within the meaning of
s. 192 if the evidence is not admissible (x). Fletcher, J., doubted the correctness
of the reported decisions and held that it is the intention that creates the criminal
offence (s. 192) and not the fact as to whether the document is admissible in evi-
dence (y).

193. Whoever intentionally gives false evidence in any stage
of a judicial proceeding, or fabricates false
evWence. ment f ° r fa ' s ° evidence for the purpose of being used in
any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term
which may extend to seven years and shall also be liable to fine ;

and whoever intentionally gives or fabricates false evidence
in any other case shall be punished with imprisonment of either
description for a term which may extend to three years and shall
also be liable to fine.,

Explanation 1 . — A trial before a Court-martial is a judicial
proceeding.

Explanation 2. — An investigation directed by law preliminary
to a proceeding before a Court of Justice is a stage of judicial

(s) Raja Ram Bhavani Shanker , (1920) 22 Bom. L. R. 1229 (1232) : 22 Cr. L. J.
23 : 59 I. C. 135.

(t) Juggan Lat , (1880) 7 C. L. R. 366 (362).

(u) Ramaji Ray Jivbaji Ray , (1875) 14 Bom. H. C. R. 1.

(v) Chandra Kanta Missir, (1905) 2 C. L. J. 46.

(w) Takir Hussain , (1898) 21 A. 159.

(x) Fazl Ahmad , (1914) P. L. R. No. 139 of 1914 : 15 Cr. L. J. 344 : 23 I. C.

696 .

„ (y) Baroda Kanta Sarker , (1915) 16 Cr. L. J. 620 ; 30 I. C. 444 (Cal.).

344

THE INDIAN PENAL CODE

[CHAP. XI

proceeding though that investigation may not take place btfore a
Court of justice. 4

Illustration.

A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z
ought to be committed for trial, makes on oath a statement wrhich he knows to be
false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

Explanation 3. — An investigation directed by a Court of
Justice according to law, and conducted under the authority of a
Court of Justice is a stage of a judicial proceeding, though that
investigation may not take place before a Court of Justice.

Illustration .

A, in an enquiry before an officer deputed by a Court of Justice to ascertain on
the spot the boundaries of land, makes on oath a statement which he knows to be
false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

The prosecution has to prooe : —

(1) that the statements made by the accused were false in fact :

(2) that in making those statements the accused either knew or believed the
same to be false ; or did not believe the same to be true and there must be a finding
against the accused on these points before the conviction under this section can be
affirmed. This finding must be arrived at independently of the definition of
‘ good faith ” contained in s. 52 (z).

Scope : — To prosecute people, because they give evidence which is contra-
dictory merely on the basis of that contradiction is a doubtful procedure (a).

Reading over of deposition : — Where a prosecution for perjury is based
on a deposition, held that the deposition is not taken in accordance with law, within
the meaning of s. 80 of the Evidence Act, it is altogether inadmissible in evidence
and the accused is entitled to an acquittal (b).

Where there has been non-compliance with the provisions of s. 360, Criminal
Procedure Code, the evidence is inadmissible and there cannot be a prosecution
under this section. The reading of the deposition by a witness himself is not a
sufficient compliance with the provisions of s. 360, Criminal Procedure Code (c).

Although this view has been modified by the decision of the Judicial Com-
mittee in Abdar Rahmans case (d) so far as non-compliance with the provisions of
$. 360, Ci. P. Code, is concerned, but if a witness is prosecuted for perjury he can
take the plea that the evidence not taken in accordance with law within the meaning
of s. 80, Evidence Act, is inadmissible, or that the provisions of Or. XVII, r. 5, Civil

(z) Muhammad Ishaq, (1914) 36 A. 362 (364).

(a) Keramat Ali, (1928) 55 C. 1312.

(b) Ramesh Chandra Das, (1919) 46 C. 895 ; Mahendra Nath Missir, (1908) 12
C. W. N. 845 ; Mayedeb Gossami , (1881) 6 C. 762 ;

(c) Jogendra Nath Chose, (1014) 42 C. 240, following Mohendra Nath Misser,
(1008) 12 C. W. N. 846 and Jotish Chandra Mukerjee, (1000) 30 C. 066 ; Kadir Pakiri,
(1917) 11 Bur. L. T. 202 : 18 Cr. L. J. 007 : 39 I. C. 847 ; Jagat Ram, (1917) P. L. R.
No. 16 of 1919 : P. R. No. 28 of (1918) (Cr.) : P. W. R. No. 39 (Cr.) of 1918 : 19
Cr. L. J. 972 : 47 I. C. 872.

(d) (1920) 64 I. A. 96 : 31 C. W. N. 271 (P. C.).

SEC. 193] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 345

P . Code, not having been complied with, the evidence is inadmissible and as such
cannot b$ the basis of a prosecution -for perjury.

The provisions of Or. XVIII, r. 5 and 6 of the Civil Procedure Code are
directory, and non-compliance therewith does not render the depositon inadmis-
sible on a subsequent trial of the deponent either for giving false evidence or for
abetment of forgery and of dishonest user of a bond proved by him in the course of
a civil suit (e).

Sec. 91 of the Evidence Act bars the admission of secondary evidence to prove
a statement made by a witness, where the statement was not read over in the pre-
sence of the witness as required by Or. XVIII, r. 5 of the Civil Procedure
Code (f).

Where a person was charged with making false statements in his petition of
objection to the assessment of income-tax, and the petition was not signed and
verified in the manner required by s. 25 of the Income-tax Act and the order to
prosecute him did not disclose what was the particular statement which was under-
stood to be false, the Allahabad High Court held that the conviction of the accused
under this section was bad (g). In view of the Privy Council decision in Abdur
Rahmans case (h) which has held that non-compliance with the provisions of s. 360,
Cr. P. Code, is not an illegality but a mere irregularity curable under s. 537, Cr.
P . Code, the old case-law has not been rendered obsolete, but all that is required
now is to prove the deposition alleged to contain the false statement (i).
How to prove prejudice as indicated in the said Privy Council decision ? For all
practical purposes, s. 360, Cr. P. Code, is now a dead letter. The defence at the trial
may put in a petition before the Magistrate after the deposition is read over as to
what the witness actually said, or when the deposition is not read over, after the
conclusion of the trial, when he finds on taking certified copy of the deposition
that the actual words used by him have not been taken down, put in a petition
before the Magistrate to that effect and only where the Magistrate has omitted
to record something which affects the accused he can complain of prejudice.

In a trial for giving false evidence, the record of a previous deposition given
by the accused is relevant and necessary evidence. Such record is not inadmissible
under s. 145 of the Evidence Act which has no application to the case, nor because
actual vernacular words were not taken down (j). In order that a person should
be rendered liable under this section, it is essential that the perjury should have
been committed in the cause of any trial or proceeding before a civil, criminal or
revenue court or in the course of a judicial proceeding or that at least the statement
to which the assignment of perjury is attached should be made under a legal
sanction (k).

Illegal to base conviction upon a comparison of handwriting : — The

Rangoon High Court has held that where the Court uses its opinion on a com-
parison of handwriting in its judgment, it is not acting legally. The Court is not
debarred from acting on such opinion on the ground that it is the opinion of a person

(e) Elahi BakshaKazi. (1918) 46 C. 826 : 27 C. L. J. 377 : 22 C. W. N. 646 : 19
Cr. L. J. 498, followed in Mirbux, (1922) 18 N. L. R. 192 : 23 Cr. L. J. 600 : 681 C.
36: A. I. R. (1923) Nag. 39.

(f) Imam Din V. Niamatullah , (1920) 1 L. 361 : P. W. R. No. 10 of 1920 (Cr.) :
21 Cr. L. J. 830 : 68 l.C. 830, following Mayadev Goss a mi , 6 C. 762 ; Mohendra Nath
Missir , 14 C. W. N. 846.

(g) Jagdeo Sahu, (1917) 16 A. L. J. 163 : 13 Cr. L. J. 433 : 38 I. C. 993.

(h) (1296) 64 I. A. 96 : 31 C. W. N. 271 : 29 Bom. L. R. 813 overruling Hiralal
Ghosh , (1924) 62 C. 159 and Dargahi, (1924) 64 C. 299 and referring to Jyoiish Chandra
Mukherjee , (1909) 30 C. 966.

(i) Bhakoas Tatum, (1807) 7 W. R. (Cr.) 13.

(j) Government of Bengal V. Gannoo Mehta , (1908) 9 C. L. J. 378.

(k) JRaja Ram , (1929) 28 A. L. J. 251 where Sant Hal, 42 A. 130, referred to 068.

346

THE INDIAN PENAL CODE

[CHAP. XI

who had not been subjected to cross-examination ; where the alleged false state-
ment on oath was as to whether a particular document was written by tljp accused,
the court should not base its conviction upon the comparison of handwritings. No
man can be convicted of giving false evidence except on proof of facts which, if
accepted as true, show not merely that his evidence is incredible but that it js
impossible that his evidence on oath can be true (1).

Charge to the Jury : — In a case of false evidence, reading extracts from the
alleged conflicting statements of the prisoner, is not sufficient to enable the Jury to
form a fair opinion on the question. The whole of the deposition ought to be laid
before the Jury (m).

The making of any number of false statements in the same deposition is one
aggregate case of giving false evidence and such charges cannot be multiplied
according to the number of false statements contained in the deposition (n).

Proof : — In cases of perjury the due administration of the oath to the accused
person should be proved like any other fact (o). The true rule is that no man can
be convicted of giving false evidence except on proof of facts which, if accepted
as true, shew not merely that it is incredible, but that it is impossible that the
statements of the party accused made on oath can be true fp). In a case of giving
false evidence under this section, the statement which the accused is charged with
having made before the Magistrate, should be clearly proved to have been made
by him (q). No person should be convicted under this section unless it be proved
that it is impossible that the statements of the party accused, made on oath can
be true (r). The Nazir of a Subordinate Judge’s Court has no authority to ad-
minister an oath or affirmation on a statement to be used in a criminal Court. No
prosecution can therefore lie in respect of such a statement (s). The proceedings
in a criminal trial, when necessary to be proved, should be proved by their produc-
tion (t). Where perjury is assigned upon a written instrument, subsequently lost,
secondary evidence is admissible (u).

Charge of perjury ought to be based strictly upon the exact words which are
used by the person who is charged ; and no evidence which does not profess to
give those exact words can alone be a safe foundation for a conviction (v).

To shew that the perjury was wilful and corrupt, evidence may be given of
expression of malice used by the party towards the person against whom he gave
the false evidence (w). m

In a prosecution for alleged perjury by the accused who was a witness in a pro-
bate case, the judgment of the Probate Court is inadmissible in evidence. Former
statements of witnesses can be used in certain circumstances to contradict ot corro-
borate them ; they cannot be used as substantive evidence (x). Under *. 159 of the
Indian Evidence Act, a witness may use copy of a document to refresh his memory (y).

(l) Gupta , (1923) 1 R. 290.

(m) Kalicharan Gangooly, (1868) 6 W. R. (Cr.) 92.

(n) Rakhal Chandra Laha , (1909 ) 36 C. 808, see (1671) 6 M. fl. C. R. 27.

(o) A jay Ahmad, (1919) 20 Cr. L. J. 370 : 50 I. C. 978 (All.).

(P) Ahmed Alt , (1864) 11 W. R. (Cr.) 25.

(q) Siddhoo, (1870) 13 W. R. (Cr.) 56; Denonath Bujiar , (1868) 9 W. R. (Cr.)
524 ; Prodhum Ahir t (1872) 17 W. R. (Cr.) 32 (33).

(r) Padanath Singh V. Ratan Singh , (1909) 5 Pat. L. R. 23.

(s) Ganpat Deraji Patil, (1928) 31 Bom. L. R. 144.

(t) Raoji Taju, (1871) 8 Bom. H. C. (Cr. C.) 37.

(u) John M tines, (1860) 4 F and F 10.

(v) Mungal Das t (1875) 23 W R. (Cr.) 28.

(w) M unton, (1829) 3 C. and P. 498.

(x) Oates, (1923) 38 C L. J. 103. -W

(y) S. 159 of the Indian Evidence Act (I of 1872), ^

SEC. 193] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 347

On the trial of an indictment for perjury it should be proved distinctly what the
charge was on the hearing of which the false evidence was given (z).

It is an unusual procedure for an appellate Court which did not hear the
evidence to order a prosecution for perjury in the lower Court on materials which
were not before that Court and which the witness had no opportunity of explaining
while in the box (a).

Charge : — A charge which is not reasonably sufficient to give the accused
notice of the matter with which he is charged, is bad (b). Alternative charges
may be framed under this section (c). The crucial date in the case of an offence
committed under s. 193, I. P. C., is the date on which the offence was committed ;
while for the purpose of s. 195, Cr. P. Code, the crucial date is the date when the
Court takes cognizance of the offence (d).

In a case of giving false evidence the charge should show the particular matter
in respect of which the accused is put upon his trial ; and only so much of the
prisoner’s statement should be set out as is necessary to show the false statement
relied on by the prosecution (e). The charge under this section should show the
particular matter in respect of which the accused is put upon his trial ; and only
so much of the prisoner's statements ought to be set out as is necessary in order
to show the particular false statements relied on by the prosecution (f). Where
the prosecution is based upon certain statements falsely made by the accused, it is
essential to set out the exact statements in detail upon which the prosecution wants
to proceed (g).

A Magistrate making a commitment under this section must set out the
precise words recorded (h). Charges of perjury should contain a distinct asser-
tion, with regard to each statement intended to be characterised as perjury, that it
was made, that it is untrue in fact, and that the accused knew it to be so when he
made it (i).

The gist of an offence under this section is ‘ intention ’ and the charge should
specifically state what words or expressions the accused is charged with having
uttered, and in what respects they were supposed to be false and the charge should
be precise (j).

It is wholly incorrect to charge a number of persons jointly with intentionally
giving false evidence under this section. A charge under this section should show
what the statement is which the accused persons or any of them are alleged to have
made, and it should disclose the exact date on which the offence charged was com-
mitted and the Court or officer before whom the false evidence was given (k).

Form of charge I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at— , being

summoned as a witness in , being a judicial proceeding then pending

before the and being bound to state the truth intentionally gave false

(z) Carr , (1887) 10 Cox. C. C. 504.

(a) Lokenath Sahi, (1906) 10 C. W. N. 1091 (1093).

(b) Oates, (1923) 38 C. L. J. 163.

(c) Ghulet, (1884) 7 A. 44 (67), where Straight, C. J. # who decided the case of
Niaz Ali, 6 A. 17 hdd that decision to be erroneous as being based on English law,
see s. 446, ill.{b) t Cr. P. Code.

(d) In re. Indrachand Bhagbaji, (1931) 34 Bom. L. R. 294.

(e) Soonder Mohooree , (1868) 9 W. R. (Cr.) 25.

(f) Boodhun Ahir t (1872) 17 W. R. (Cr.) 32.

(g) Ramdhari Singh , (1917) 4 P. L. W. 44 : (1918) Pat. Suppl. C. W. N. 13 : 19

Cr. L. J. 169. fc

(h) Kalicharan Lahiree, (1868) 9 W. R. (Cr.) 64.

(i) ht re. Dowlat Moonshee, (1867) 8 W. R. (Cr.) 95.

(j) Foojdar Roy , (1868) 9 W. R. (Cr.) 14.

(k) maharaj Misser , (1871) 7 Beng. L. R. App. 66 : 16 W. R. (Cr.) 47,

348

THE INDIAN PENAL CODE

[CHAP. XI

evidence ( state here the false statement) which statement you either knew or be-
lieved to be false, or did not believe to be true, and thereby committed an offence
punishable under s. 193 of the Indian Penal Code, and within my cognizance (or
the cognizance of the Court of Sessions or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Where on evidence the accused could not be convicted of 4 murder 4 and was
acquitted although there was evidence to show that he had fabricated false evidence,
on appeal by the Local Government he was found guilty under this section (1).

Joint trial : — Where three persons, one of whom was a pleader, were tried
together and comicted under s. 181 of having made false statements in course of an
enquiry under the Legal Practitioners Act, held that the enquiry under the Legal
Practitioners Act was a judicial proceeding and that false statements made by the
witnesses should have been charged as offences under this section and the persons
so charged should have been tried separately (m).

In cases under this section the case of each accused should be separately
enquired into, and, if committed for trial, separately tried (n). A person accused of
a charge under this section is entitled to have the specific charge made against him
tried quite independently of a like charge against another person (o).

The offence of perjury is intimately connected with the statements made.
There may be, say, five statements, and, if those five statements be all false, there
would be five different offences (p), but such charges cannot be multiplied to the
number of false statements contained in a deposition (q).

Prosecution for an offence under this section when initiated under
s. 476. Cr. P. Code .—See Ss. 476-A, 476-B, Cr. P. Code.

Cognizance of the offence No Court shall take cognizance of any offence
punishable under this section when such offence is alleged to have been committed
in or in relation to any proceeding in any Court, except on the complaint in writing
of such Court or of some other Court to which such Court is subordinate (r).

Sanction Since the section has been amended the word * sanction ' has
been deleted. But the case-law on 1 sanction * is still good law because the
principles which governed 4 sanction * equally apply to 4 complaint * with this
modification that the clauses (4), (5) and (6) of s. 193 of the Code of Criminal
Procedure have been omitted by the amending Act of 1923. The prosecution
for perjury is an exceptional measure and sanction ought not to be granted
when material has only been furnished by an unnecessary examination in
Court (s).

Complaint - Under s. 193 (I) ( b ) of the amended Code of Criminal Procedure
complaint in writing by the Court is essential. Where the complaint does not
state what the false evidence given by the plaintiff was, the Madras High Court
held that the conviction under this section cannot stand (t). Now, appeal has
been provided in s. 476-B, Cr. P. Code ; but where false statements are made

(l) Ismail Khandxr sab, (1928) 52 B. 385: 30 Bom. L. R. 330, following Begu,
(1925) 6 L. 220 (P. C.) : 27 Bom. L. R. 707.

(m) Kotha Subba Chetti, (1883) 6 M. 252.

(n) Niaz All, (1882) 5 A. 17; Ananta Ram, (1882) 4 A. 293 ; Nathu Sheik , (1884)
10 C. 405.

(o) Khoablal, (1808) 9 W. R. (Cr.) GO, followed in Bhawani Shankar Haribhai,
(1808) 5 Bom. H. C. R. (Cr. C.) 55.

(p) Narthu Singh , A. I. R. (1928) A. 700.

(q) Rakhal Chandra Shaha, (1909) 36 C. $08.

(r) S. 195 (1) ( b ) of the amended Code of Criminal Procedure of 1923.

(s) Nga Bo Gyi, (1925) 3 R. 224. *

(t) Kalyani V. Ram Been Lela t (1924) 48 M, L. J, 290.

SEC. 193] OF FAT.SE evidence and OFFENCES AGAINST PUm.JC JUSTICE 349

in course of administrative enquiry and prosecution is ordered, no appeal lies
against the order (u).

An accused person is entitled to a decision from a Judge who approaches his
case with an absolutely open mind, and the Sessions Judge who lodged the com-
plaint under s. 476, Cr. P. Code, against the accused, who as a witness made
the contradictory statements, could not be allowed to be both the complainant and
the Judge in the same case (v).

Under the amended s. 476, Cr. P. Code, it has been held in a recent decision
that there must be a preliminary enquiry (w). It is submitted that this decision does
not follow from s. 476.

The correct view seems to have been enunciated in re. Raja Rao's case (x)
which laid down that the Court may, if it thinks fit, hold such preliminary
inquiry.

Punishment : — A false statement by a witness as to his position or character
ought not to be punished so severely as a false charge on a false claim (y). In extreme
cases you can evade passing rigorous imprisonment (z).

A deliberate mis-statement made in a Court of Justice whether it tends to
endanger the life and property of others or to defeat and impede the progress of
justice is not an offence which should be lightly passed over. But for a simple mis-
statement from which no such inference can be drawn, a comparatively light
sentence will suffice, particularly where the prisoner pleads guilty and throws
himself on the mercy of the Court (a).

Separate convictions under Ss. 192 and 414 are legal (h). It has been held by
Fawcett, J., and Crump, J. t (Shah, J., expressing no opinion) that a person
making more false statements than one in course of a single deposition can be con-
victed separately for each such statement (c).

‘ Locus penitential * A witness is entitled to locus penitentiae and an oppor-
tunity to correct himself and if, when he gets that opportunity, he recalls to his
mind any fact about which he had made a statement which was not quite accu-
rate, a prosecution for perjury would be hardly desirable (d). There ought to be
locus penitentiae for witnesses who depose falsely, retracting their false statements,
and the accused should be dealt with leniently (e).

The witness must be given an opportunity of correcting any answer given by
him and-the statement that he finally gave must be taken to be the evidence that he
intended to give (f).

Contradictory statements s — The English law on this point is not the same
as that in India.

(u) Raja Ram, A. I. R. (1929) All. 936.

(v) Sai, (1926) 8 L. 496.

(w) 51 C. L. J. 45, dissented from in Puma Chandra DuttV . Sheik Dhuht, 34
C. \V. N. 914.

(x) (1926) 50 M. 600 : 51 M. L. J. 331, followed in Provatk Ranjan Barat V.
Uma Sankar Chatterjee , (1930) 35 C. W. N. 98.

(y) Reivah Goallah , (1866) 5 W. R. (Cr.) 95 (96).

(z) Assart Musalirakoth Kunni, (1929) 56 M. L. J. 550 : (1929) M. W. N. 114.

(a) Gurjoon Aheer , (1867) 7 W. R. (Cr.) 37 (55).

(b) Ramesher Rai, (1877) 1 A. 379.

(c) Sejumal Punamchand, (1926) 51 B. 310 : 29 Bom. L. R. 170.

(d) Maharaj Prasad, (1923) 21 A. L. J. 673 : 24 Cr. L. j. 779 : 74 I. C. 443 :
A. I. R. (1924) A. 83.

(e) Gullie Mullik, (1864) W. R. (Gap. No.) 10.

(f) Gopal, (1890) Rat. Unrep. Cr. C. 502.

350

THE INDIAN PENAL CODE

[ CHAP. XI

Where a witness intentionally gives false evidence and it is doubtful whether
the false statement was made before the Magistrate or before the Sessions Judge,
held f the witness may be convicted under this section upon an alternative finding (g).

Where a prisoner was convicted on an alternative charge of having given false
evidence, such evidence, consisting of contradictory statements contained in one
deposition while he was under cross-examination and re-examination as a witness
in a judicial proceeding, and there was no finding as to which of the contradictory
statements was false, held that the conviction was good (h).

The prosecution must prove that both the contradictory statements were such
that a charge of intentionally giving false evidence might have been made in regard
to either of them or in regard to both of them or in the alternative (i).

Jenkins, C. J., held : “ We do not mean to say that in no case would it be
right to grant a sanction when a witness has told a false story before the committing
magistrate and a true story at the trial. There may be exceptional conditions in
which sanction should be granted ” (j), but it has been held that sanction should not
be given if the witnesses while making statements had unconsciously deviated from
truth (k), or if the statements are made in course of a lengthy cross-examination and
they are not wholly irreconcilable (1), especially when they are immediately
followed by explanations and corrections, (m). Where two Courts have taken
different views on a fact, it is impossible to see how a sanction for prosecution
for perjury in respect of a piece of evidence can be granted (n). A witness who
makes a statement in his examination-in-chief and declares that statement to be
false in cross-examination is not guilty of perjury (o).

In an earlier decision the Bombay High Court held that where a person makes
two contradictory statements in the course of a judicial proceeding, he might be
tried and convicted of giving false evidence on a single alternative charge, if there
was evidence to show which of the contradictory statements was false (p). In another
case, Jenkins, C. J., held : “ To convict an accused of giving false evidence, it is
necessary to show not only that he has made a statement which is false, but also
that he either knew or believed it to be false or did not believe it to be true " (q).
A Full Bench of the Bombay High Court has held that a statement recorded by a
magistrate under s. 164, Criminal Procedure Code, cannot be treated as evidence
in the trial or, in other words, it is not evidence in a stage of judicial proceeding
within the meaning of s. 193, Explanation 2, and further held that such statement
comes within the words ‘ evidence in any other case * in this section and may be

(g) Mussamat Zameran, (1866) 6 W. R. (Cr.) 65 (F. B.).

(h) Habibulla , (1884) 10 C. 937, following Mussammut Zameerun, (1866) 6 W. R.
(Cr.) 65 (F. B.) and Mahamed Humayoon Shah, (1874) 13 B. I., R. 324 (F. B.) : 21
W. R. (Cr.) 72.

(i) Haricharan Singh , (1900) 27 C. 455.

(i) Tripura Shanker Sarker, (1910) 37 C. 618 : 14 C. W. N. 767.

(k) Rakhal Chandra Shah V. Damodar Saha , (1909) 15 C. W. N. 169: 12

Cr. L. J. 11 : 9 I. C. 115.

(l) Baldeo Das Tansuq Das V. Mohammad Inamal Huq t 19 Cr. L. J. 234: 43
I. C. 826 (C) ; see Gajadhar, 16 A. L. J. 923 : (denial in cross-examination in a subse-
quent case).

(m) Narayan Nandan V. Palaniappa Nandan , (1917) M. W. N. 141 : 18
Cr. L. J. 43 ; in re. Nattava Paran Kissan, 37 M. 564 ; Ghulie, (1884) 7 A. 44, followed
in Tikam Lakhi , 7 S. L. R. 108 : 15 Cr. L. J. 488.

(n) Hiralal Mahton V. Lila M ah ton, (1921) 3 P. L. T. 60 : 22 Cr. L. T. 796.

(o) Hit Narayan Singh, 21 Cr. L. T. 953 : A. I. R. (1926) P. 517.

(p) Ganoji Pandjee. (1868) 5 Bom. H. C. R. 49.

(q) Banktaratn Lachmiram, (1904) 28 B. 533, (560), following the observations
of Holyrod, J., in Jackson, (1823) 1 Lewin C, C.270.

SEC. 193] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 351

linked with other evidence so that the two can be said to be a series of acts on
which an alternative charge can be framed under this section (r).

Proof of contradictory statements on oath, or solemn affirmation, without
evidence as to which of them is false, is sufficient to" justify a conviction upon an
alternative finding of the offence of giving false evidence (s).

The offence consists in intentionally making a false statement. The convic-
tion under this section is legal where the contradiction is in various stages of the
same deposition as also in different stages of the same proceedings. In both cases
every possible presumption should be made in favour of a reconciliation of the two
statements and every means should be taken to ascertain the true intention of the
witness, but when that intention is shown to be deliberately dishonest, the witness
cannot be protected from punishment (t). The Madras High Court has held that
the practice of charging a man with making two mutually contradictory statements
may be convenient, but it can only be successfully u«ed where the two statements
are necessarily and irreconcilably contradictory (u).

Duthoit, J., observed : “ R . v. Harris , (the leading English case on the sub-
ject, 5 Baron, and Aid. 926) has been followed in Mary Jackson s case, 1 Lewin,
C. C. 270 in R. v. Wheatland f, (8 C. and P. 238), in R. v. Hook , (D. and R. 606) and
in the other cases. As regards all these cases, I would remark generally that the law
of England as to the necessity of calling at least two witnesses to support an arraign-
ment of perjury, and of showing that the oath taken was material to the question
depending, is not law in India. As regards the remark of Holyrod, J., in Marry
Jacksons case was to the possibility of conflicting statements being made without
criminal intention, I would say that it is besides the point now at issue ; for unless
the two contradictory statements are so absolutely opposed as to exclude the possi-
bility of any hypothesis than that of the prisoner’s guilt, there can be no conviction
upon an alternative charge. (10C. 405) " (v). The Allahabad High Court has
held that the false statement in examination under s. 164, Criminal Procedure Code,
although it may not be evidence in a stage of judicial proceeding, made under certain
circumstances would fall within the second paragraph of s. 193 (w).

A man cannot be convicted of perjury for having acted rashly, or for having
failed to make reasonable inquiry with regard to the facts alleged by him to be true.
It must be found that he made some statement or statements which he knew to be
false, or which he believed to be false or which he did not believe to be true (x).
No person can be convicted under s. 193 except on proof that it is impossible that
the statements of the party accused made on oath can be true (y). The Patna High
Court has held that in a case under this section it is essential to show that the
accused gave false evidence or made a false statement intentionally (z).

Judicial proceeding : — See commentary to s. 192 under this heading.

The applicant went to the District Magistrate and made a statement before him
that a certain police-officer had beaten him, demanded a bribe from him and locked
him in the police howalat and added that he did not wish to make a complaint, as it

(r) Puroshattam Ishwar Amin, (1920) 45 B., 834 (F. B.) : 23 Bom. I.. R. I. : 22
Cr. L. J. 241 : 00 I. C. 593. overruling Magappa, (1893) 18 B. 377 (F. B.).

, (s) Palany Chetty, (1868) 4 M. H. C. R. 51.

(t) Palani , (1902) 26 M. 55, following the leading case of Ghttlei, 7 A. 44.

(u) In re. Parvatanene Kamayya, (1915) M. W. N. 34 : 16 Cr. L. J. 14 : 26 I. C.

318.

(v) Ghulet . (1884) 7 A. 44 (leading case on the subject).

(w) Khetn , (1899) 22 A. 115, where Bharma, (1886) 11 B. 702 was distinguished.

(x) Ramji Sajavarav, (1014) 36 A. 362.

(y) Padavath Singh, 5 Pat. L. J. 23 (32) : 54 I. C. 673.

(z) Gopinalh Panda, (1917) Pat. Supp. C. W. N. 267 : 18 Cr. L. J. 772 : 41
I. C. 148.

(a) Phuelel, (1912) 35 A. 102 : 11 A. L. J. 15 ; 14 Cr. L. J. 56 : 18 I. C. 344.

352

THE INDIAN PENAL CODE

[CHAP. XI

would not be possible to prove the complaint, but the magistrate made him take
oath and subsequently, the charge having been found baseless, the applicant was
convicted under Ss. 182 and 193. The Allahabad High Court held that the
applicant committed an offence under s. 182 or s. 211, but the conviction under
this section could not stand (a).

A Full Bench of the Bombay High Court has held that a statement recorded
by a Magistrate in the course of a police investigation under s. 164 of the Cr. P.
Code is not evidence in a stage of a judicial proceeding within the meaning of s. 193,
explanation 2 fb). A third class Magistrate not being empowered to commit for
trial cannot deal judicially with any stage of the proceedings in a case exclusively
triable by a Court of Sessions. If such Magistrate records a statement under
s. 164, Cr. P. Code, in a case of that nature, such statement would not be evidence
in a stage of judicial proceeding within the meaning of S'*. 191 and 193 (c)* The
Madras High Court has held that a person making a false statement before a Sab-
Registrar is punishable under s. 82 (a) of the Registration Act and s. 193 of the
Code (d).

The Sind Judicial Commissioners Court has held that a proceeding in which
the statement of a witness is recorded under s. 164, Cr. P. Code, is a stage of judicial
proceeding Under Explanation 2 to this section (e).

False affidavit : — The Lahore High Court has held that an accused making
a false affidavit in support of an application for transfer is liable to be prosecuted
under this section ( f ). The Allahabad High Court has held to the same effect in
Baddu Khans case (g). But the contrary view enunciated in Bindsheris case and
other cases (h) seems to be the correct view. A false statement in an affidavit by
an identifier is punishable under this section if the intention of the deponent was
that it should be used in a judicial proceeding (i).

Retracted statements -No statement made by a witness in a deposition
can be regarded as a completed statement until the deposition is finished and
corrected, if necessary, for, till then, it is open toihe*witness to qualify any state-
ment or correct any statement (j).

*

Where a witness makes a statement which is false and at once admits this, and
states what is the real truth, he should not be prosecuted for giving false evidence (k).

Intentionally gives false evidence in any stage of a judicial proceeding : —

Scotland, C. J., observes : " The framers of the Code have omitted
* material * in Ss. 191 and 193 a* to the offence of giving false evidence, though they
insert it in s. 192 as to the offence of fabricating false evidence. We must therefore
presume that they did not consider it essential to allege in an indictment for giving
false evidence that the prisoner swore that which was material to the result of the

(b) Puroshottam Ishwar Amin, (1920) 45 B. 834 : 23 Bom. L. R. I : 22 Cr. L. J.
241 : 60 I. C. 593 (F. B.).

(c) Shetappa Satappa Mudenavar , (1912) 14 Bom. L. R. 753 : 13 Cr. L. J. 709 :
16 I. C. 517, following Bharona, 11 B. 702 (F. B.).

(d) In re. N arayanaswami Aiyar , (1912) M. W. N. 1107 : 12 M. L. J. 367 : 14
Cr. L. J. 102 : 18 I. C. 662.

(e) Andal and Kkamiso, (1911) 5 S. L. R. 174 : 13 Cr. L. J. 33 : 13 I. C. 273.

(f) Abdul Washi, (1925) 26 Cr. L. J. 1369 : 89 I. C. 457 : A. I. R. (1926) L. 12 ;
Gulam Muhammed, (1922) 3 L. 46 : 23 Cr. L. J. 399 : A. J. R. 113.

(g) A. I. R. (1928) A. 182.

(h) 28 A. 331 : 3 A. L. J. 98, following Barkat, (1897) 19 A. 200 ; (1889)
12 M. 451 ; Bhasyam Chetti , (1896) 19 M. 209. Ifari Gope V. Mohanto Manmohan
Das , 41927) 6 P. 760.

“ (i) Kari Gope V. Mahante Manamohan Das, (1927) 6 P. 760.

(j) Maharaj Prasad, (1923) 21 A. L. J. 673 : 24 Cr. L. J. 779 : 74 I. C. 443 :
A. I. R. (1924) A. 83.

SEC, 194] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 353

proceeding. For the giving of false evidence, to come within s. J93, must

be an intentional giving ; and in deciding whether or not it was intentional, the
Jury would have to consider whether or not the subject-matter of the statement
were material to the result of the proceeding inasmuch as if that subject-matter
were wholly immaterial they might well attribute the statement to indifference or
carelessness on the part of the prisoner " (1),

‘gives false evidence*: — The words * gives false evidence ’ in s. 193 are
used in the same sense as the same words in s. 191 (l l ).

The essential ingredient of an offence under this section is the intention : — Where
the accused made contradictory statements in cross-examination, held that the
accused might have made those statements under the pressure of a lengthy cross-
examination and as there was no motive found he was not guilty (m).

The primary consideration for prosecution for perjury is that false statement
should be made ‘intentionally.’ Where there is no such finding to that effect and
it does not appear to be in evidence that there was any such intention, the conviction
cannot be upheld (n).

It must be found that the accused made some statement or statements which he
knew to be false or which he did not believe to be true (o).

Deposition to be considered not piecemeal but as a whole : — Where
the conviction is based on merely the statements contained in the charge without
examining the whole of the depositions, held , the conviction is an error of law (p).
The making of any number of false statements in the same deposition is one aggre-
gate case of giving false evidence, and that charges of false evidence cannot be
multiplied according to the number of false statements contained in the deposi-
tions (q), but the Bombay High Court in Sejmal Poonamchand' s case (r) has held
that a person making more false statements than one in the course of a single deposi-
tion can be convicted separately for each such statement.

Materiality has bearing upon sentence If the statement made is
designedly false, the accused is liable irrespective of the fact whether the statement
had a material bearing or not upon the matter under enquiry before the Court. The
materiality or immateriality can only have a bearing upon the sentence to be
passed (s).

194. Whoever gives or fabricates false evidence, intending
thereby to cause, or knowing it to be likely
Giving or fabricating that J le W JJJ thereby cause, any person to be

tent to procure convic- convicted or an ofrence which is capital [by
tion of capital offence; the law of British India or England), shall

be punished with transportation for life or
with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine ;

(k) Dasondha Singh , (1911) P. L. R. No. 230 of 1911 : P. W. R. No. 34 of 1911
(Cr) : 12 Cr. X*. J. 406 : 111. C. 589.

(l) Aidrus Sahib, (1862) 1 M. H. C. R. 38.

(h) Padam Singh, (1929) 28 A. L. J. 955.

S Munni Buksh, (1898) 3 C. W. N. 81.

Azibulla Sarcar v. Udoy Santhal, (1908) 13 C.* W. N. 422 (424).

(o) Muhammad, (1914) 30 A. 302 (304).

(p) Per Jenkins, J., in Bankataram Lac hm tram, (1914) 28 B. 533.

(q) A non, (1871) 0 M. H. C. R, App. 27 : 1 Weir 100, followed in Rahhal Chandra
Saha, (1909) 30 C. 808 (814) : 13 C. W. N. 942 (940).

(r) (1920) 51 B. 311.

(s) Raja Ram, A. I. R. (1929) All. 930 : 28 A. L. J. 251,

29

354

THE INDIAN PENAL CODE

[CHAP. XI

and if an innocent person be convicted and executed in conse-
if innocent person be qwnct of such false evidence, the i person who
thereby convicted and gives such false evidence, shall be punished
^ ccuted ’ either with death or the punishment herein-

before described.

This section deals with an aggravated form of the same offence as is punishable
under the last section. This section is divided into two parts. The first part pro-
vides a sentence of transportation for life or rigorous imprisonment when the per-
jury results in the conviction of a person of capital crime, the second part provides
for capital punishment when an innocent person has been executed as a result of
the penury.

Legislative changes : — The words * by the law of British India or England 9
were inserted for the words 9 by this Code * by the Indian Railways Act (IX
of 1890), s. 149.

Procedure s— Non-cognizable—Warrant—Bailable—Not compoundable —

Triable by Court of Session.

Complaint : — Complaint in writing of the Court before which the offeree
is alleged to have been committed or of some other Court to which such Court is
subordinate is necessary (t).

Charge : — I (name and office of Magistrate , etc.) hereby charge you { name
of accused) as follows : —

That you, on or about the day of , at ,

gave false evidence (or fabricated false evidence) intending thereby to cause (or

knowing it to be likely that you will thereby cause) — * to be convicted

of the offence cf which by the law of India or England is capital, and

thereby committed an offence punishable under s. 194 of the Indian Penal Code
and within the cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

There can be no offence of the abetment of giving false evidence unless the
person charged with abetment intended not only that the statement should be made,
but intended that the statement should be made falsely.

It is not necessary under this section that the false evidence which is given
should be the evidence given in a Court of Justice fu).

9 causing a circumstance to exist * A person who brings before a Court
a witness whom he has tutored to tell a false story concerning the case before it,
may properly be convicted under this section as he did cause a circumstance to
exist (v).

195. Whoever gives or fabricates false evidence intending
thereby to cause, or knowing it to be likely
fa£eWdence a within* that thereby cause, any person to be

tent to procure convic- convicted of an offence which (by the law

able °with^ en transporta- ° f British India or England) is not capital,
tion or imprisonment. but punishable with transportation tor life,
or imprisonment for* a term of seven years
or upwards, shall be punished as a person convicted of that offence
> would be liable to be punished.

(t) S. 105 (1) (6), Cr. P. Code. „ "

(u) Nimchand Mookerjee t (1873) 20 W. R. (Cr.) 41.

(v) Suranath Bhaduri , (1927) 50 A. 366 : 25 A* L. J. 1077, following Cheda Lal t
49 A. 351 and not following Durga Prosad , (1915) 30 I. C. 651*

SEC. 196 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 385

Illustration.

A gives false evidence before a Court of Justice, intending thereby to cause Z to
be convicted of a dacoity. The punishment of dacoity is transportation for life, or
rigorous imprisonment for a term which may extend to ten years, with or without
fine. A , therefore, is liable to such transportation or imprisonment, with or without
fine.

This section deals with the same offence as under the last section with this
modification that there the perjury results in a conviction of an offence which is
not capital but punishable with transportation for life or imprisonment for a term
of seven years.

Legislative changes : — The words ‘ by the law of British India or England *
were inserted for the words ‘ by this Code * by the Indian Railways Act, 1890
(IX of 1890), s. 149.

Procedure : — Non-cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Complaint : — No Court shall take cognizance of an offence under this sec-
tion except on the complaint in writing of the Court before which the offence is
alleged^ to have been committed or of some other Court to which such Court is
subordinate (w).

Charge : — The same as for s. 194, substituting the words ‘ which by the law
of British India or England is not capital but punishable with transportation for
life or imprisonment for a term of seven years or upwards * in place of * which by
the law of British India or England is capital ' in s. 194.

Punishment : — Where a man burns his own house, and charges another
with the offence of doing so, he should be convicted and sentenced under s. 21 1
and not under this section (x).

The Allahabad High Court has held that photographing persons charged with
the offence of dacoity by itself does not amount to attempting the offence of fabri-
cating false evidence within the meaning of this section (y).

Where it appeared from the police papers that the applicants * got at * one
Mussamat Putia and persuaded her to make a statement to the effect that she had
seen certain persons whom she mentioned by name as having committed dacoity
on her premises, held , this was not sufficient to convict the applicants for an offence
under this section (z). Where the accused, a judgment-debtor in execution pro-
ceedings, filed a forged receipt for Rs. 530 before the execution Court, purporting
to have been executed in his favour by the complainant decree-holder and was
convicted under this section, held, he should have been convicted under 8. 471
and tried in the Sessions Court (a).

196. Whoever corruptly uses or attempts to use as true or
genuine evidence any evidence which he
to U ^ n f 6 aS dpnCeknOWn knows to be false or fabricated, shall be
punished in the same manner as if he gave
or fabricated false evidence.

Procedure : — Non-cognizable — Warrant — Bailable or non-baiiable accord-
ing as the offence of giving such evidence is bailable or not— Triable by Court of
Session— Presidency Magistrals or Magistrate of the first class.

<w) S. 105 (1) ( b ) of the Code of Criminal Procedure of 1923.

(x) Bhugwan, (1867) 8 W. ft. (Cr.) 65.

(v) Gulab Singh, (1916) 14 A. L. J. 6P8 : 17 Cr. L. J. 431 : 35 I. C. 991.

(z) Durga PrasaW, (1916) 18 Cr. L. J.*867 : 30 I. C. 661 (AIL), not followed in
Suranath Bhaduri, (1927) 60 A. 365:25 A. L. J. 1077.

. (a) Hara Mohan Das, (1926) 44 C. I.. J. 113, following Khirode Chandra Majttm-
(tar, (1880) 5C. 717.

356

THE INDIAN PENAL CODE

[CHAP. XI

Complaint : — No Court shall take cognizance of an offence under this section
except on the complaint in writing of the Court before which the offence is alleged
to have been committed or of some other Court to which such Court is sub-
ordinate (b).

Charge ? — 'Using* and 'attempting to use false evidence are two distinct
and separate offences and should be charged in separate heads of the charge (c).

Form of charge 1 (name and office of Magistrate, etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of ,

at # corruptly used (or attempted to use) ; , as true or

genuine Evidence, the evidence, to wit which you knew to be false

(or fabricated) and as such punishable under s. 193 (or s. 194 or s. 195) of the Indian
Penal Code, and thereby committed an offence punishable under s. 195 of the
Indian Penal Code and within my cognizance (or the cognizance of the Court of
Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

The prosecution must prove —

(1) That the evidence was false or fabricated.

(2) That the accused corruptly used or attempted to use such false or fabri-

cated evidence as true or genuine evidence.

(3) That the accused had a guilty knowledge, /.e., he knew the evidence to be

false or fabricated at the time of using such evidence.

Punishment Deterrent punishment is necessary for offences under this
section and s. 465, (d).

Scope t— This section must be read with Ss. 191 and 192, and can only apply
to the use of evidence which was false evidence within the meaning of s. 191 or
fabricated evidence within the definition laid down in s. 192. The corrupt use of
any fabricated evidence is an offence under this section (e). To constitute an
offence undttr this section there must be some evidence in existence which the party
is either using or attempting to use (f).

Corruptly using evidence known to be false Where a prisoner produced
as evidence an account book, one page of which had been fraudulently abstracted,
and another substituted for it, held that he was not guilty of the offence of attempt-
ing to use, as genuine, fabricated evidence, unless he knew of the forgery and
intended to use the forged evidence for the purpose of affecting the decision on the
point at issue when the book was tendered (g).

The Bombay High Court has held that the corrupt use of fabricated evidence
by an accused person is an offence under this section and held further that it is
difficult to accept the proposition that as a matter of law an accused person can
never corruptly use as genuine fabricated evidence so long as he uses it for his
defence (h). An accused person cannot be convicted under this section when
he did not deliberately use the documents as evidence but she disclosed the docu-

(b) S. 195 (1) (6) of the Code of Criminal Procedure.

(c) Bhugwan, (1867) 2 W. R. (Cr.) 9.

(d) Jorabhai, /J926) 5" B. 783 : 28 Bom. L. R. 1051 : 27 Cr. L. J. 1173 : A. 1. R.
(1926) B. 555.

(e) Lukshmajx , (1884) 7 M. 289 (290).

(f) Inre.Kalari Vitanna, (1910) 17-Cr. L. J/38M: 35 I. jf 830 (Mad.).

(g) Muddosuddan Shaw, (1867) 7 W. R. (Cr.) 23.

(h) Rama Nana , (1921) 46 B. 317 : 23 Bom. L. R. 987 : 23 Cr. L. T. 23 : 64
I. C. 503 : A. I. R. (1922) Bom. 99.

SEC. 197] OF FAT.SK evidence and offences against public justice 357

merits in compliance with an order of the Court and produced them when called
upon (i).

Corruptly : — The word ' corruptly ’ which does not occur in the preceding
sections, is probably used here to denote that those whose duty it is not to judge
of the credibility of evidence, but to submit it for the consideration of judicial and
other functionaries on behalf of their clients, do not incur the penalties of using
false evidence (j).

The word * corruptly ’ is intended to connote a motive not necessarily con-
nected with the passing of money as an inducement to a person, and an intention
to procure a false conviction is a corrupt intention (k).

A person, who uses in Court false documents as true, besides swearing to their
authenticity, may be convicted under this section (1).

Where the offence alleged against an accused was that he in a civil suit filed
as genuine a document which he knew to be a forged document and the accused
was convicted under this section, held that the case being one cognizable under
s. 476, infra , the Magistrate had no jurisdiction to convict under this section but
he should have committed the prisoner for trial under s. 471 (m).

Evidence fabricated out of British India is not * fabricated * in the sense of
s. 1% and a person who uses such evidence, however corruptly, is not subject to
punishment for it. He in fact commits no offence (n).

Where a letter was concocted in order that it might appear in evidence in any
proceeding, held that it was fabricated evidence and the corrupt use of any fabri-
cated evidence is an offence under this section (o).

A proceeding before an Additional Income-tax Officer, on the production of
account books, pursuant to a notice under s. 23 (2) of the Income-tax Act is a
‘ judicial proceeding ’ only for the purposes of Ss. 193 and 228, but not of s. 196,
I. P. C. Where the petitioner who was a member of a firm produced certain false
account books of the firm, before such officer, on requisition, it was held that this
conviction under this section was bad in law (p).

197 . Whoever issues or signs any certificate required by
. . . law to be given or signed, or relating to any

fais^ certificate. Slgn,ng fact of which such certificate is by law

admissible in evidence, knowing or believing
that such certificate is false in any material point, shall be punish-
ed in the same manner as if he gave false evidence.

This section punishes ‘ issuing or signing of a false certificate ’ whereas the
next section punishes using as true a certificate known to be false.

Scope : — " A certificate may no doubt be used as synonymous with ‘ certi-
fication ’ [see Seadoollah v. Kalee Churn, (1869) 12 W. R. 358] but that is clearly
not its meaning in s. Ss. 197 and 198, I. P. C Turning then to Ss. 197

(i) Ma Ain Lon v. Ma On Pu, (1924) 3 R. 36, following Assistant Sessions Judge
v. Rantamai, (1913) 36 M. 387.

(j) Morgan and Macpherson, ‘Penal Code’ p. 164.

(k) Fatal Ahmed, (1913) P. L R. No. 139 of 1014 : P. R. No. 1 of 1914 (Cr.) : 15
Cr. L. J. 344 : 23 I C. 696.

(l) Oodun Lall (1866) 3 W. R. (Cr.) 17.

(m) Kherode Chuhder Motutnder, (1880) 6 C. 717.

Moorga Chetty, (1881) 8 B. 338 (F. B.) at p. 369.

Lakshmaji, (1884) 7 M. 289,(290).

Lai Mohan Poddar, (1927) 66 C. 423 ; 48 C. L. J. 660 ; 31 C. W. N. 996.

(n)

(o)
(P)

368

THE INDIAN PENAL CODE

[CHAP. XI

andM98 what do we find? The certificate in respect of which a man may be
punished if it is false to his knowledge or belief must be either (I) that is re-
quired by law to be given or signed or (2) that relates to any fact of which such
certificate is by law admissible in evidence. One or other of these requirements
must be fulfilled before a man can be dealt with under these sections." (q).

# Procedure : — Non-cognizable— Warrant — Bailable — Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Abetment r— A peadah of a collectorate who knowingly and falsely informed
a nazir that he had served the summons and thereby induced the nazir to rectify
service was^ held guilty of abetment by the Sessions Judge but the Calcutta High
Court acquitted him as he was an utter stranger to the village and got the receipt
signed by a person who styled himself as a chowkidar (r).

Charge : I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at — ,

issued (or signed) a certificate required by law to be given (or signed or relating to
any fact of which such certificate is by law admissible in evidence) knowing or believ-
ing that such certificate is false in any material point, to wit , and thereby

committed an offence punishable under s. 197 of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried on the said charge.

* issues or signs a false certificate 9 ; — Where two accused persons were
convicted under Ss. 197 and 198 and Ss. 197 and 109 respectively, the charge being
that one of the accused persons, purporting to represent the decreerholder in a certain
suit, signed and filed a petition in the Court of the Subordinate Judge stating falsely
that the other accused who was the judgment-debtor had paid off the decretal amount
to the decree-holder through him, her Am-mukteer, held $ that the accused were
not guilty as there is no provision of the law which requires the decree-holder to
certify payment by 4 issuing or signing a certificate ’ (s).

The Bengal Land Registration Act does not require a certificate to be signed or
given ; so a person, who had his name registered under the said Act on the allegation
that the real person is dead, is not liable to be prosecuted under this section (t).

Certificate s— The certificate contemplated by this section is a certificate
which is required by law to be given or signed for the purpose of being used in
evidence in the course of administration of justice (u).

t$8. Whoever corruptly uses or attempts to use any such
Using as true a cer- certificate as a true certificate, knowing the
tmeate known to be same to be false in any material point, shall
* e ‘ be punished in the same manner as if he gav$

false evidence.

Scope J — See commentary to s. 197 under the same heading.

t Procedure s — Non-cognizable — Warrant — Bailable — Not compoundable—

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

(q) Mahabir Thakur, (1910) 20 C. W. N. 520 (521) : 23 C. L. J. 428 (420, 427) :
17 Cr. L. J. 140 i 33 1. C. 316.

(r) Hisamuddeen, (1865) 3 \V. R. (Cr.) 37.

(s) Mahabir Thakur, (1916) 20 C. W. N. 520 : 23 C. L. J. 423 : 17 Cr. L. J. 140 :
33 I* C. 316.

(t) Balkrishna Gir, (1917) 3 Pat. L. W. 2QJ : 18 Cr. L. J. 978 : 42 I. C. 594.

(u) Birendra Nath Chatterjee v. Umanand Mukherjee, (1915) 30 C. W. N. 120 :

42 C. L. J. 557 :A.l. R. (1926) C. 58. '

Sfcc. 199] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 359

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follow* : —

That you, on or about the day of , at ,

corruptly used (or attempted to use) as true a certificate (required by law to be given
and signed) or (relating to a fact of which such certificate is by law admissible in
evidence) namely, a certificate ( describe certificate) knowing the same to be false

in a materia] point, to wit and you thereby committed an offence punishable

under s. 198 of the Indian Penal Code and within my cognizance (or cognizance of
the Court of Session).

And I hereby direct that you be tried (by the said Court) on the said* charge.

False statement made
in declaration which is
by law receivable
evidence.

as

199 . Whoever, in any declaration made or subscribed by
him, which declaration any Court of Justice,
or any public servant or other person, is
bound or authorized by law to receive as
evidence of any fact, makes any statement
which is false, and which he either knows or believes tp be false
or does not believe to be true, touching any point material to the
object for which the declaration is made or used, shall be punish-
ed in the same manner as if ha gave false evidence.

Court of Justice — s. 20. Public Servant — s. 21.

Procedure : — Non-cognizabJe— Warrant— Bailable — Not compoundable—

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Onus — is on the prosecution to prove that the statement is false and not on
the accused to prove it to be true (v).

Complaint : — No Court shall take cognizance of an offence punishable
under this section when such offence is alleged to have been committed in or in
relation to any proceeding in any Court, except on the complaint in writing of such
court or of some other Court to which such Court is subordinate (w).

Charge An accused is entitled to know the exact words which are alleged to
have been used by him and which are sought to be made the subject of perjury (x).

Form of charge : — I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at ,

made (or subscribed) a declaration which a Court of Justice to wit (or

any public servant or other person) was bound (or authorised by law) to receive
as evidence of a fact, and therein made a statement which is false (here set out two
false statements) and which you knew (or believed) to be false or did not believe to
be true, touching a point material to the ofy'ect for which the declaration was made
(or used) and thereby committed an offence punishable under s. 199 of the Indian
Penal Code and within my cognizance (or Cognizance of the Court of Session or
the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Scope : — This section is wider than s. 192 and applies to every kind of affi-
davit which the Court is bound or authorised to receive (y).

(v) BadduKhan , A. I. R. (1928) A. 183.

(w) S. 195 (1) (6) of the Code of Criminal Procedure.

(x) Abdul Wahid Khan v. Abdulla Khan , (1923) 21 A. L. J. 211.

(y) Rajappa Ramappa Kamal, 11915) 17 Bom. L. R. 222 : 16 Cr. L. J. 309 : 28
I. C. 045; Kari Oops v. Mohanto Manmohan Das , (1927) 0 P. 760 (7 62).

360

THE INDIAN PENAL CODE

[CHAP. XI

False statement in declaration Where a District Magistrate ordered the
prosecution of an accused for perjury merely on the basis of an inaccurate explana-
tion, sent by a Magistrate with regard to an affidavit by the accused asking for a
transfer of his case to some other Court, held that the accused is guilty (z). A
statement made by a witness in a criminal trial not upon oath or solemn affirma-
tion is not a declaration within the meaning of this section (a). In the Bengal
Tenancy Act there is no provision authorising a District Judge to order the appli-
cant to deliver papers belonging to the estate of which a common manager has been
appointed and there being no provision of the law, or any rule having the force of
law, permitting the use of affidavits in such proceedings or authorising the adminis-
tration of an oath to persons who profess to file affidavits in such proceedings,
held that a person giving false evidence in such proceedings cannot be convicted
under s. 193 or s. 199 fb). This section does not apply to applications for execution
containing false averments (c). A petition not bearing the signature of the accused
and therefore not a delcaration made or subscribed by him, cannot be made the
foundation of a charge or conviction under this section, but a deposition on oath
supporting such a petition, if false, justifies a charge under s. 193 of the Code (d).

This section subjects any person who makes a false declaration, which decla-
ration may be used as evidence of the matters stated in it, to the penalties for per-
jury, that is to say, renders him liable to rigorous imprisonment for three years (e).

This section is very strict in it» terms and deals with a false declaration only
when the declaration is one which a Court of Justice or other person is bound or
authorised by law to receive as evidence. A false declaration to a Mamlatdar
in the hope that he would obtain from the Mamlatdar a certificate of solvency for the
purpose of securing a licence from the Abkari Officials is not such a declaration as
is punishable under this section (f).

This section contemplates that a statement, in order to come within the pur-
view of the section, must be one which is either false to the defendant’s knowledge
or which he ought to have known to be false or which he could not have believed
to be true (g).

False statement contained in a written statement r— A defendant cannot
be convicted under this section simply on account of a statement made by him in a
written statement (h), but where the accused was prosecuted for having made a
false declaration with respect to a written statement filed on the 18th July, 1919, in
a certain suit in which he denied execution of a certain hand-note which he ad-
mitted in a subsequent criminal proceedings initiated on the 6th November, held
that the ends of justice did not require a prosecution of the petitioner in respect
of his written statement after this lapse of time (i).

Declaration must be admissible A declaration, before it can be made
the foundation of a prosecution under this section, must be one which is admissi-

(z) Abdul Wahid Khan v. Abdulla Khan, (] 923) 21 A. L. J. 21 1 .

(a) Vedamuttu, (1868) 4 M. H. C. R. 186.

(b) Abdul Majid v. Krishna Lai , (1893) 20 C. 724 ; Iswar Chandra Guho t (1887)
|4 C. 663.

(c) Bapuji Dayaram , (1886) 10 B. 288.

(d) Ram Rewag , (1880) 7 C. L. R. 636.

(e) Chandi Pershad V. Abdur Rahaman , (1894) 22 C. 131.

(f) Rajappa Ramappa Kalal t (1916) 17 Bom. L. R. 222 ; 16 Cr. L. J.309; 28
I. C. 646.

(g) Aiyaswami Aiyar V. Aiyaswamy Aiyar, (1916) 33 M. L. I. 646 : 22 M. L.T.
290: 6 L. W. 211 : 18 Cr. L. J. 636 : 39 I. C. 1004.

(h) Janhi Rai, (1927) 49 A. 482

(i) Ttailohya Nath Banerji v.

railohya Nath Banerji v. Radharanjanf (1921) 26 C. W. N. 886.

SECS. 200-201 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUB. JUSTICE 361

ble in evidence, and which the Court, before which it is hied, is bound or authorised
by law to receive in evidence (j).

A Mahomedan Registrar of Marriages is bound or authorised to receive the
statements of persons in evidence. This section does not apply but s. 466, infra ,
is applicable (k).

200. Whoever corruptly uses or attempts to use as true any
Using as true such such declaration, knowing the same to be
declaration knowing it false in any material point, shall be punished
to be false. j n th e same manner as if he gave false evi-

dence.

Explanation . — A declaration which is inadmissible merely
upon the ground of some informality, is a declaration within the
meaning of Ss. 199 and 200.

Procedure : — Non-cognizable — Warrant Bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Complaint — by the Court is essential to a prosecution under this section.

Charge — same as the form set out under s. 198, substituting * declaration 9
in place of ‘ certificate * in s. 198.

For commentary, see Ss. 196 to 199, supra .

201. Whoever, knowing or having reason to believe that
an offence has been committed, causes any
evidence of the commission of that offence to
or giving false informa- disappear, with the intention or screening the
offender — 0 screen offender from legal punishment, or with
that intention gives any information respect-
ing the offence which he knows or believes to be false.

shall, if the offence which he knows or believes to have been
.. , „ „„ . committed is punishable with death, be

punished with imprisonment ot either des-
cription for a term which may extend to seven years, and shall
also be liable to fine ;

and if the offence is punishable with transportation for life,
or with imprisonment which may extend to
if punishable with trans- ten years, snail be punished with imprison-
por a ion . ment of either description for a term which

may extend to three years, and shall also be liable to fine ;

and if the offence is punishable with imprisonment for any
if punishable with less term not extending to ten years, shall be
than ten years’ impri- punished with imprisonment of the descrip-
>ntne ” tion provided for the offence, for a term which

... 0) Ram Parshad, (1012) 3 5 A. 08 : 10 A. L. J. 462 ; 13 Cr. L. J. 7 69:17 1. C.
Jnr ™, ere J . S i Uf c ***dra fate, (1887) 14 C. 888, M/J/a/ta' V. Afrstea/a/, (/M/

, 2 nd Ckandi Parshad v. Abdur Rahman, (1894) 22 C. 131 were followed.

W Vasin Shaikh, (1*04) 9 C. W. N. 60 . 4 Cr. L. J. 8,

362

THE INDIAN PENAL CODE

[CHAP. XI

may extend to one-fourth part of the longest term of the imprison-
ment provided for the offence, or with fine, or with both.

Illustration.

A t knowing that B has murdered 2, assists B to hide the body with the intention
of screening B from punishment. A is liable to imprisonment of either description
for seven years, and also to fine.

This section applies merely to the person who screens the principal or actual
offender and does not apply to the principal or actual offender. The marginal note
of this section is a correct abbreviation of the section (1).

Procedure Non-Cognizable — Warrant — Bailable — Not compoundable —
when the offence is punishable with death — Triable by Court of Session, when
the offence is punishable with transportation for life or imprisonment for ten years
—by Court of Session or Presidency Magistrate or Magistrate of the first class,
when the offence is punishable with less than 10 years ’ imprsionment — by the Court
by which the offence is triable.

The pfcsecution must prove (I ) that AB was murdered and that this was on
date ;

(2) that the prisoner on date (some time after the date of occur-

rence) gave information respecting this offence;

(3) that such information was false and known by him to be so ;

(4) that he knew of the commission of murder ;

(5) that his intention was to screen the murderer (m).

In order to justify a conviction under this section it is necessary that an offence
for which some person has been convicted or is criminally responsible should have
been committed (n). The Allahabad High Court in a later decision has held : —
In order to hold that an offence under this section had been committed, it is neces-
sary to find that (1) the accused knowing or having reason to believe that an offence
has been committed, (2) caused any evidence of the commission of that offence to
disappear, (3) with the intention of screening the offender from legal punishment (o).
It is not necessary to find that the principal offender is some known person (p).
The Madras High Court has held that Ss. 201 to 203 are applicable to a person
who is guilty of the main offence, though in practice a Court will not convict an
accused both of the main offence and under these sections (q). Their Lordships
of the Judicial Committee in Begus case (r) has held that the accused, could be
con\icted under this section though there was no general charge under this section.
Where in a charge under s. 302, the evidence established that some of the
accused made away with the evidence of crime by assisting in taking away the body,

(l) Torap Ali, 22 C. 638 distinguished in Limbaya, (1895) Hat. Unrep. Cr. C,
799 and not followed in Tepinessa, (1918) 46 C. 427 : 19 Cr. L. J. 903 : 47 I. C. 276.

(m) Subramanya Pillai , (1866) 3 M. H. C. R. 251.

(n) Abdul Kadir, (1881) 3 A. 279 (F. B.) followed in Adho, (1924) 26 Cr. L. J.
997 : 86 C. 961 : A. I. R. (1925) Sindh 257.

(o) Autar, (1924) 47 A. 309 : 23 A. L. J. 25.

ip) Rupnarain Kurmi, (1931) 10 P. 140, and Tepinessa , (1918) 46 C. 427, followed
in Venkata Amma, (1932) 56 M. 63.

(q) Chinna Gangeppe, (1930) 54 M. 68 : 59 M. L. J. 677 : A. I. R. (1930) M.

870.

(r) (1924) 62 I. A. 191 : 30 C. W. N. 581 : 41 C. L. J. 437 ; 6 L. 226 ; (1926)
M. W. N. 418, followed in Rannuw , (1926) 7 L. 84 : A. I. R. (1926) Lah. 88, and Umed
Shaikh, (1926) 30 C. W. N. 8)6; Maladin , (1929) 5 Luck. 255, but distinguished in
Dibahar Bene v. SaktidharKaviraj, (1927) 31 C. W. N. 527, see also Ditta, (1928) 10
L. 218 : A. I. R. (1928) L. 906.

SEC. 201 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 363

knowing that a murder had been committed, held that they could be convicted
under this section. It has been held in Durlav Nama^udras case (s) that in a trial
of charges under Ss. 202 and 201 1 , there is no legal bar to an acquittal under s. 302
and conviction under this section (s).

Charge The Calcutta High Court has held that it is unsatisfactory to have
an alternative indictment— one court charging the accused as principal (of murder)
and other as accessory after the fact (under this section). Sumanta Dhupi s case (t)
can no longer be treated as good law. But the Bombay High Court has held that a
person can be charged with the offence of murder and in the alternative with the
offence of causing evidence to disappear with the intention of screening the
offender (u).

Misjoinder of charges ; — In Surendra Lai Dass case (v) it was found that
so far as the offence of rioting was concerned, that must have ended with the
serious injury inflicted upon B , and it was held that the offences that were com-
mitted in the course of the riot had all been completed before the offence under
s. 201 and as such there was a misjoinder of charges.

Form of charge : — I ( name and office of Magistrate, etc.) hereby charge you
(name of accused) as follows

That you, on or about the day of , at ,

knowing (or having reason to believe) that certain offence, to wit ,

punishable with— , has been committed, did cause certain evidence of the

said offence to disappear, to wit , (or knowingly gave false informa-
tion, to wit ), with the intention of screening the said ( name of the

offender screened) from legal punishment, and thereby committed an offence
punishable under s. 201 of the Indian Penal Code, and within my cognizance (or
cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Separate sentence A separate sentence under this section along with a
conviction of the accused of murder is illegal (w).

Scope This section is an attempt to define the position known in England
as that of an accessory after the fact. It is settled law that a principal cannot

be convicted as an accessory after the fact where it is impossible to

say definitely, however strongly it might be suspected, that an accused was guilty
of murder, mere suspicion is no bar to a conviction under this section” (x). The
essence of this section is that the accused caused the evidence of the commission
of the offence to disappear with the intention of screening the offender from legal
punishment (y).

This section contemplates concealment or destruction of evidence of a crime.
The person who is concerned as a principal cannot be convicted of the secondary
offence of concealing evidence of the crime (z).

This section does not apply to a case where the probable or possible offender
makes statements exculpating himself by inculpating another (a). This case and

M

(t)

(U)

(V)

(1931) 36 C. W. N. 373.

Sumanta Dhupi, (1916) 20 C. W. N. 166 : 23 C. L. J. 333
Hanmappa Rudrappa, (1923) 25 Bom. L. R. 231 .

, , (1924) 40 C. L. J. 559.

(w) Nalli Narasigadu, (1915) 16 Cr. L. J. 583 : 30 I. C. 135 (Mad.).

Sumanta Dhupi , (1915) 20 C. W. N. 166 (167, 168) : 23 C. L. J. 333 (335,
336) : 17 Cr. L. J. 4 : 32 I. C. 132, following Limbya , (1895) Rat. Unrep. Cr. C. 799.

(y) ML Bakthawari, A. I. R. (1930) A. 25 ; Rnpnarain Kurmi, (1931) 10 P. 140.

(z) Lalli , (1885) 7 A. 749; Kasinath Dinakcr, (1871) 8 Bom. H. C. R. (Cr. C.)
126 ; Ghanasham Ram Chandra Mantri , (1906) 8 Bom. L. R. 538; Dungar , (1886)
8 A. 252 ; Ram Khilwan , (1906) 28 A. 705.

(a) Behala Bibi, (1881) 6 C. 789 ; 8C. L.R.207.

364

THE INDIAN PENAL CODE

[CHAP. XI

the case of Torap Alt (22 C. 638) were distinguished in a recent decision of the
Calcutta High Court where |t was held that the wife who gave false information
to the police, accusing another person of an offence of murder of her. husband in
order to screen the real offender, could in law be convicted under this section as
also under s, 203 (b).

The Allahabad High Court has held that a person removing traces of crime
can be convicted under this section even if he is himself the actual offender (c).

* knowing or having reason to believe that an offence has been com*
mitted 9 : — A Full Bench decision of the Allahabad High Court has held that it
is necessary for a conviction under this section that an offence tor which some per*
son has been convicted or is criminally responsible should have been committed (d).

‘ or having any reason to believe ' : — Where a person is charged under this
section, the issue to be tried is not whether such alleged offenders were in fact
guilty or not, but merely the belief and intention of the prisoner in respect to their
guilt (e).

The word * believe ’ is much stronger than the word 4 suspect ' (f).

Offence — see ‘ Explanation 'to s. 203. The removal or concealment of
the body of a person not proved to have been murdered is not an offence under
this section (g).

* causes any evidence of a commission of that offence to disappear
with the intention of screening the offender from legal punishment 9 : —

Under this section, the intention must be to screen the offender (h). This section
contemplates a knowledge or a reasonable belief that an offence has been committed
and an intention to screen the offender (i).

The removal of the corpse of a murdered man from the place of murder to another
place is not causing the disappearance of some evidence of commission of the mur-
der and thus does not come under this section which requires causing the dis-
appearance of some evidence of the commission of an offence (j).

' any evidence of the commission of that offence ' : — It is an essential ingredient
of this section that an offence should have been committed (k). The Bombay
High Court has held that the expression * any evidence of the commission of that
offence ' clearly refers, not to evidence in the extensive sense in which that word
is used in the Indian Evidence Act, but to evidence in its primary sense, as mean*
ing anything that is likely to make the crime evident such as the existence of a
wounded corpse or similar material objects indicating that an offence had been
committed (1).

(b) Teprinessa, (1918) 46 C. 427 : 19 Cr. L. J. 903: 47 I. C. 276, following
Sumanta Dhupi, (1916) 20 C. W. N. 166.

(c) Hart Piari , (1926) 49 A. 67 : 42 A. L. J. 968 : 27 Cr. L. J. 1068 : A. I. R.
(1926) A. 7 37 where it was held Danger , (1886) 8 A. 262 and Krishna, 2 A. 713 were
wrongly decided, but Attlar, (1924) 47 A. 306 was followed.

(d) Abdul Kadir, (1880) 3 A. 279 (F. B.) followed in Fateh Singh , (1889) 12 A.
432 case under s. 212 infra ; Matukii Misser , (1885) 11 C. 619; Saminatha , (1890)
14 M. 400 followed in Girish Myte, (1896) 23 C. 420.

(e) Hurdut Sarma t (1867) 8 W. R. (Cr.) 68.

(f) Rango Timaji , (1880) 6 B. 402, followed in Kanniappa, (1913)M.W.N. 696.

(g) Thahri, (1911) P. W. R. No. 17 of 1911 : 12 Cr. L. J. 426 : 1 I. C. 609.

(h) Rino Subedae, (1912) 6 S. L. R. 76 : 13 Cr. L. J. 721 : 16 I. C. 753.

(ij Pelho Nashyo, (1866) 2 W. R. (Cr.) 43.

(j) Nagendra Bhakta, (1932) 37 C. W. N. 348.

(k) Rino Subedar, (1912) 6 S. L. R. 76 : 13 Cr. L. J. (271) 16 I. C* 768.

(i) Ameer Khan Mahamad Khan t (1921) 23 Bom. L. R. 823 ; 22 Cr. L. ]. 609;

63 I. C. 145.

SEC. 202] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 365

202. Whoever, knowing or having reason to believe that an

offence has been committed, intentionally
Intentional omission omits to give any information respecting
to give information of that offence which he is legally bound to
boundTto inform. perb ° n give, shall be punished with imprisonment
of either description for a term which may
extend to six months, or with fine, or with both.

Offence— Ss. 40, 203, Explanation. Legally bound— s. 43.

This section punishes the intentional omission to give information of offences
by a person who is legally bound to give such information.

The main point under this section is whether the omission is intentional (m).

For analogous provisions, see s. 176 of the Code and the provisions of Ss. 44
and 45 of the Code of Criminal Procedure.

Procedure : — Non-cognizable Warrant — Bailable — Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first or second class— Triable
summarily.

Before a person can be convicted under this section there must be legal evi-
dence (1) that he has knowledge or reason to believe that some offence has been
committed, (2) an 4 intentional omission to give any information respecting that
offence ; and (3) that he is legally bound to give that information (n).

Intentional omission to give information respecting the offence which
a person is legally bound to give S. 44 of the Code of Criminal Procedure
enjoins upon the public who are aware of the commission of any offence
punishable under any of the following sections, namely, 121, 121 -A, 122, 123, 124,
124-A, 125, 126, 130, 143, 144, 145, 147, 148, 302, 304, 382, 392, 393, 394, 396, 397,
398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459 and 460, to give forthwih
information to the nearest Magistrate of the commission of such offence.

A zemindar would be accountable for an information of the ‘ commission of
murder * and this would bring him, if he neglected his duty, under the purview of
s. 202 (o).

Where a police patel failed to report the arrival at his village of dacoits but
supplied them with food and drink, held, he could not be convicted under this
section as there was nothing to show that an offence had been committed by the
persons who visited his village (p).

203. Whoever, knowing or having reason to believe that an

offence has been committed, gives any in-
tio^r^cSn^n'oE; formation respecting that offence which he
committed. knows or believes to be raise, shall be

punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.

Explanation— In Ss. 201 and 202 and in this section the
word * offence * includes any act committed at any place out of

(m) Per Kemp, J., in Woodoy Chand Mukhopadhaya, (1872) 18 W. R. (Cr.) 3i (32).

(n) P** Clover, J. in Woodoy Chand Mookopadhya, (1872) 18 W. R. (Cr.) 31

(o) Ram Ruekea Singh, (1865) 4 W. R. (Cr.) 29.

(p) Bala, (1881) Rat. Unrep. Cr. C. 160.

866

THE INDIAN PENAL CODE

[CHAP. XI

British India, which, if committed in British India, would be
punishable under any of the following sections, namely, 302, 304,

tvtMc.wmu'Lmui k siw vim l I'M ki

457, 458, 459 and 460.

Legislative changes ‘ This explanation was added by the Indian Criminal

Amendment Act 1894 (III of 1894) s, 7.

This section punishes the giving of false information respecting any oifence
which the person giving information knows or has reason to believe to be false.
It differs from s. 182 inasmuch as there the false information is given to a public
servant with intent to cause injury. It differs from s. 201 in that there is no necessity
to prove that the accused in giving the false information intends to screen an
offender from legal punishment.

Procedure Non-cognizable — Warrant — Bailable — Not compoundable—

Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge : — 1 ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows

That you, knowing (or having reason to believe) that on or about the

day of , at , the offence of was

committed by gave information respecting the said offence, to wit ,

which you knew (or believed) to be false, and thereby committed an offence punish-
able under s. 203 of the Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Object : — Jackson, J., held : “ The object of the legislature is not to insure
general veracity or the making of correct statements in regard to supposed offences,
or to offences the commission of which might be falsely or incorrectly reported, but
to discourage and punish the giving of false information to the police in regard to
offences which had been actually committed, and which the person charged knew
or had reason to believe had been actually committed (r).

Giving false information respecting an offence committed This
section clearly was not intended by the legislature to apply to the case of a person
who gives false evidence as a witness to the police, in the course of their investiga-
tion, and 4 that * only in reply to the questions put to him. It clearly contemplates
information volunteered by some person (u).

This section only applies to information volunteered by the informant, and not
to a false statement made in the course of an examination by a police officer (v).

A prisoner’s intention is immaterial to his conviction under this section of
having given false information respecting an offence committed (w).

The words * gives information * in this section means volunteering information,
or at least the making of positive statements (x).

Where, notwithstanding circumstances of grave suspicion, it is impossible
on the record, as it stands, to hold that a person is the murderer or one of the

(q) (1930) M. W. N. 489.

(r) Joynarain Gatro, (1873) 20 W. R. (Cr.) 06.

(s) Chinna Gangeppa > (1930) 64 M. 68.

(t) Public Prosecutor v. Venkatamma, (1932) M. VV. N. 401.

(u) Sarju, (1910) 7 A. L. J. 1160 (1161).

(v) Nga Po Lwin , (1920) 3 U. B. R. 204 : 21 Cr. L. J. 700 : 67 I. C. 940.

(w) Cheetour Chowheedar, (1804) J W. R. (Cr.) 18.

(x) Joynarain Pat*o<A 1873) 20 W. R. (Cr.) 66, followed in Ahhtehr , (1912) 6
S. L. R. 143: 14 Cr. L. J. 263 : 191. C. 608.

SEC. 204 ) OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 367

murderers, his conviction under Ss. 201 and 203, is not vitiated by the existence
of such circumstances (y).

* having reason to believe * s— The word * believe ’ is a very much stronger
word than ‘suspect* (z).

204. Whoever secretes or destroys any document which he

Detraction oi doc- "“X *>« 1 f wMI X compelled to produce as
ment to prevent its pro- evidence in a v^ourt or Justice, or m any
auction as evidence. proceeding lawfully held before a public

servant, as such, or obliterates or renders illegible the whole or any
part of such document with the intention of preventing the same
from being produced or used as evidence before such Court or
public servant as aforesaid, or after he shall have been lawfully
summoned or required to produce the same for that purpose,
shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.

Court of Justice— s. 20. Public Servant— s. 21.

This section punishes ' secreting or destroying documents * and is analogous
to s. 1 75, supra, but the offence contemplated by this section is of a more serious
nature.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first class.

Charge I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day — of- — , at

, [secreted (or destroyed) a document, to wit -which you might be

lawfully compelled to produce as evidence before a Court of Justice (or in a proceed-
ing lawfully held before a public servant, to wit )J or obliterated (or rend-

ered illegible) the whole (or a part) of such document with the intention of preventing
the same from being produced, or used as evidence before such court or public

servant to wit (or after you had been lawfully summoned or required to

produce the same for the purpose of being used as evidence in a Court of Justice

or in a proceeding lawfully held before a public servant as such, namely ) ;

and that you thereby committed an offence punishable under s. 204 or the Indian
Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Secreting or destroying documents r— Where the plaintiff in a suit referred
to arbitration by consent with a view to prevent a witness from referring to an
endorsement on a bond, snatched up the bond which was lying beside the arbitrator,
ran away and refused to produce it, held that the accused was not guilty of theft
but was guilty of an offence under this section (a). Where upon a report of the
commission of a dacoity the Thanader, at first took down the report which was
made to him, but subsequently destroyed that report and framed another false
report of the commission of a totally different offence to which he obtained the sig-
nature of the complainant, and which he endeavoured to pass off as the original,
held that the police officer was guilty under this section as he certainly secreted

(y) Tepinessa, (1918) 46 C. 427 where Behala Bibi, (1881) 6 C. 789 and Torap
AH, (1886) 22 C. 638, distinguished.

(a) Hango Timaji, (1880) 6 B. 402; Kaniappa Naikar, (1913) M. W. N, 696.

(a) Subramama Ghanapati, (1881) 3 M. 261,

368

THE INDIAN PENAL CODE

[CHAP. XI

or destroyed the first signed report (b), Where the complainant purported to have
committed an offence under s. 477 by wilfully and dishonestly destroying two docu-
ments, one said to be a written contract, by which the complainant's firm sold to the
accused or to his firm certain quantity of shellac, and another spoken of sometimes
as a tender and sometimes as a delivery order bearing endorsement in favour of the
complainant's Ann made by a certain person, the Calcutta High Court held that if
the documents were found not to be valuable security within the meaning of
$. 477, this section and other sections of the Penal Code might be applicable to
the case (c).

Where in the course of. a certain investigation in a case of theft the
police-officer had a certain document drawn up and signed by a Punch, but finding
it disfigured by interlineations and scratches, he had the document re-written in
textually the same form by the same writer and the same Punch and destroyed
the rough document, held that the police-officer could not be convicted under
this section (d).

205* Whoever falsely personates another, and in such assumed

False er onation for c ^ aracter ma ^ es an Y admission or statement,
purpose K al o?Vo- or confesses judgment, or causes any process
ceeding in suit or pio- to be issued or becomes bail or security, or
secution . Joes any other act in any suit or criminal

prosecution, shall be punished with imprisonment of either des-
cription for a term which may extend to three years, or with fine, or
with both.

This section punishes one who makes false personation of a fictitious person
and in such assumed character makes any admission, confess judgment, etc., for
purposes of act or proceeding in suit or prosecution. For analogous law , see the
provisions of Ss. 140, 170, 171 and 415 of the Code.

Procedure Non-cognizable — Warrant Bailable Not compoundable- —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first
class.

Conviction altered by appellate Court, — High Court in revision may
re~alter it : — Where the Sessions Judge on appeal altered the conviction from one
under Ss. 205 and 109 to one under s. 419, the High Court re-altered the con-
viction of the petitioner from one under s. 419 to one under s. 205 and s. 109 and
observed that as the learned Sessions Judge did not acquit the petitioner of the
charge under Ss. 205 and 109, s. 439 (4), Cr. P. Code, was no bar (e).

Complaint No prosecution can be started under this section except upon
a complaint in writing by the Court required under s. 195 (1) (6) of the Code of
Criminal Procedure.

Charge I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you , on or about the -day of ,

a t " 1 , falsely personated (name of the person per-

sonated) in-

(specify the suit or prosecution ) and in such assumed

character, you made an admission (here the statement should be set forth) to wit

(b) Mukommad Shah, (1898) 20 A. 307.

(c) Debendra Nath Ufiadhya V, Bahgirath Mahio , (1921) 38 C. L. J. 158.

(d) Ganga Ram Tukaram , (1912) 14 Bom. L. R. 1183 : 13 Cr. L. J. 012 : 17
I C 1008.

'(e) Ganpat Lal, (1926) 6 P. 217 : 28 Cr. L. J. 620.

4t

SBC. 20®J OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 3®0

(or a statement or confession or caused any process to be issued, or become bail
or security or did any other act), and thereby committed an offence punishable
under s. 205 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge (f).

False personation in suit or criminal prosecution s — A prosecution under
Act III of 1852 is a criminal prosecution within the meaning or this section (g).

“ To constitute the offence of false personation under this section, it is not
enough to shew the assumption of a fictitious name. It must appear that the
assumed name was used as a means of falsely representing some other individual.
The gist of the offence under this section is the feigning to be another known person.
The whole language of the section clearly imports the acting the part of another
person, the actor pretending that he is that person M (h).

It is necessary for a conviction for false personation under this section that the
accused should have assumed the name and character of the person he is charged
with having personated. The mere fact that when the property of a judgment-
debtor was advertised for sale in execution of a decree, a petition was presented in
the name of the judgment-debtor who was ill, was held insufficient to show any in-
tention of falsely personating the judgment-debtor (i).

Fraudulent gain or benefit to the offender is not an essential element of false
personation under this section, and a conviction for false personation may be upheld
even when the personation is with the consent of the person personated (j).

The word 4 suit 4 ought to be confined to such proceedings as under that
description are directly dealt with by the Civil Procedure Code (k).

Fraudulent removal
or concealment of pro-
perty to prevent its
seizure as forfeited or
in execution.

206. Whoever fraudulently removes, conceals, transfers or
delivers to any person any property or any
interest therein, intending thereby to prevent
that property or interest therein from being
taken as a forfeiture or in satisfaction of a
fine, under a sentence which has been pro-
nounced, or which he knows to be likely to be pronounced, by a
Court of Justice or other competent authority, or from being taken
in execution of a decree or order which has been made, or which
he knows to be likely to be made by a Court of Justice in a civil
suit, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine ,?orf with
both.

This section deals with fraudulent removal or concealment of property to
prevent its seizure as forfeited or in execution. Ss. 206, 207 and 208 render it
criminal on the part of the owner of property from preventing its seizure or from
being taken as a forfeiture in satisfaction of a sentence or in execution of a decree
or order of die Court. Ss. 421 to 424 deal with fraudulent deeds and dispositions
of property in order to defraud the creditors.

Scope : — To bring the offence under this section, there must be a > fraudulent
removal, sale, or transfer of property, or of some interest therein, intending thereby

(f) (1867) 8 W. R. (Cr. L.) 18 ; (1866) 6 W. R. (Cr. L.) 6.

(g) Ganga, (1871) Rat. Unrep. Cr. C. 69.

(h) Kadet Ravatton, (1868) 4 M.H. C. R. 18 (19).

(i) Narain Aekarji, (1867) 8 W. R. (Cr.) 80.

(i) SuppaKon, (1863) 1 M. H. C. R. 460.

(k) Watkins v. Fox, (1896) ?§ C. 943 (948) ; Ve-nkatta Ckandratpa v Vfnkatarama
Redit, (1898) 82 M. 366. '

THE INDIAN PENAL CODE

370

[CHAP. XI

to prevent that property from being taken as a forfeiture or in satisfaction of a
fine (1).

Procedure t — Non-cognizable — Warrant — Bailable — Not compoundable — T li-
able by Presidency Magistrate or Magistrate of the lint or second class.

In a trial under this section, it is open to the prosecution to give evidence of
other transfers or deliveries alleged to be similarly fraudulent (m).

Complaint:— No Court shall take cognizance of any offence under this
section except on the complaint in writing of the Court as contemplated by
s. 195 (1) (b) of the Code of Criminal Procedure.

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the-

-day of-

at-

-)XY,

fraudulently removed (or concealed or transferred or delivered to

a certain property ( specify it) intending thereby to prevent the said property from
bring taken as a forfeiture (or in satisfaction of a fine) under the sentence which had

been pronounced [(or which you knew to be likely to be pronounced) by

( mention the Court of Justice or other authority) in case No. — (or intending

surely to prevent its being taken in execution of the decree which had been made

by the Court) ( specify the Court) in Civil Suit No )], and that you

thereby committed an offence punishable under s. 206 of the Indian Penal Code,
and within my cognizance.

And I hereby direct that you be tried on the said charge.

Fraudulent removal of property A creditor commits no fraud, who
anticipates other creditors and obtains a discharge of his debt by the assignment
of any property which has not already been attached by other creditors. It is not
for the accused to prove that the debt was due, but for the prosecution to prove that
it was not due (n).

Where a person, in order to protect his own property not legally liable for the
decree from confusion with property which was so liable made it over to another
person ; held, such a transfer would not constitute the offence described in this
section (o), but a person who fraudulently removes property intending thereby
to prevent that property from being taken in execution of a decree or order which
has been made by a Collector, who is a Court of Justice in a Civil Suit, i\e., a suit
for rent, commits an offence under this section (p).

Where the petitioners cut and carried off crops which they knew to be under
attachment in execution of a certificate under the Public Demands Recovery Act
(I of 1895) and were convicted under this section, held that the accused were guilty
of an offence under the latter part of this section (q).

Voluntary Transfer : — In the case of a transfer for valuable consideration,
creditors who can only look to the property as available in execution cannot object
to the transfer as fraudulent, if it has been made and accepted bona fide (r). Where
A before his conviction on a charge of felony executed a voluntary settlement of

(l) Bahnookund, (1872) 18 W. R. (Cr.) 65.

(m) Vajiram, (1802) 16 B. 414 (430).

(n) Appa Mallya, (1876) Rat. Unrep. Cr. C. 110.-

(o) In re. Basapa Shivappa, (1917) 19 Bom. L. R. 536 : 18 Cr. L. J. 784 : 41
I. C. 180.

(p) Gour Chandra Chuherbutty v. Kisktn Mohan Singh, (1868) 10 W. R. (Cr.)

28 .

(a) Sunder Dasadh v. Sital Mahto, (1900) 28 C. 217.

(?) Ganabhai V. Srinivasa Pillai, (1868) 4 M. H. C. R. 84 (88),

SEC. 207 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 371

personal estate belonging to him upon his wife and children, held that such settle-
ment was fraudulent and void against the Crown (s).

A transfer of property made to certain creditors fraudulently and in con-
templation of the insolvency of the transferor is not voidable at the suit of another
creditor if the transferees were purchasers in good faith and for consideration (t).
The Privy Council has held that decree-holders, who purchase under their own
decree which is afterwards reversed on appeal, stand in a different position from
strangers who purchase thereunder bona fide while the decree and the order for
sale are valid (u).

Applicability of Ss. 206 and 207 r— A civil suit must be actually pending
before a Court and not merely intended to be filed before a person can prosecute
another under Ss. 206 and 207 for a fraudulent transfer of property likely to be
taken in execution of the civil decree that is passed or is likely to be passed (v).

207. Whoever fraudulently accepts, receives or claims any

Fraudulent claim to property or any interest therein, knowing
property to prevent its that he has no right or nghttul claim to
seizure as forfeited or suc h property or interest, or practises any

deception touching any right to any property
or any interest therein, intending thereby to prevent that property
or interest therein from being taken as a forfeiture or in satisfac-
tion of a fine, under a sentence which has been pronounced, or
which he knows to be likely to be pronounced by a Court of
Justice or other competent authority, or from being taken in
execution of a decree or order which has been made, or which
he knows to be likely to be made by a Court of Justice in a civil
suit, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with
both.

Fraudulent — s. 25. Court of Justice — s. 20.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first or second class.

Complaint * — No prosecution under this section can be initiated without a
complaint in writing by the Court as contemplated by s. 195 (1) (b) of the amended
Code of Criminal Procedure.

Charge 5 — I (name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows: —

That you, on or about the day of , at ,

fraudulently accepted (or received or claimed) certain property or interest in property

to wit — — * ■, knowing that you had no right or rightful claim to the same

(or practised deception touching a right to certain property or an interest in certain

property to wit ) by intending thereby to prevent that

property or interest jn property from being taken as a forfeiture or in satisfaction

(s) Re Sounder's estate, (1864) 32 L. J. Ch. 224.

(t) Gopalv. Bank of Madras, (1892) 16 M. 397.

(u) Per Sir Barnes Peacock in Nawob Zoimul Abdin Khan v. Muhammad A sear
Alt Khan, (1887) 16 I. A. 12 (16, 16).

(v) Sushenbekari Rqy, (1930) 68 C. 1061.

(w) Ponnuswami, 8 R.*288*t A. I. R. (1930) R. 128.

372

THE INDIAN PENAL COfcE

[CHAP. XI

of a fine under a sentence which had been pronounced or which you knew to be

likely to be pronounced by the Court of ■ (or by a competent authority to

wit ) (or horn being taken in execution of a decree or order which had

been made or which you knew likely to be made by the Court in suit — ■) ;

and that you thereby committed an offence punishable under s. 207 of the Indian
Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

208. Whoever fraudulently causes or suffers a decree or
Fraudulently suffer- order to be passed against him at the suit
ing decree for sum not of any person for a sum not due, or for a
due ' larger sum than is due to such person or

for any property or interest in property to which such person
is not entitled, or fraudulently causes or suffers a decree or order
to be executed against him after it has been satisfied, or for any-
thing in respect of which it has been satisfied, shall be punished
with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

Illustration.

A institutes a suit against Z. Z, knowing that A is likely to obtain a decree
against him, fraudulently suffers a judgment to pass against him for a larger amount
at the suit of B. who has no just claim against him, in order that B, either on his own
account or for the benefit of Z, may share in the proceeds of any sale of Z* s property
which may be made under A ’$ decree. Z has commi tted an offence under this section .

This section punishes a person fraudulently causing or suffering a decree to
be passed against him for a sum not due or for more sum than is due in order to
secure the property against future creditors.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first class.

Complaint : — No Court shall take cognizance of an offence under this section
except on the complaint in writing by the Court as contemplated by s. 195 (f)(i)
of the Code of Criminal Procedure.

Charge : — I ( name and office of Magistrate , etc.) hereby [charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

fraudulently caused (or suffered) a decree (or order) to wit in suit

No. of the Court of to be passed against you, and, which

was for a sum not due (or for a larger sum than is due to such person or for* any
property or interest in property to which the decree-holder was not entitled) or

fraudulently caused (or suffered) a decree (or order) to wit — — — decree

No. in Suit No. decided by the Court

on : , to be executed against you after it had been satisfied (or for anything

in respect of which it had been satisfied) and thereby committed an offence under
s. 208 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

209. Whoever

Dishonestly making
false claim in Court,

fraudulently or ^honestly, or with intent
to injure or annoy any person, makes in a
Court of Justice any claim which he knows
to be false, shall be punished with imprison-

teC. 310 j OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 573

ment of either description for a term which may extend to two
years, and shall also be liable to fine.

Fraudulently — s. 25. Dishonestly — s. 24. Injure— s. 44. Court of Justice— s. 20.

This section punishes a person who fraudulently or dishonestly makes a claim
in a Court of Justice which he knows to be false. The use of the expression * dis-
honestly * makes this section wider in its application than the preceding section.

Scope : — This section relates to false and fraudulent claims in a Court of
Justice. An attempt to execute a decree cannot correctly be described as a
false claim. S. 210 provides a punishment for fraudulently causing a decree to be
executed after it has been satisfied (x). A person cannot be convicted both of
fraudulently and dishonestly making a false claim in a Court of Justice and of
falsely attesting the plaint in a false case the latter being an essential ingredient
of the former offence. Unless there was evidence in a case that the claims in the
suits were false, this section has no application (y).

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

Complaint — by the Court as contemplated by s. 195 (I) (6), Criminal
Procedure Code, is essential for a prosecution under this section.

Separate convictions for fraudulently making a false claim and for falsely
attesting the plaint are illegal (z).

Charge I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of at ,

fraudulently (or dishonestly or with intent to injure or annoy any person)

made a claim, to wit ( specify the particulars of the claim) in suit

No. of -^in the Court of and which you knew to be

false and thereby committed an offence under s. 209 of the Indian Penal Code,
and within my cognizance.

And I hereby direct that you be tried on the said charge.

Dishonefttly~making a false claim in Court i~In order to bring a case
under this section, it is immaterial whether the Court in which the false claim
was instituted had jurisdiction to try the suit. The words in this section are
‘ Court of Justice * and not * a Court of Justice having jurisdiction in the case '.
Similarly if he obtains a decree fraudulently for a sum not due, the case will fall
under s. 210 (a).

The word ‘ claim * in this section cannot refer to a document produced in
evidence to substantiate the relief asked for in the suit (b).

210. Whoever fraudulently obtains a decree or order
Fraudulently obtain- against any person for a sum not due, or
mg decree for sum not for a larger sum than is due, or for any
ae ' property or interest in property to which he

is not entitled, or fraudulently causes a decree or oraer to be exe-
cuted against any person after it has been satisfied or for anything
in respect of which it has been satisfied, or fraudulently suffers or

(x) Begum Mahtoon, (1869) 12 W. R. (Cr.) 37.

(y) Zur Muhammad Khan. (1901) A. W. N. 1S7.

(x) Ramananian V. Public Pr me tutor, 11920) 22 Cr. L. J. 467 : 61 I. C. 995 (Pat).

(a) Badri, (1019) 20 Cr. L. J. 698 : 52 I. C. 666 (All.).

(b) Boddu Ramaya v. Chitturi Surayya, (1915) 48 M. L. J. 488 : 17 M. L, T,
416 : 16 Cr. L. J. 439 : 2%^. C*,71.

374

THE INDIAN PENAL CODE

[CHAP. XI

permits any such act to be done in his name, shall be punished
with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

Fraudulently— s. 25.

This section is the counterpart of s. 208. S. 208 punishes the fraudulent
judgment-debtor, whereas this section punishes the fraudulent decree-holder.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first class.

Complaint— by the Court as contemplated by s. 195 (1) (6), Criminal Pro-
cedure Code of 1923, is essential for a prosecution under this section.

Charge r— I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

fraudulently obtained a decree (or order) in suit No. of against

for Rs. which was not due or was a larger sum than was due, or

for any property or interest in property to which you are not entitled [(or fraudu-
lently caused a decree or order) to be executed against after it had been

satisfied (or fraudulently suffered or permitted any such act to be done in your
name)] and thereby committed an offence under s. 210 of the Indian Penal
Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Scope: — This section pro rides a punishment for fraudulently causing a
decree to be executed after it has been satisfied (c).

Fraudulently obtaining a decree for sum not due An offence is com-
mitted under this section when the decree is fraudulently obtained, and though
the fact that the decree has not been set aside might be admissible as evidence to
prove that there was no fraud, it is not a bar to a prosecution under this section (d).
Where a decree-holder drew the attention of the executing Court to the final decree
both in the heading and at the foot of his application for execution, but misdes-
cribed its precise terms, held that he could not be convicted under this section (e).

Where M obtained a decree for sale of half of certain property and he executed
the decree thrice — first he applied for sale of half of the property but in his second
application which was infructuous he applied for sale of the whole property and
actually got the same sold by his third application, and he was convicted under
section 193 on the application of the judgment-debtor which was altered to one
under this section by the appellate Court, the Allahabad High Court held that the
facts proved did not establish a fraudulent intention and set aside the conviction (0*

‘satisfied The word * satisfied ’ is now understood in its ordinary meaning
and not as referring to decrees the satisfaction of which has been certified to the
Court (g).

Where a decree had been satisfied out of Court, thl Judge could not recognize
the payment, so as to rule that the execution was illegal, yet he was not prevented
from investigating into the question whether the facts brought the case within
this section (h).

(c) Begum Mahtoon , (1869) 12 W. R. (Cr.) 37. ~~

(d) Moll a Fuzla Karim, (1905) 33 C. 193 (198, 199).

(e) Daya Ram, (1914) P. L. R. No. 64 of 1912 : P. W. R. No. 11 of 1914 (Cr.) :

15 Cr. L. J. 463 : 23 I. C. 471. , ■ ■ ' '

^(f) Shama Ckaran Das v. Kasi Naik , (1896) 23 C. 971 ; Mongol Rat , (1907) 7

(g) Bapuji Dayaram, (1886) 10* B. 288.

(h) Mutlaraman Chetti (1881)' 4 M. 32 5; Piltala, (1895) 9 M. 101.

SEC. 211 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 376

The words ‘ after it has been satisfied ' in this section indicate only the fact
of the satisfaction of the decree. Merely because the satisfaction is of such a
nature that the Court executing the decree could not recognize it would not take
the case out of the purview of the section (i). Where the decree-holder in his
application for execution of a decree made no mention of having received a certain
sum of money from the judgment-debtor, he was held guilty of an offence under
this section (j).

Order of attachment fraudulently obtained : — The offence is committed
where an order of attachment is fraudulently obtained (k).

211 . Whoever, with intent to cause injury to any person.
False charge of offence institutes or causes to be instituted any
made with intent to criminal proceeding against that person, or
,n i ure- falsely charges any person with having com-

mitted an offence, knowing that here is no just or lawful ground
for such proceeding or charge against that person, shall be punished
with imprisonment of either description for a term which may
extend to two years, or with fine, or with both ;

and if such criminal proceeding be instituted on a false
charge of an offence punishable with death, transportation for life,
or imprisonment for seven years or upwards, shall be punishable
with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.

Scope : — A Full Bench decision of the Calcutta High Court has held that a
man who sets the criminal law in motion by making a false charge to the police
of a cognizable offence, institutes criminal proceedings within the meaning of
this section ; and that if the offence fall within the description in the latter part
of the section, he is liable to the punishment there provided (1). The Madras
High Court has held that a false charge deliberately made before a police officer,
with a view to its being brought before a Magistrate, brings a party making
it within the provisions of this section (m). The High Court has held a
view different from that of the Full Bench decision of the Calcutta High Court.
The word ‘ charges ’ as used in the section, means something different from
' gives information. ' The words ‘ falsely charges ’ must be construed with
reference to the words which speak of the institution of criminal proceedings (n).
It may be pointed out that the Calcutta Full Bench decision was not followed in
Allahabad, in Bishawar & case (o), which however was distinguished in Parameswar
Lai's case (p) where it was held that a charge led before the police is a criminal
proceeding within the meaning of s. 211.

“ We have been referred to a number of other cases ; but in none of them
has it been distinctly held, on any principle that we are able to appreciate, that

(i) Madhab v. Novodeep, (1888) 16 C. 146.

(i) Or. 21, R. 58, C. P. C. ; Chiman Lai V. Ghulam Mohiudiin, (1910) P. L. R.
No. 5# of 1911 : P. W. R. No. 59 of 1911 (Cr.) : 12 Cr. L. J. 189 : 10 I. C. 646.

(%) Hihamal ulla K han, (1931) A. L. J. 117.

(1) Karim Buksh, (1888) 17 C. 574 (578) (F. B.), followed in Parmeswar Lai, (1928)
4 P. 472.

Per Scotland, C. J., in Subhana, 1 M. H. C. R. 30, followed in (1865) 4 W. R.
11 ; A shroff AU, (1897) 5 C. 281.

RavanKuth, (1903) 26 M. 640 (643);

(1893) 16 A. 124.

Parmeswar Lai, (1925) 4 P. 472. .

876

THE INDIAN PENAL CODE

[ CHAP. XI

where a fake report has been made to the police and a similar complaint subse-
quently to the Magistrate, no proceeding can be instituted by the police under
section 182 with reference to the false report made to them " (q).

The Bombay High Court left the question undecided in Jijibhai GobinJTs
case (r). The Patna High Court has held that an offence under s. 21 1 must always
include an offence under s. 182 {*). The Rangoon High Court in Ram Broses
case (s x ) held that an offence under s. 211 includes an offence under s. 182 and
the converse proposition does not hold good, but this view was dissented from in
Ma Paw's case (t).

Difference between i. 182 and a. 211 t—See commentary on s. 182.

Procedure : — Non-cognizable — Warrant— Bailable — Not compoundable —
if the offence charged be punishable with imprisonment for seven years or upwards
— Triable by Court of Session, Presidency Magistrate or Magistrate of the first
class — if the offence charged be capital or punishable with transportation for life
(then exclusively) — Triable by Court of Session.

The prosecution must prove —

(a) that the prisoner with intent to cause injury to XY,

(b) instituted or caused to be instituted a criminal proceeding against XY t

(c) knowing that there was no just or lawful ground for sucn proceeding.

The last of these three points, the guilty knowledge , is the most difficult to
prove ; but that it should be proved subsequently by the prosecution is absolutely
essential. The prisoner being put on his trial as for a criminal offence, it is for
the prosecution to make out a distinct case against him, not for the prisoner in the
first instance to justify himself, and show that he had ' just and lawful grounds * (u).

In an inquiry under this section, proof of the absence of just and lawful ground
for making the charge is an important element (u l ), and it is for the prosecution
in the first instance, to make out a distinct case against the prisoner, and not for
the accused to show that he had just grounds for making the charge (v).

A statement made under s. 162, Cr. P. Code, in answer to questions put by a
police officer making an investigation under s. 161, Cr. P. Code, cannot be made
the basis of a prosecution under this section (v 1 ).

Where a person is charged under this section with an offence knowing that
there is no just or lawful ground for the same, the accused should be allowed to
show the information on which he acted and the Judge ought not only to be satis-
fied that the facts alleged as the ground for making the charge are in themselves
untrue and insufficient, but also that they were known to be such to the accused
when the charge was made by him (w).

It is not enough and not a sufficient ground for a charge under this section,
that a person to whom a wrong has been done or who conceives that a wrong has
been done to him, makes a charge or complaint upon evidence or a statement which
is not or ought not to be sufficient to satisfy a reasonable mind. However rashly
he may act in receiving and believing such statement— if in fact and truth he does

(q) Jang Bahadur Singh, (1928) 26 A. L. J. 633.

(r) (1896) 22 B. 696(600).

S Daroga Gopt , (1925) 5 p. 33 (39).

Ij (1928) 6 R. 678 : A. I. R. (1928) R. 268.

(t) (1920) 8 R. 499.

(u) Novokristo Ghose , (1867) 8 W. R. (Cr ) 87 p. 89 ; Gopal Dhanuh, (1881)

7 C. 96, Hurish Chandta Neogi V. Nishihanta Bantrji , (1901) 28 C. 691.

(ul) Raghcwendra v. Kashinath , (1894) 19 B. 717 (726).

(v) Novokristo Ghose, (1867) 8 W. R. (Cr.) 87, sea Mamprosad, (1912) 17 C. W. N.
879: 16 C. L. J. 463.

(vl) Chinna JRamana Gowd , (1908) 81 M. 606.

(w) Navamal, (1866) 8 Bom. H. C. R. (Cr. C.) 16.

SEC. 211 1 OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE S?Y

not know, at the time he makes the complaint, that there are no just and lawful
grounds for making the complaint, he cannot be convicted under this section (x).

Lord Denman, C. J. t held : “ Belief is essential to the existence of reasonable
and probable cause. I do not mean abstract belief, but a belief upon which a
party acts. Where there is no such belief, to hold that the party had reasonable
and probable cause would be destructive of common sense. Proof of the absence
of belief is almost always involved in the proof of malic*" (y).

Hawkins, J., held : “ I should define reasonable and probable cause to be

an honest belief in the guilt of the accused based upon a full conviction founded
upon reasonable grounds, of the existence of a state of circumstances, which assum-
ing them to be true, would reasonably lead any ordinary prudent and cautious man,
placed in the position of the accuser, to the conclusion that the person charged
was probably guilty of the crime imputed. There must be :

“ First an honest belief of the accuser in the guilt of the accused ;

“ Secondly , such belief must be based on an honest conviction on the existence
of the circumstances, which led the accuser to that conclusion ;

“ Thirdly , such secondly-mentioned belief must be based upon reasonable
grounds ; by this I mean such grounds as would lead any fairly cautious man in
the defendant’s situation so to believe;

" Fourthly, the circumstances so believed and relied on by the accuser must
be such as amount to reasonable ground for belief in the guilt of the accused (z).

As Parke, J., said : " Malice in this form of action is not to be considered in the
sense of spite or hatred against an individual but of malm animus, and as denot-
ing that the party is actuated by improper and indirect motives” (a). Lord
Bramwell said : “ To mention an action for a malicious prosecution, it must be
shown that there was an absence of reasonable and probable cause and that there
was malice or some indirect and illegitimate motive for the prosecution” (b).

Absence of probable cause does not imply malice in law (c). In a case under
this section, failure on the part of the complainant to establish the truth of his alle-
gation does not by any means justify the inference that the complaint was false ;
and to secure a conviction in this class of cases, it must be established beyond
reasonable doubt that the circumstances are not merely consistent with the guilt of
the accused, but entirely inconsistent with his innocence fd).

The duty of the prosecution in a case under this section is to prove by satisfactory
evidence that the charge was wilfully false to the knowledge of the maker of the
charge (e).

The offence under this section is a non-cognizable offence and the police cannot
start proceedings and investigate into the matter even though they got the sanction
of the Superintendent of Police. The mere charge-sheet by the police does not
amount to a complaint. Where the petitioner made a complaint before a Village
Munsif that a dacoity was committed in his house and a number of persons were
named as having taken part in it, the Munsif forwarded the complaint to the file
of a sub-magistrate who accepted the charge-sheet and struck the case off his file.
The police subsequently put in a charge-sheet under this section, held that the

PranKrisen , (1860) 6 W. R. (Cr.) 16.

Per Lord Denman, C. T., in Hadrick V. Heslop, 12 0. B. 267 at p. 274.

Faulkner, (1878) 8 Q. B. D. 167 (171).

Michell v. Jenkins, 6 B. & Ad. 594.

Abrath v. North Eastern Railway Co., L. R. 11 App. cases, 251.

Venkatta Krishna, (1889) 13 M. 394 (Gvii case).

Per Sir Ashutosh Mookerji, J., in Ramprosad, (1912) 17 C. W. N. 379 (889).

Mir 9 a Hassan, (1913) 18 C. W. N. 391.

THE INDIAN PENAL CODE

378

[CHAP. XI

police charge-sheet did not amount to a complaint and that the entire proceedings
were illegal and should be qdtehed (0*

Complaint : — No Court shall take cognizance of an offence punishable under
this section except on the complaint in writing of the Court* vide s. 195 (I) (b) 9
Criminal Procedure Code.

Although the amended Code of Criminal Procedure of 1923 del etc* ‘sanction *
and substitutes * complaint in writing of the Court * the principle guiding sanction
is still applicable in cases of complaint by the Court (g).. No prosecution is sus-
tainable without the previous complaint of the Court which tried the case of the
opposite party againstthe petitioner (h). Where an information to the police is
followed by a complaint to the Court based on the same allegations, sanction or
complaint by the Court under s. 195 (1) (b) is necessary before cognizance of an
offence under s. 211, I. P. C., can be taken (i), but where the offence was not com-
mitted in or in relation to any proceeding in any Court, s. 195 (1) (b) does not apply (j).

Opportunity must be given to the complainant to prove bis charge
before he can be prosecuted under this section A person laid an informa-
tion before the police and the police thereafter reported the case to be false ; the in-
formant then appeared before a Magistrate asking that his case might be investigated
and his witnesses summoned. The application was refused, and the Magistrate
after perusing the police report passed an order directing him to be prosecuted
under this section. The Calcutta High Court by a Full Bench decision held that
a Magistrate should not take cognizance of an alleged offence under this section,
until the alleged offender has had an opportunity of substantiating the original
charge, and such original charge has been disposed of in due course of law (k).
An order for prosecution under s. 476, Criminal Procedure Code, cannot be made
where the alleged offence has been committed not in Court but in relation to a
police investigation (1).

Where a complaint was made against a police officer of a non-cognizable
offence and the Magistrate sent the complaint for enquiry to another police officer
who reported it to be groundless, and the Magistrate thereupon dismissed the
complaint without taking evidence and directed the prosecution of the complainant
under this section, the Allahabad High Court held that the inquiry should have been
conducted by the Magistrate himself or some other Magistrate and set aside the
order directing the prosecution of the complainant (m). Where K made a report
at a police station accusing R of having stolen cattle, the police having reported to
the Magistrate that the offence had not been established, the Magistrate directed that

(£) Pevumal Naick, (1025) M. W. N. 317.

(g) See the cases under the old Code of Criminal Procedure on ' sanction * F. A.
Blown v. Ananda Lai Mullich, (1916) 44 C. 650 : 20 C. W. N. 1347 : 25 C. C. J. 59 :
18 Cr. L. J. 25 : 38 I. C. 857 ; Tayebulla, (1916) 43 C. 1152 : 20 C. W. N. 1265 : 24
C. L. J. 134 : 38 I. C. 845 : 18 Cr. L. J. 13.

(h) Sheikh Samad v. Sajidar Rahman, (1926) 53 C. 824 ; Sheikh Abdulla, (1931)
35 C. W.N. 1210.

(i) Brown v. Ananda Lai Mullich, (1917) 44 C. 650 ; Mohammed Yasin, (1924)
4 P. 323 ; Dholla v. SnV Inspector of Police Station, Wellington, (1931) 61 M. L. J. 770.

(j) Muhammad, (1928) 9 L. 408.

(k) Sham Lai , (1887) 14 C. 707 (F. B.) p. 720, dissented from by Cumming, J.,

in Bab at AH Biswas, (1930) 58 C. 1065, followed in Jogendra Nath Mookerjee, (1905)
33 C. I.; Mahadeo Singh, (1900) 27 C. 921 ; Jagabandhu Karmakar, (1902) 30 C. 415 ;
Gunomoney Sapui, (1899) 3 C. W. N. 758 ; Lalji v. Giridhari, (1901) 5 C. W. N. 106 ;
Akhoy Kumar Chakrabarty , (1926) 31 C. W. N. 124; Shaikh Abdullah, (1931) 35
C. W. N. 1210 ; Lachmi Shaw, (1931) 36 C. W. N. 150, followed in Charles Jones ,
(1932) 36 C. W. N. 794 and Shekendar Mia, 37 C. W. N. 399. * ■

(l) Tayebulla (1910) 43 C. 1152, following Mottli Durst v. Naurangi Lai (1900) 4
C. W. N. 351 ; Tayebulla* s case was followed in Bhairab Chandra Burma, (1919) 46
C 807

(m) Mewalal, (1920) 18 A. L. J. 620 : 21 Cr. L. J. 416 : 56 I. C. 64.

SEC. 211 3 OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 379

the case should be shelved. K then preferred a complaint to the Magistrate who
rejected the complaint. Subsequently K was # prosecuted and convicted under
s. 182 of the Code in respect of the report which he had made at the thana, the
Allahabad High Court held that opportunity should have been given to the com-
plainant to establish his case before he was put on his trial under this section (n).
But the Madras High Court by a Full Bench has held that if the Magistrate dismisses
a complaint upon a report from the police and there is no legal evidence before him
upon which he is to frame his opinion, notice must be issued to the party con-
cerned to show cause why his prosecution should not be sanctioned (o). The
Bombay High Court has held that the fact that no opportunity was given to the
accused to substantiate his complaint before striking it off was not a circum-
stance which invalidated a prosecution under this section, as the trial before the
committing Magistrate and in the Sessions Court in the case gave ample oppor-
tunity to the accused to substantiate his complaint and he was not prejudiced by
the omission (p). The Bombay High Court has held in Pampappas case (q) that
before lodging a complaint of a false charge the original complaint must have ter-
minated, and held further that a complainant could not be prosecuted under this
section where he was not examined on oath, nor his statement taken in writing.
The Patna High Court in the case of Maguni Padhan (r) held that the Code nowhere
requires that before proceedings under this section are taken, the person to be pro-
ceeded against must be given a chance of showing cause but as a matter of caution
the decisions have laid down that an opportunity should be given In a later
decision (s) the same High Court has held that the order of conviction under this
section cannot be contested on the sole ground that the accused was not afforded
an opportunity of proving his case.

Withdrawal of complaint : — A District Magistrate cannot order tfc
withdrawal of a complaint under this section as such complaint is not referred to in
s.!95(l)(A),Cr. P. Code (t).

False charge to the police and subsequent complaint in Court An

order for prosecution under s. 476, Criminal Procedure Code, cannot, be made where
the alleged offence has been committed not in Court but in relation to a police
investigation (u).

Where the information to the police was followed by a complaint to the Court
on the same allegations and on the same charge as that contained in the information
to the police and the complaint was investigated by the Court, held , sanction or com-
plaint by the Court would be necessary before the Court could take cognizance of
an offence under this section (v) ; but it has been held in Ghaslawari Singh's case (w)

(n) RadhaKishan, (1882) 5 A. 30, following Karimdad, (1880) 6 C. 496; Raghn
Tewari, (1893) 15 A (338); Tula, (1907) 29 A 587 ; Tabarah Zamwan Khav, (1907) 30
A. 52.

(o) Sheik Beari, (1887) 10 M. 232 (F. B.).

(P) Jijibhai Govind , (1896) 22 B. 596 ; Bkika Lai, (1890) Rat. Unrcp. Cr. C. 624 ;
Rachappa, (1910) 12 Bom. L. R. 229 (231).

(q) (1926) 28 Bom. I.. R. 490 : 27 Cr. L. J. 740 * 95 I. C. 68.

(r) (1917) 7 P. 408 ; Suchit Rout , (1929) 9 P. 129.

(s) Sobratin Sain, 8 P. 734.

(t) Ramprosad , (1927) 25 A. L. J. 639.

(u) Tayebulla, (1910) 43 C. 1152 following Mouli Dirzi v. Naurangi Lai , (1900)
4 C. W. N. 351, Tayebulla’s case was followed in Bhairab Chandra Burua, (1919) 46 C.
807.

(v) Brown v. Anandalal Mullick , 44 C. 650 : 20 C. W. N. 1347 : 25 C. L. J. 59 :
36 I. C. 867, followed in Sheikh Muhammad Yeasin, (1924) 4 P. 323 and in Daroga
Gope, (1925) 6 P. 33 ; Subhag A hir, (1931) 11 P. 155 and in Sheikh Samir v. Sajidar
Rahman, and in Rambrose , (1928) 6 R. 578, but not followed in Prog Datt Tiwari,
(1928) 51 A. 382 ; A. I. R. (1928) A. 765 where Kashi Ram, (1926) 46 A. 908 : A. I. R.
(1924) A. 77 tf was followed.

(w) (*928) 24 A. L. J. 816 : 96 1. C. 870.

THE INDIAN PENAL CODE

380

[ CHAP. Xt

that cfe cannot proceed under $. 211, where complaint of dacoity was filed in
Court 4» the first instance.

Where a complaint was made against a police officer of a non-cognizable offence
and the Magistrate sent the complaint for enquiry to another police officer who
reported it to be groundless, and the Magistrate thereupon dismissed the com-
plaint without taking evidence and directed the prosecution of the complaint under
this section, the Allahabad High Court held that the inquiry should have been
conducted by the Magistrate himself or some other Magistrate and set aside the
order directing the prosecution of the complainant (x).

Enquiry by Magistrate who dismissed the complaint : — When a false
complaint is made to a Magistrate and the complainant is proceeded against under
this section, the Magistrate to whom the complaint was originally made is not
himself competent to try the offence under this section (y). The proper authority
to make a complaint under s. 476, Cr. P. Code, however, is not the Court which
took cognizance and issued process but the Court which tried and disposed of
the original case (y 1 ).

Charge: — Where accused gave separate information on different dates, it
was held that they ought not to have been tried together, and there ought to have
been a separate charge against each in respect of the information given by him ( z).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge you
C namejof accused) as follows : —

That you, on or about the day of , at ,

with intent to cause injury to one instituted criminal proceedng before

charging the said with having committed the

offence of , (or falsely charged the said before

with having committed an offence to wit ) knowing at the time that

there was no just or lawful ground for such proceeding (or charge) against the said

, and that you thereby committed an offence punishable under s. 21 1

of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Misdirection in Charge to the Jury : — Where the Sessions Judge in his
charge to the Jury concluded with these words, “ I now leave the case in your hands.
If you believe the charge of dacoity to be false, then you should find the prisoner
guilty under s. 211 ; otherwise you should acquit him," the Calcutta High Court
held the charge to be defective and held further that the Judge was in error in not
putting before the Jury all the elements which constitute the offence under this
section, viz., that in instituting the false charge of dacoity there was no just or lawful
ground for the charge (a). It is irregular for a Judge to discuss in his charge to the
Jury the various points of law, some of them minute and difficulty and this introduc-
tion into the charge of matters foreign to it is calculated to puzzle arid mislead the
Jury. It is a misdirection not to put before the Jury any clear statement of the
main facts which it is for the prosecution to prove and which are essential to a
conviction. The Judge ought to state how or in what way the person aggrieved
is injured (b).

It is a misdirection to tell the Jury that if they believed that the prisoner had
just and lawful ground for instituting the prosecution, they must acquit him. The

(x) Mew alal, (1920) 18 A. L. J. 620 : 21 Cr. L. J. 416: 66 I. C. 64.

(y) Ambika Singh , (1026) 6 P. 460 % 27 Cr. L. J. 987 : A. I. R. (1928) P. 868.
(yl) Tarakeswar Mukhopadhay, 63 C. 488 : 30 C. W. N. 604 ; Sheikh Samir v.

Sajidar Rahman, (1926) 62 C. 824.

(z) Gopal Kahar , (1920) 22 Cr. L. J. 333 : 61 1. C. 61

(a) Tamil alias Tamijuddin Ptamanih, (1897) 1 C. W. N. 301. v

(b) Nabahristo Ghost, (1867) 8 W. R. (Cr.) 87. , *

SEC* 211] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 381

proper charge would be to tell the Jury, * unless they believe that the prisoner knew
that he had no just or lawful ground for instituting the proceedings, they must
acquit him # (c).

Summ ary trial : — Where the Magistrate convicted the complainant under
this section in a summary proceeding, held that the conviction is improper and
open to serious objection (d).

Effect of composition : — The fact that an offence had been compounded is
no conclusive answer to the charge under this section (e). Because the charge
(under s. 448, original charge) was compromised, it does not follow that the said
charge was true if).

Burden of proof : — For a conviction under this section the prosecution
must prove that the accused knew that there was no just or lawful ground for the
charge (g).

It is the duty of the prosecution to prove by satisfactory evidence that the
charge was wilfully false to the knowledge of the maker of the charge. Failure
on the part of the defence to examine any particular witness or witnesses will not
imply the guilt as having been proved (h).

In an action for malicious prosecution it is not sufficient, in order" to prove the
falsity of the accusation, for the plaintiff to put in the judgment of the criminal
Court which terminated in his acquittal (i).

Compensation : — Under s. 250 of the Code of Criminal Procedure as amended
in 1923, the Magistrate after discharging or acquitting the accused may forthwith
call upon the complainant to shew cause why he should not pay compensation to
the accused for his frivolous or vexatious complaint and under cl. (2) after con-
sidering the cause shewn, for reasons to be recorded, may award compensation not
exceeding Rs .100, or if the Magistrate is one of the third class, not exceeding Rs. 50
but cl. (2) (c) is in the following terms : —

“ No person who has been directed to pay compensation under this section shall,
by reason of such order, be exempted from any civil or criminal liability in respect
of the complaint made or information given by him.” Cl. (3) provides for an appeal
against the order (j).

Order of compensation must be passed at the time of the order of discharge
or acquittal otherwise the order will be illegal (k).

But it follows from cl. 2 (c) of s. 250, Criminal Procedure Code, that it is open
to a Magistrate to award compensation for a frivolous or vexatious complaint and
at the same time under s. 195, cl. (1 )(4), Criminal Procedure Code, to prefer
a complaint in writing under this section. Therefore the case of Bachu Lai v.
Jagadam , (1898) 26 C. 181 , is overruled and the decision of the Madras High Court
in Adi Khan v. Alagan, (1879) 21 M. 237, followed by the Bombay High Court in
Gopal Bhan Chagula,(]9\2)37 B. 377, is good law.

Essential ingredients of the offence under this section i — The necessary
ingredients to constitute a false charge under this section are three

(c) Prankissen Bid , (I860) 6 W. R. (Cr.) 15.

(d) Parsi Hajra v. Bandhi Dhanuk, (1900) 28 C. 251.

(e) A tar Alt, (1884) II C. 79 (81).

(f) Bansidhar Marwari , (1923) 24 Cr. L. J. 802 : 74 I. C. 1054 : A. I. R. (1924)
Pat. 138.

(g) Gopal K ah at, (1920) 22 Cr. L. J. 33.

(h) Hasan Mirza, (1913) 18 C. W. N. 391 : 15 Cr. I.. J. 356 : 23 I. C. 723.

(i) Goburdhan Singh v. Ram Badan Singh , (civil case) (1922) 44 A. 285 : 20
A. L. J. 284$ k. I. R. (1922) A. 209.

(j) S. 200 of the amended Code of Criminal Procedure (Act XVIII of 1923).

(k) Surest Chandra Gupta v. Abdul Jabbar, (1924) 29 C. W. N. 137.

382

THE INDIAN PENAL CODE

[CHAP. XI

(I) It must be made with intent to injure; (2) It must be false ; (3) It
must be made without just or lawful ground ; in other words it must be made
maliciously (1).

'Whoever with intent to cause injury to any person 9 This section applies
not only to private individuals but also to a police officer who maliciously commences
criminal proceedings against any person or charges such person with an offence or
causes him to be charged falsely (m).

The Patna High Court has held that the fact that the complainant fails to prove
his case is by itself not sufficient to sanction a prosecution under this section. It
must be established satisfactorily in the mind of the Judge or the Magistrate that
the complaint was made with intent to cause injury or that it was a false complaint
made with the knowledge that it was false (n). Where a Sub- Inspector of Police
made a coloured or false report that a certain offence investigated by him was
proved, it was held that the facts stated did not amount to an offence under this
section as it could not be said that he instituted any criminal proceedings against
any person (o). No offence is committed under this section when there is no
intention to set the law in motion against anybody (p).

Failure to prove the case is not the same thing as the institution of a mali-
ciously false case so as to sustain a charge under this section (q).

* institutes or causes to be instituted any criminal proceeding 9 s—

In order to constitute an offence under this section, the false charge must be made
to an officer or to a Court who has power to investigate and send it for trial, and it
must be an accusation made with the intention to set the law in motion (r). Where
the accused said to a police officer, ** I find there has been a theft, I suspect the
persons named and want an enquiry to be made”, held that this did not amount to
a (l) * * 4 charge *; if the statement was false, the offence fell within s. 182 (s). The Lahore
High Court has held that the mere communication of suspicion to the police does
not amount to a charge of criminal offence (t).

Under this section, the act of 4 instituting a criminal proceeding* may be treated
as an offence in itself, apart from 4 falsely charging' a person with having commit-
ted an offence (u).

A Full Bench decision of the Madras High Court has held that a 4 false
charge * in this section must not be understood in any restricted or technical
sense, but in its ordinary meaning, of a false accusation made to any authority bound
by law to investigate it or take any steps in regard to it, such as, giving information
of it to superior authorities with a view to investigation or other proceedings and the
institution of criminal proceedings includes the setting of the criminal law in
motion (v).

(l) Sham Lai, (1887) 14 C. 707 (F. B.) at p. 720.

(m) Nabodweep Chondra Sarher, (1869) 11 W. R. (Cr.) 2.

(n) BhuanKahar , (1922) 26 Cr. L. J. 141 : 83 1. C. 707 : A. I. R. (1926) Pat.

329.

(o) Thakur Ternary, (1900) 4 C. W. N. 347.

(p) Ram Rao Guraro , (1923) 24 Cr. L. J. 910 : 76 I. C* 168: A. I. R. (1923)
Nag. 313.

(q) Cheddi, (1922) 4 Pat, L. J. 703 : 24 Cr. L. J. 316 : 72 I. C. 76 : A. I. R.
(1924) P.379.

(r) Mathura Prasad, (1917) 39 A. 716, following Chenna Malli Gowde, (1903)
27 M. 129; ChinnoRamana Gowd, (1908)31 M. 509; Z or awar Singh, (1911) 8 A. L. J.
1105 ; and in re. Jamoona, (1881) 0 C. 620,

(s) Ibid.

(t) Abdul Gafur, (1924) 0 L. 28.

(u) Nobokristo Ghose, ( 1807) 8 W. R. (Cr.) 87.

(v) Sivan Chetti, (1909) 32 M. 258 (F. B.) at pp. 261 262 overruling Chinna
Ramana Gowd, (1908) 31 M. 606, and following Karim Buksh, (1890) l&C* 574 (F.B.)

SEC. 211 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 383

The Lahore High Court has held that the term * institution ^ in this section
means the institution either hr the accused himself, or by the police or others in
consequence of the accused's action in some criminal Court (w). To prefer a com-
plaint to the police in respect of an offence which they are competent to deal with
and thereby to set the police in motion, is to institute a criminal proceeding within
the meaning of this section (x).

Wilson, J., in delivering the judgment of the Full Court (y) observed : " I agree
that we must take it that the Legislature did not regard the two phrases ' institutes or
causes to be instituted criminal proceeding* and 4 falsely charges ' in the first part of
the section and the phrase * if such criminal proceeding be instituted ' (in the second
part) as co-extensive in meaning but considered that they were, or might be, cases to
which the one would apply and not the other. But I do not think that we are to
suppose that the Legislature meant the phrase to be mutually exclusive in meaning,
so that the institution of criminal proceedings must be by something which is not a
charge, and a charge must be something which is not the institution of the criminal
proceedings. This cannot, I think, be for two reasons. First, because there is
no mode by which a private accused can institute criminal proceedings except by
making a charge ; and if he does not do it by the charge, he never does it at all, to
whatever length the proceedings may go. And secondly, because the last part of the
section speaks of proceedings instituted on a false charge .** The Allahabad
High Court dissented from the Full Bench decision of the Calcutta High Court
and held that where the offence committed does not go further than the making
of a false charge to the police, the making of such false charge does not amount to an
institution of criminal proceedings (z). The Madras High Court followed the said
Full Bench decision of the Calcutta High Court (a). The Bombay High Court
has held that the 'criminal proceedings* and ‘falsely charges* contemplated by this
section must mean proceedings instituted and charges made according to the
provisions of the criminal law in force in British India, though it is conceivable that
any person may be able to institute such proceedings or make such charge while
he is actually in a foreign territory (b).

A complaint under s. 1 of the Workman's Breach of Contract Act (XIV of
1859) which is withdrawn before any order is made by a Magistrate under s. 2 of
the Act either for a refund of the advance paid or for specific performance of the
contract is not a 4 criminal proceeding * within the meaning of this section (c).

‘ or falsely charges any person with having committed an offence *

44 The true test seems to be : Does the person who makes the statement which is
alleged to constitute the * charge ' do so with the intention and object of setting the
criminal law in motion against the person against whom the statement is directed?
Such object and intention may be inferred from the language of the statement and
the circumstances in which it is made '* (d).

The Calcutta High Court by a Full Bench decision held that the Legislature
did not mean the phrases * instituting a proceeding and making a charge * to be
mutually exclusive in meaning so that the institution of criminal proceedings must

(w) Md . Hayat, (1921) P. W. R. No. 6 of 1922 : 23 Cr. L. J. 82 : 65 I. C. 434.

(x) Bonomaly Shah , (1866) 6 W. R. (Cr.) 32.

(y) Karim Buhsh , (1888) 17 C. 574 (F. B.) see Jijibhai Govind , (1896) 22 B. 696.

(z) Bishestvar, 1-6 A. 124, following Pitani Rai t (1882) 5 A. 215, approved

in Sultan Ahmed , (1931) 27 N. L. R. 276 (F. B.) and Parahu t (1885) 5 A. 598 but see
contra Mathura Prasad . (1917) 39 A. 716.

(a) Nanjunda , (1896) 20 M. 79.

(b) In re . Ram Bharati Hira Bharati , (1923) 47 B. 907 ; 25 Bom. L. R. 772 : 25
Cr L' J 333 * 77 I C 189

(c) Hussaina Beari, (1920) 43 M. 443 : 22 Cr. L. J. 13 : 69,1. C. 46.

(d) RoyanKutti, (1903) 26 M. 640 (643, 644), followed’ la Sheikh Abdulla, (1931)
36 C. W. N 1210 ; Kari Gowda, (1894) 19 B. 61.

984

THE INDIAN PENAL CODE [ CHAP. XI

be by something which is not a charge and a charge must be something which is
not the institution of criminal proceedings (*). * *

The mere communication of a suspicion does not amount to the institution
of a criminal charge (0- ' Falsely charging * means a false accusation made to any
authority bound by law to investigate it or to take any step in regard to it (g).
Statements made in the course of an investigation underChap. XIV, Cr. P. Code,
are not * charges * as contemplated by s. 21 1 (h).

Where the’" applicant had no option but to answer the question put to him
by the Magistrate in the enquiry, his deposition cannot be held to be a ‘ charge ’
within the meaning of this section. It has been held by the Calcutta, Madras and
Bombay HighXourts that the words * falsely charges * in s. 21 1 must be construed
along" with* the words which speak of the institution of proceedings in the earlier
part of^the section, and further that the test is whether the person who made the
statement which is alleged to constitute the charge did so with the intention and
object of settingjhe criminal law in motion against the person against whom the
statement undirected (i).

Where a person, who was interested in the matter or had a certain official
responsibility, says to a police-officer : * A tells me that X has committed a certain
offence, and B and C confirm the statement, and I accordingly suspect X * and
follows up that statement by an application to have X's house searched, he prefers
a charge against X. If such charge is false, he may be convicted under this sec-
tion (j)< A mere suggestion to the police that certain houses should be searched
because there is reason to suspect the owners of those houses, does not amount
to ‘ charge * within the meaning fof this"! section (k).*| Gj made a report to
the police that his buffalo had been poisoned and that he suspected GR and AR
of having administered poison. The police reported that there was no case of
poisoning ^and the charge was struck out. GR then brought a complaint under
this section against AG. The Lahore High Court held that the report to the
police was not an institution of criminal proceedings and it could not be said that
any person was charged with having committed any offence, and acquitted the
accused (1).

The Madras High Court has held that the mere despatch of a telegram, falsely
stating that a dacoity had been committed, without mentioning the names of any
persons alleged to have been concerned or suspected of complicity in the offence,
does amount to the institution of a false charge within the meaning of this
section fm).

* knowing that there is no just or lawful ground for such proceeding or
charge 9 s— A person may make a charge or complaint upon evidence which is or
ought not to satisfy a reasonable mind and however rashly he may act in believing

(e) Karim Buksh, (1888) 17 C. 574 (F. B.) at p. 579.

(f) Swaminath Thevan , (1912) M. W. N. 1125 ; 14 I. C. 787 : 13 Cr L T 303 •

Abdul Gaffur, (1924) 8 L. 28. ' J '

(g) Jokri. 29 A. L. J. 177.

(h) In.re. Kodangi, (1931) 61 M. L. J. 960, following Cbinna Ram an a Gowd t (1908)
31 M. 506.

j.

(i) Zorawar Singh, (1911) 8 A. L. J. 1106 (1109, 1110) ; RayanKutti, (1903) 26
M. 640 ; Kan Gowda, (1894) 19 B. 61 ; Karim Buksh, (1888) 17 C. 674 (F. B ) .

(j) Hunooman Lott, (1882) 19 W. R. (Cr.) 6. '

(k) Solaimuthu Pillai v. Murugaih Moopan. (1916) M. W.N. 272 : 16 Cr. L.

423 : 28 I. C. 999, following Rayan Kutti, (1903) 26 M. 640.

0) ? V L - R - No. 26 of 1924, following Mathura

Prasad. (1917) 39 A. 716 : 16 A. L. j 767 : 18 Cr. L. J. 1017 : 42 1. C. 761 and Swami-
nath Thevan, (1912) 1126 ; 13 Cr. L. J, 303 : 14 I. C. 767.

(m) tn re.. Nandamuri Auandayya, (1914) M. W.N. 382: 11 L W 366- 16
Cr. L. J. 622 : 26 1. C. 630.

SEC. 212] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 385

such statement if in fact and truth he does not know at the time he makes the com-
plaint, that there are no ju*t* and lawful grounds for making the complaint, he
cannot be convicted of making a false charge under this section (n).

To secure a conviction under this section it must be established beyond
reasonable doubt that the circumstances are not merely consistent with guilt of the
accused but entirely inconsistent with his innocence (o). The duty of the prose-
cution in a case under this section is to prove by satisfactory evidence that the
charge was wilfully false to the knowledge of the maker of the charge (p).

Under s. 182 the information given by the accused should not only be false
in fact but it must be false to the knowledge or to the belief of the informant. S. 2 1 1 ,
however, on the other hand, does not require that the accused should know or believe
the complaint to be false. It is sufficient if he makes his complaint without any
just grounds and when he acts without due care or caution he comes under this
section (q).

Clause (2)—' 1 and if such criminal proceeding be instituted f t— A Full

Bench of the Calcutta High Court in Karim Baksh's case fr) held that a man, who sets
the criminal law in motion by making a false charge to the police of a cognizable
offence, institutes criminal proceedings within the meaning of this section, and
that if the offence fell within the description in the latter part of the section, he is
liable to the punishment herein provided. Mahmood, J., held that the section is
divided into two parts and the first part relates to two matters, (i) institution of
false criminal proceedings, ( 11 ) falsely charging any person with having committed
an offence. The purview of the second part of the section is, however, limited to
institution of criminal proceedings on a false charge, and does not include the
making of a false charge which falls short of the institution of criminal proceedings.
If a person makes a false charge, his case falls under the first part of the section
irrespective of the fact that the false charge relates to ‘ an offence punishable with
death, transportation for life, or imprisonment for seven years or upwards * (s).

Punishment i — A Magistrate's order for an offence by a wealthy old man,
inflicting on him a fine although lenient ought not to be interfered with (t).

212 . Whenever an offence has been committed, whoever

Harbouring offender — harbours or conceals a prson whom he

knows or has reason to believe to be the
offender, with the intention of screening him from legal punish*
ment,

shall, if the offence is punishable with death, be punished
.. . - with imprisonment of either description for

— if a capital onence ; . 1 • 1 . s . r 1

a term which may extend to hve years, and

shall also be liable to fine ;

(n) PranKissen Bid, (1806) C W. R. (Cr.) 15, see Hicks v. Faulkner, (1878) 8
Q. B. D. 167 (171, 172).

(o) Ram Prosad. (1912) 17 C. VV. N. 379 : 10 C. L. J. 453 : 13 Cr. L. J. 897 : 17
I C 993

(p) Hasan Mina, (1913) 18 C. W. N. 391 : 15 Cr. L. J. 356 : 23 I. C. 723.

(q) Rupchani Bilaram, (1923) 25 Cr. L. J. 1358 : 82 1. C. 718 : A. I. R. (1926)
Sind 184.

(r) (1888) 17 C. 674 (F. B.) (679), followed in Siridhar Naik. (1901) 5 C. W. N.
727 (728) ; Nanjunda Ram, (1896) 20 M. 79 (81) ; Parameswar Lai. (1925), ,4 p. 472 :
Chinna Raman a Gowd, (1908) 31 M. 606.

(s) Pitam Rai, (1882) 6 A. 216.

(t) Muthia Chatty, (1916) M. W. N. 1 : 17 Cr. L. J. 168-: 32 l. C. 638,

31

386

THE INDIAN PENAL CODE

[CHAP. XI

and if the offence is punishable with transportation for life,
if punishable with or with imprifbnmeiit which may extend to
transportation for life, ten years, shall be punished with impnson-
or with imprisonment. ^ q{ Ascription fo r a term

which may extend to three years, and sh$ll also be liable to
fine ;

and if the offence is punishable with imprisonment which
may extend to one year and not to ten years, shall be punished
witn imprisonment of the description provided for the offence for
a term which may extend to one-fourth part of the longest term of
imprisonment provided for the offence, or with fine, or with both.

“ Offence ” in this section includes any act committed at
any place out of British India, which, if committed in British India,
would be punishable under any of the following sections, namely,

302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435,
436, 449, 450, 457, 458, 459 and 460 : and every such act shall,
for the purposes of this section, be deemed to be punishable as if
the accused person had been guilty of it in Britishiindia. ,

Exception . — This provision shall not extend tet any case in
which the harbour or concealment is by the husband or wife of
the offender.

Illustration.

A t kuowing that B has committed dacoity, knowingly conceals B in order to
screen him from legal punishment. Here, as B is liable to transportation for life, A
)s liable to imprisonment of either description for a term not exceeding three years,
and also liable to fine.

Legislative changes : — The third paragraph of the section defining ‘ offence *
was inserted by s. 7 of Act III of 1894.

Procedure s — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first class or by Court by which
the offence is triable if the offence charged be punishable with imprisonment
for 1 year Triable by Court of Session, Presidency Magistrate or Magistrate of
the first class, if the offence charged be capital, or punishable with transportation
for life or imprisonment for 10 years.

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That, on qt about the day of the offence of was

scommitted at (; specify the place) by XY and that you, on or about the

day*of - , at , harboured (or concealed) the said XY know-

ing (or having reason to believe) at the time of said harbouring (or concealing) that
the said XY had committed an offence of ; and that you thereby com-

mitted an offence punishable under s. 212 of the Indian Penal Code and within my

cognizance (or within the cognizance of the Court of Session).

*

And / hereby direct that you be tried (by the said Court) on the said charge.

r A^logom law : — Hale says : M If B commits a felony and comes to the house
of A before II can be arrested, ’and A suffer him to escape without arrest* knowing

SEC. 2131 OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 38T

him to have committed a felony, this doth not make A accessory ; but if he takes
money o( B, to suffer him to escape, this makes him accessory (u).

Hawkins observes .* “ It seems to be clearly agreed (a) that a man shall never
be construed an accessory to a felony, in respect of the receipt of an offender, who
at the time of the receipt was not a felon but afterwards becomes such by matter
subsequent ; as where one receives another who was wounded, (4) a person dan-
gerously ill who happens to die after such receipt. For though the offender be for
special reasons adjudged to some purposes guilty of homicide ab initio, yet he shall
not be so esteemed in respect of any others but himself ; for fictions of law shall
never be carried further than the reasons which introduce them necessarily
require " (v).

Scope : — To justify a conviction under this section it is essential that there
should be offence committed and consequently an offender who has been
harboured or concealed (w).

* Offender * t This word means a person who has contravened the provision
of any criminal law which is punishable either with death, transportation, imprison-
ment or fine (x).

Exception * — The exception extends to a case in which the harbour or
concealment is by the husband or wife of the offender.

213. Whoever accepts or attempts to obtain, or agrees to
Taking gift, etc., to accept, any gratification for himself or any
screen an offender from other person, or any restitution of property
to nimselt or any other person, in considera-
tion of his concealing an offence or of his screening any person
from legal punishment for any offence, or of his not proceeding
against any person for the purpose of bringing him to legal
punishment,

shall, if the offence is punishable with death, be punished
if a capital offence; Wlth imprisonment of either description for
a term which may extend to seven years,
and also be liable to fine ;

and if the offence is punishable with transportation for life,
if punishable with or with imprisonment which may extend
transportation for life, to ten years, shall be punished with im-

. prisonment or either descnption for a term

which may extend to three years, and shall also be liable to
fine ;

and if the offence is punishable with imprisonment not
extending to. ten years,, shall be punished with imprisonment
of the descnption provided for the offence for a term which
may extend to one-fourth part of the longest term of imprison-
ment provided for the offence, or with fine, or with both.

(u) 1 Hale. 018. ‘ ~ “

(v) 2 Hawk, C. 20, S. 35.

(w) Fateh Singh, (18«9) 12 A. 432. following Abiiul Kad»;<W9] 8«A. 2t« (F. B:).

(x) La tow, A. I. R. (1931) A. 33. - '

388

THE INDIAN PENAL CODE

[Cl IA& XI

This section punishes a person who Accepts or attempts to obtain any gift or
gratification for himself or for any other person for compounding a non^compoud-
able offence or for screening an offender. The next section is a counterpart of
this section. S. 214 punishes the person offering gift of restoration of property
in consideration of concealing an offence or of screening ah offender, in other
words, for compounding a non-compoundable offencer

Procedure Cognizable— Warrant— Bailable— Not compoundable— TQriable
by Court of Session if punishable with capital sentence; — Triable by Cdurt of
Session, Presidency Magistrate or Magistrate of the first class if punishable
with transportation for life or with imprisonment for 10 years ^Triable by
Presidency Magistrate or Magistrate of the first class or Court by which the
offence is triable if the offence falls under the last clause.

Charge s — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That, on or about the day of , at , one XY committed

the offence punishable with , namely, the offence of — and

that you on or about the day of , at , accepted

(or attempted to obtain, or agreed to accept) a certain gratification for yourself or

for any other person namely , (or restitution of certain property to

yourself or any other person to wit ) in consideration of your con-

cealing the said offence (or screening the said XY from legal punishment for the said

offence, or not proceeding against the said for the purpose of bringing

him to legal punishment) and that you thereby committed an offence punishable
under s. 213 of the Indian Penal Code, and within my cognizance (or cognizance
of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Scope : — Upon the plain words of this section a promise or agreement or
pretence of concealing or screening is not punishable. For a conviction under
this section actual concealment or screening even for a short time may be sufficient,
but there must be some concealment or screening actually proved (y).

For further commentary see notes to s. 214.

For a conviction under this section it is essential to prove that the person
screened or attempted to be screened from legal punishment has been guilty of an
offence and not when there is thereby a suspicion of the accused having committed
an offence (z).

For further commentary see notes to s. 214.

214* Whoever gives or causes, or offers or agrees to give
Offering gift or or causes, any gratification to any person, or

restoration of property to restore or cause the restoration of any
screening 5 offender— of property to any person, in consideration^
. that person s concealing an offence, or of his

screening any person from legal punishment for any offence, or
of his not proceeding against any person for the purpose of bring-
ing him to legal punishment,

W - - _ ' L" - -I

(yi M Per Mukerji, J.. in Hem Chandra Mukerji, (1824) 62 C. 161 : 40 C. L. 1.
$78 R. (1926) Cal. 86. J

' (z) GMs Myth*. (1896) 2SC. 42.

SEC. $14 } OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE S8ft

shall, if thecoffence is pufiishable with death, be punished
if a capital offence; with imprisonment of either description for
, a term which may extend to seven years,
and shall also be liable to fine ;

and if the offence is punishable with transportation for life,
or with imprisonment which may extend to
ten years, shall be punished with imprison-
ment of either description for a term which
may extend to three years, and shall also be

if punishable with
transportation for life,
or with imprisonment .

liable to fine ;

and if the offence is punishable with imprisonment not ex-
tending to ten years, shall be punished with imprisonment of the
description provided for the offence for a term which may extend
to one-fourth part of the longest term of imprisonment provided
for the offence, or with fine, or with both.

Exception . — The provisions of sections 213 and 214 do not
extend to any case in which the offence may lawfully be com-
pounded.

( Illustrations ) Repealed by Act X of 1882.

Legislative changes : — This exception was substituted for the original ex-
ception by the Indian Penal Code Amendment Act, 1882 (VIII of 1882), s. 6 and
the illustrations were repealed by Act X of 1882.

Analogous law : — According to English law, “ .... the law will permit a com-
promise of all offences, though made the subject of a criminal prosecution for
which offence the injured party might recover damages in an action ” (a). Even
if a person injured by a felon is debarred from proving in the bankniptcy of the
felon in respect of the injury until he has prosecuted the felon, the obligation to
prosecute does not extend to the trustee in bankruptcy, although that bankruptcy
occurred after a proof in respect of the injury had been tendered by the injured
person himself (b). The rule of law is that whenever an agreement is made in
consideration of a promise not to prosecute such an agreement is made for an illegal
consideration and it cannot be enforced (c).

An indictment for compounding a felony need not allege that the defendant
resisted from prosecuting the felon. The offence of compounding a larceny may
be committed by a person other than the owner of the goods stolen or a material
witness for the prosecution (d). If in an indictment for compounding felony, it
be averred that the defendant did desist and from that time hitherto hath desisted
from all further prosecution, and it appears that after the alleged compounding
he prosecuted the offender to conviction, the Judge will direct an acquittal (e).

Procedure : — Non-cognizablc (f)— Warrant— Bailable — Not compoundable —
Triable by Court of Session — if the case falls under the 1st clause ; — by Court of
Session, Presidency Magistrate or Magistrate of the first class, if the offence falls

(a) Kier v. Lceman, 6 Q. B. 308.

(b) Ex parte Ball, (1897) 10 Ch. D. 667.

(c) Jones v. Merionethshire Building Society, (1891) 2 Ch. 687.

(d) Burgess, (1886) 16 Q. B. D. 141.

(e) Stone, (1880) 4 C. and P. 379.

(I) The words ' shall not arrest without warrant ' were substituted for ‘ may
arrest without warrant ‘ by Act XVIII of 1923.

390

THE INDIAN PENAL CODE

[ CHAP.* XI

under the 2nd clause ; and if the offence falls under the laft clause — Triable by
Presidency Magistrate or Magistrate of the first class or •> Court by Which the
offence is triable.

Charge : — I ( name and office of Magistrate , etc.) hereby charge ymi%name
of accused ) as follows : —

That on or about the day of , at , you . gave

(or caused or offered or agreed to give or cause) any gratification, to wit — (or restored
or caused the restoration of any property) to XY in consideration of the said XY's

concealing the offence of under section of which

is punishable with [(or of XY's screening you (or any person) from legal

punishment for the said offence or of his not proceeding against you or any other
person for the puipose of bringing you (or him)] to legal punishment : and you
thereby committed an offence punishable under s. 214 of the Indian Penal Code
and within my cognizance (or the cognizance of the Court of Session or the High
Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Scope: — Oldfield, J., pointed out in a Full Bench decision of the Allahabad
High Court that the object of the law is to ensure the conviction of offenders for
offences committed and not to punish persons who, acting on an erroneous impres-
sion that some one has committed an offence, cause the disappearance of what they
believe might be used as evidence (g). The offence contemplated by s. 213 or
s. 214 consists in the corrupt motive which is brought into play as much as in
the delay to criminal justice. It consists in the compounding of an offence by
some agreement not to bring criminal to justice, and these sections intend to
punish tho*e who make profit out of a public wrong. If the facts found
in the case prove that there has been an actual compounding of an offence,
and there is superadded to it an acceptance of, or attempt to obtain, or agreement
to accept, a gratification or restitution as a consideration for the compounding,
the offence is made out. Actual concealment or screening even for a short time
may be sufficient, but there must be some concealment or screening actually
proved (h).

Concealing an offence or of screening an offender from legal punish-
ment: — These words presuppose the actual commission of an offence or the
guilt of the person screened from punishment (i). The Bombay High Court has
followed Saminatha's case (i) and held that there could be no screening of
an offence which was not proved to have been committed (j).

Where A had a license under the Burma Forest Act, for one saw-pit but worked
two saw-pits, B, a forester, discovered this breach of the rules and told A that he
would be prosecuted, whereupon A offered him Rs. 5 not to proceed with the case,
the offence under the Forest Act being compoundable, held that the offer of bribe
to B did not amount to an offence under this section (k).

Exception In order that the exception may operate, two conditions must
combine. The first is the immateriality of the offender's intention accompanying
the act constituting the offence ; and the second is the possibility of a civil action
by the person injured (1).

(g) Abdul Kadir, (1880) ft A. 279 (F. B.).

(h) Per Mukerji, J., in Hern Chandra Mukerjee , (1924) 52 C. 161 at p. 156 :
40 C. L. J. 278 : A. I. R. (1925) Cal. 86.

(i) Saminatha, (1890) 14 M. 400 (403) ; Joynarain Patro, (1873) 20 W. R. (Cr.)

66 .

(j) Sanalal Lallubhai, (1913) 37 B. 668 : 15 Bom. L. R. 694 : 14 Cr. L. J. 463 :
20 I. C. 613.

Ik) Kyasone, (1912) 6 L. B. R. 48 : 13 Cr. L. J. 674 : 15 I. C. 990.

(1) Ramimat , (1876) 1 B. 147 (148).

SEC. 21B] OF FAT SR EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 391

4 the offence may lawfully be compounded ’ — see s. 345 (1), Cr. P. Code.
Prinsep, J., in Murrays case (m) observed : “ The compounding of an offence
signifies that the person against whom the offence has been committed has received
< 3 eome gratification, not' necessarily of a pecuniary character, to act as an induce-
*ment fo^his desiring to abstain from a prosecution, and the law (section 345, Code
of Criminal Procedure) provides that if the offence be compoundable, a composi-
tion shell have the effect of an acquittal. "

215. Whoever takes or agrees or consents to take any
Taking gift to help to gratification under pretence or on account
recover stolen property, of helping any person to recover any move-
etc ' able property or which he shall have been

deprived by any offence punishable under this Code, shall, unless
he uses all means in his power to cause the offender to be appre-
hended and convicted of the offence, be punished with imprison-
ment of either description for a term which may extend to two
years, or with fine or with both.

Scope : — Even the taking of a gratification under pretence of helping a person
to recover moveable property of which he has been deprived by an offence under
the Code is not punishable under this section if the taker has used all means in
his power to cause the offender to be apprehended and convicted of the offence (n).

** The ingredients necessary to constitute the offence are (I) that the property
which it is sought to recover must have been lost to the owner by the commission
of an offence and this must be known to the person who takes the gratification
and (2) that it must be proved that the person taking the gratification refrained
from using all means in his power to bring the offender to justice. If either of
these elements is wanting, this section does not apply (n). The scope of the section
cannot be better described than in the words of Mayne : ‘ The primary aim of

8. 215 is to punish all trafficking in crime by which a person knowing that property
has been obtained by crime and knowing the criminal makes a profit out of
the crime while screening the offender from justice. It is not an offence to take
money from another in order to help him to find the property and to convict the
thief. It is an offence for one who knew of the commission of the crime and who
could at once have informed upon the offender to wait till a reward is offered
and then to take money from the owner of the property under colour of getting the

E roperty back for him. The section is not intended to apply to the actual thief
ut to some one who being in league with the thief who receives some gratification
on account of helping the owner to recover the stolen property without at the same
time using all the means in his power to cause the thief to be apprehended
and convicted of the offence. * It was held in Ram Naresh Rii's case ( 0 ) that
the accused could not be convicted under this section. In that case the accused
demanded and obtained from the complainant rupees fifty and restored to him
two bullocks which had strayed but the prosecution did not prove that the bullocks
had been lost by the commission of an offence and that the accused was endeavour*
ing to screen the offender from justice and not using all means in his power to
cause the offender to be apprehended." (p)

The primary aim of the section is to punish all trafficking in crime, by which
a person knowing that property has been obtained by crime, and knowing the

(m) (1893) 21 C. 103 (112).

(n) H$m Chandra Mukherji, (1924' 52 C. 151 : 40 C. L. J. 278 : A. I. R. (1925)
Cal. 85.

(o) Ram Naresh Rai, (1931) 54A. 45 : (1931) A. L. J. 103 ; Mangu, (1927) 50
A. 186.

(p) 37 C. W. N. notes xii

392 THE INDIAN PENAL CODE [ CHAP. Xl

criminal, makes a profit out of the crime, while screening the offender from justice.
The section is not intended to apply to the actual thief, but to some one who being
in league with the thief, receives some gratification on account of helping the owner
to recover stolen property without, at the same tome, using all the means m»h%
power to cause the thief to be apprehended and convicted of his offence (q).

Before a conviction under this section can be sustained there must be evidence
to show that the loss of the moveable property was by means of the commission
of an offence punishable under the Penal Code (r).

Procedure : — Cognizable (s) — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first class.

The prosecution must prove that the person who is willing to take the grati-
fication and the person giving it has agreed not only as to the object for which the
gratification is to be given but also as to the shape and form the gratification is
to take (t). The object to screen the offender must be proved (u).

Where a person takes a ransom for the restoration of stolen property, and
fails to return that property to the person who paid him the ransom and the facts
show an offence under s. 420 of the Code, though they also establish an offence
under this section, held that he can be convicted under s. 420 provided he was
duly charged with it (v).

Attempt : — S had some of his buffaloes stolen. H proposed to S that if S
gave him Rs. 200 and promised to take no steps to prosecute the thieves, he would
procure the restoration of the stolen buffaloes. S, however, did not agree to the
proposal and reported the matter to the police, held that the attempt to take a
gratification within the meaning of this section necessarily includes the idea of a
giver and taker and it is no more an attempt to commit an offence but a substantive
offence on the language of this section and it was further held that the accused
was guilty under this section (w).

•Whoever 1 : — This section was never intended to apply to the actual thief, but
to some one who, being in league with the thief, receives some gratification on
account of helping the owner to recover the stolen property, without, at the same
time, using all the means in his power to cause the thief to be apprehended and
convicted of the offence (x).

Taking gift to help to recover stolen property x— ' The object of the
legislature in the clause, * unless he uses all means in his power to cause the offender
to be apprehended and convicted of the offence \ was to exempt from liability to
punishment a person who is acting dishonestly and not to exempt the thief (y).

In order to constitute an offence under this section it is necessary that the
moveable property in question should have been out of the possession of some per-
son by means of an offence punishable under this Code (z).

(q) Mangu, (1047) 60 A. 186 : 26 A. L. J. 806 : A, I. R. (1928) A. 22.

(r) Bangcshwari Ahir, (1931) 11 P. 392.

(s) The words ' may arrest without warrant * were substituted for the words
'shall arrest without warrant * by Act XVIII of 1923.

(t) Chittar, (1898) 20 A. 389.

(u) Mangu t (1927) 50 A. 180.

(v) Nga Shan , (1922) 11 L. B. R. 422 : 24 Cr. L. J. 529 : 73 I. C. 146 : A. I. R.
(1923) Rang. 37.

(w) Hargayan, (19 22) 45 A. 159 : 20 A. L. J. 927 : 25 Cr. L. J. 127 : A. I. R.
(1923) Ail. 83 ; Chittar, (1898) 40 A. 389.

(x) Muhammad Ali t (1901) 23 A. 81, followed in Godha t (1926) 8 L. 203 ;
Nulliyeera Thevan , (1914) 26 M. L. J. 598; Mangu, (1927) 60 A. 186: 25 A. L. J.
806: A. I. R. (1928) 422.

(y) Nga Shwe Myo t (1914) 2 U. B. R. 44 : 10 Cr. L. J. 421 : 28 I. C. 997.

<*) Sharfa, (1914) P. R. No. 9 of 1915 (Cr.) : 16 Cr. L. J. 641 : 29 1. C. 009.

SEC. 216] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 393

Where the facts found were that the prisoner knew the thieves and assisted
in endeavouring to purchase the stolen property from the thieves, not meaning
to bnng them to justice, held that these facts were sufficient to constitute an offence
described in the Statutes 7 and 8 Geo. 4, c. 29, s. 58 (a).

Harbouring offender
who has escaped from
custody or whose ap-
prehension has been
ordered—

216. Whenever any person convicted
of or charged with an offence, being ip lawful
custody for that offence, escapes from such
custody,

or whenever a public servant, in the exercise of the lawful
lowers of such public servant, orders a certain person to be appre-
lended for an offence, whoever, knowing of such escape or order
: or apprehension, harbours or conceals that person with the inten-
tion of preventing him from being apprehended, shall be punished
in the manner following, that is to say,

if the offence for which the person was in custody or is
, „ ordered to be apprehended is punishable

i a capi a o ence , w |tli death, he shall be punished with

imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine ;

if the offence is punishable with transportation for life,
u punishable with or imprisonment for ten years, he shall
transportation for life be punished with imprisonment of either
or with imprisonment. description for a term which may extend

to three years, with or without fine ;

and if the offence is punishable with imprisonment which
may extend to one year and not to ten years, he shall be punished
with imprisonment of the description provided for the offence
for a term which may extend to one-fourth part of the longest
term of the imprisonment provided for such offence, or with fine,
or with both.

“ Offence ” in this section includes also any act or omission
of which a person is alleged to have been guilty out of British
India, which, if he had been guilty of it in British India, would
have been punishable as an offence, and for which he is, under
any law relating to extradition, or under the Fugitive Offenders
Act, 1881, or otherwise, liable to be apprehended or detained in
custody in British India ; and every such act or omission shall
for the purposes of this section, be deemed to be punishable as if
the accused person had been guilty of it in British India.

Exception . — This provision does not extend to the case in
which the harbour or concealment is by the husband or wife of the
person to be apprehended.

Offence — ». 40.

Public servant — *. 21.

(a) John Poseoe, (1849) 18 L. J. (M. C.). 186.

394

THE INDIAN PENAL CODE

[CHAP. XI

Legislature changes The last paragraph before the exceptim defining
‘ offence # was inserted by the Indian Criminal Law Amendment Act»; 1868
(X of 1886), s. 23.

Procedure : — Cognizable — Warrant— Bailable — Not compoundable ; if the
case comes under the Istor 2nd clause— Triable by Court of Session, Presidency
Magistrate or Magistrate of the first class ; if the offence be punishable with im-
prisonment for one year and not for ten years— Triable by Presidency Magistrate
or Magistrate of the first class — or by Court by which the offence is triable.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That on or about the—; day of , at , one XY

was charged with and convicted of an offence under section by the

Court of— (or one XY was ordered to be apprehended for an offence

punishable under section by a public servant in the

exercise of his lawful powers as such public servant and that you knowing of the
escape of the said XY from custody (or knowing of the said order for apprehension)

on or about the day of , at , harboured (or

concealed) the said XY with the intention of preventing him from being appre-
hended, and that you thereby committed an offence punishable under s. 216 of the
Indian Penal Code, and within my cognizance (or the cognizance of the Court of
Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Scope r—* In order to convict an accused person under this section, it must be
shown that the warrant to arrest the alleged offender was a legal one, and that the
harbouring was with the intention of preventing him from being apprehended (b).
Finding of guilty against the person harboured is not an essential ingredient of an
offence under this section. Acquittal of such a person cannot affect the legality of
the conviction although it may be taken into consideration in awarding sentence (c).

Harbouring an offezLcfcr who has escaped from custody— see commentary
on s. 212.

The word * harbour * does not only mean to provide shelter, food or clothing,
but includes * the assisting of a person in any way to evade apprehension/ It has
been further held that it is nowhere laid down that there is any time limit for the
duration of the offence, which is complete as soon as it is committed (d).

In order to establish an offence under this section it is necessary to prove that
a public servant in the exercise of his lawful authority had ordered a certain person
to be apprehended for an offence and that the person charged with harbouring
him had done so knowing of such order with the intention of preventing him from
being apprehended (e).

The Lahore High Court has held that the mere giving of a meal to a proclaimed
offender is not an offence under this section (f).

4 orders a person to be apprehended for an offence 9 r— This expression
means only that the offence is the cause sine qua non of the apprehension (g).

(b) In re . Srifad G. Chandravarhar , (1927) 62 B. 161 : 30 Bom. L. J. 70 : 29
Or. L. J. 317 : A. I. R. (1928) B. 184 ; in re. Rangaswami Goundan, (1927) 62 M. 73.

(c) In re. Rangaswami Goudan , (1927) 62 M. 73 : 66 M. L. T. 603 : (1928) M. W. N
688 : A. I. R. (1928) M. 1147.

, % (4) Singh, (1922) 6 L. L. J. 329 : 24 Cr. L. J. 66 9 : 73 I. C. 691 : A. I. B.

(1923) Lah. 223. ^

(e) Balwant Singh, (1913) 16 Cr. L. J. 349 : 23 I. C. 701 (Oudh).

(f) Huham Singh, (1923) 6 L. L. J. 481. ' ;

(g) SatanjiKar, (1909) 11 CL. J. 109.

SECS. 216a-216B ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 396

Applicability of s. 110, Cr. P. Code t— ' The Legislature did not desire
that the provisions of s. 110, Cr. P. Code, should be applied to ft harbouring of
dacoits, the intention being that such ft man should be dealt with under the sub-
stantive provision of the Indian Penal Code(h).

216* A. Whoever, knowing or having reason to believe
■ that any persons are about to commit or have

ing robbL f or Kts"' recently committed robbery or dacoity,

harbours them or any of them, with the
intention of facilitating the commission of such robbery or dacoity,
or of screening them or any of them from punishment, shall be
punished with rigorous imprisonment for a term which may ex-
tend to seven years, and shall also be liable to fine.

Explanation. — For the purposes of this section it is imma-
terial whether the robbery or dacoity is intended to be committed,
or has been committed, within or without British India.

Exception. — This provision does not extend to the case in
which the harbour is by the husband or wife of the offender.

Robbery — 391.

This section provides for enhanced punishment as the offence is that of har-
bouring robbers.

Legislative changes j— * This section and s. 2 16-B were inserted by the Indian
Criminal Law Amendment Act, 1894 (III of 1894) s. 8.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge: — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , knowing (or having

reason to believe) that certain persons namely. A, B, C, D, E were about to commit
(or had recently committed) robbery (or dacoity) harboured him or them (mention
the robber or robbers , dacoit or dacoits) with the intention of facilitating such robbery
(or dacoity) [(or of screening him or them (mention robbers or dacoits screening)] from
punishment and that you thereby committed an offence punishable under s. 216-A
of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Where applicant had lent to some dacoits his pony merely to facilitate them
in removing the loot, the Allahabad High Court held that the applicant could not
be charged under this section with having harboured the dacoits (i).

216~B* In sections 212, 216 and 216-A the word 44 harbour ”
Definition of * har- includes the supplying a person with
bour' in sections 212, shelter, food, drink, money, clothes,
210 and 216A. arms, ammunition or means of conveyance,

dir the assisting a person in any way to evade apprehension.

[h) A Haiti Lai Awasthi, (1928) 61 A. 469 : 27 A. L. J. 03.

(i) Damri, (1924) 22 A. L. J. 496.

398

THE INDIAN PENAL CODE

[CHAP. XI

* harbour * i— False information to the police with respect to a proclaimed
offender or warning him of the approach of police amounts to a harbouring/ (j).

'assisting a person in afiy way to evade apprehension* These words
* or assisting a person in any way to evade apprehension * must be meant to point *
out some method ejusdem generis with those specified in the earlier portion of the
section. They will not include the assisting of an accused person to escape by
merely telling lies to the police as to his whereabouts (k). The Calcutta High
Court has not followed the said decision of the Allahabad High Court. Teunon,
J., held : M As the section has been framed, we are not prepared to hold that the ways,
in which assistance may be rendered, must, for the purpose of the section, be re-
stricted to methods which may properly be regarded as ejusdem generis or of like
nature with supplies of food or of other necessary articles " (1).

217. Whoever, being a public servant, knowingly dis-
Pubiic servant dis- obeys any direction of the law as to the way

with^fntent** to ° sav™ * n * s to conduct himself as such

££son fromVunishment public servant, intending thereby to save or
or property from forfei- knowing it to be likely that he will thereby
ture save any person from legal punishment,

or subject him to a less punishment than that to which he is liable,
or with intent to save, or knowing that he is likely thereby to save,
any property from forfeiture or any charge to which it is liable by
law, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine or with both.

This section and the next three sections deal with the disobedience by public
servants to the duty they owe to the public.

This section is analogous to s. I66» supra, but while the intention under that
section is to cause injury to any person, the intention under this section is to
save a person from legal punishment or save one’s property from forfeiture or
charge.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge The charge must distinctly state what the direction of the law
was which the accused disobeyed, and how he disobeyed it (m).

Form of charge : — I ( name and office of Magistrate, etc.) hereby charge you
(name of accused) as follows: —

That on or about the day of , at , you being

a public servant, namely , knowingly disobeyed the direction of the law

as to the way in which you were to conduct yourself as such public servant, to wit

— -( specify the direction of law) intending thereby to save . —

(or knowing it to be likely that you will thereby save ) from legal punish-

ment [or subject him to a less punishment than that to which he was liable, or with
intent to save, (or knowing that you were likely thereby to save some property to
wit from forfeiture or any charge to which it is liable by law)]

(j) Tara Singh, (1925) 7 L. 30.

(k) Hussain Baksh, (1903) 26 A. 261.

(l) Much* Mian, (1917) 21 C. W. N. 1062 : 26 C. L. J. 141 : 18 Cr L I 731 • 40

feVf 94MolloWed in r "‘ *****

(m) Bohan Khan Valad Mhashoji, (1877) 2 B. 142.

SEC, 218 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 397

and that you thereby committed an offence punishable under s. 217 of the Indian
Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Scope s — It is sufficient for the purpose of a conviction under this section
that the accused has knowingly disobeyed any direction of the law as to the way in
which he is to conduct himself as a public servant, and that he should have done
this with the intention of saving a person from legal punishment, and that it is
not further necessary to show that in point of fact the person so intended to be
saved had committed an offence or was justly liable to legal punishment (n).

Public servant disobeying a direction of law to screen offender or save
him from punishment or save his property from forfeiture or charge r—

The direction of law mentioned in this section means a positive direction of law,
such as those contained in Ss. 89 and 90 of the Criminal Procedure Code, and
cannot be made to extend to the more general obligation by which every subject is
bound not to stifle a criminal prosecution (o).

The intention of the accused is an essential ingredient of the offence (p).

Where a Patel did not knowingly disobey any direction of the law as to the way
in which he should conduct himself or that he knew it to be likely that by tearing up
the panchnama he would save any person from legal punishment, held , he was not
guilty (q).

A police constable who retained for himself a piece of gold found in search for
stolen property but not proved to be a part of stolen property and failed to report
his possession to his superior officers under s. 523 of the Code of Criminal Proce-
dure, was found guilty under this section (r).

218. Whoever, being a public servant, and being as such
Public servant fram- public servant, charged with the preparation
ing incorrect record or of any record or other writing, frames that
save" 8 person nten from record or writing in a manner which he knows
punishment or property to be incorrect, with intent to cause, or
from forfeiture. knowing it to be likely that he will thereby

cause, loss or injury to the public or to any person, or with intent
thereby to save, or knowing it to be likely that he will thereby
save, any person from legal punishment, or with intent to save,
or knowing that he is likely thereby to save, any property from
forfeiture or other charge to which it is liable by law, shall be
punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.

This section is analogous to s. 167, ttxpra, but while under that section the
intention is to cause injury to any person, here the intention is to save any person
from legal punishment or save any property from forfeiture or other charges.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable— Tri-
able by Court of Session.

(n) Amiruddin, (1878) 3 C. 412.

(o) In re. Raminihi, (1877) 1 M. 260 (267).

(p) Shama Charan, (1867) 8 W. R. (Cr.) 27.

I C ( 3oi Narain Bha ' Buia B * ai ‘ < 1913 ) 16 Bom - L R - 578 : 14 Cr. L. J. 441 : 20

(r) In re. B. Datappa. (1916) 16 Cr. L. J. 46S : 29 1. C. 86.

308

THE INDIAN PENAL CODE

[CHAP. XI

Sanction s—A member of the union committee can be removed from his
office by a commissioner so no sanction under s. 197, Criminal Procedure Code, is
required (s).

Charge i — For the purpose of a charge under this section the actual guilt or#
otherwise of the alleged offender is immaterial. It is quite sufficient that the com-
mission of a cognizable offence has been brought to the notice of the accused (t).

Form of charge I ( name and office of Magistrate , etc. ) hereby charge you
( name of accused) as follows : —

That you, on or about the — — day of being a public

servant to wit -, in the department, and being as such public servant

charged with the preparation of (specify record or other writing) framed the said

record (or writing) in a manner which you knew to be incorrect, namely, ( describe
how or why it was incorrect) with intent thereby to cause or knowing it to be
likely that you would thereby cause loss (or injury) to the public [(or to any person

to wit ) (or with intent thereby to save or knowing it to be likely that

you would thereby save one from legal punishment or knowing that

you are thereby likely to s^ve certain property, to wit from forfeiture

or from a charge to which it was liable by law)] and that you thereby committed
an offence punishable under s. 218 of the Indian Penal Code and within the
cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

Joinder of charges -Where the accused, a Sub-Inspector of Police, took
charge of a certain property belonging to a deceased person and subsequently re-
turned a greater portion to the heirs but misappropriated certain items and des-
troyed and altered his diary and lists in order to show that those articles were never
received and was charged in one trial under Ss. 218, 403, 409 and 477, held ,
the joinder was not illegal as the charge related to one transaction (u).

Public servant framing incorrect record or writing with intent to save
person from punishment or any property from forfeiture r— The gist of
the section is the stifling of truth and the perversion of the course of justice in cases
where an offence has been committed. It is not necessary even to prove the inten-
tion to screen any particular person. It is sufficient that he knows it to be likely
that justice will not be executed and that some one will escape punishment for the
offence (v).

A conviction under this section can be maintained only when it was established
that during the investigation the accused recorded statements which were not made
before him or destroyed or altered the statements that were actually made, or made
a record of circumstances which, as a matter of fact, did not appear before him.
Where the Sub-Inspector recorded what was stated before him and he recorded what
he actually witnessed and where it was possible that he had a motive for recording
the statement made before him knowing them to be false, the Lahore High Court
held that it is no ground for a conviction under this section (w).

Where the accused was not charged with the preparation of a statement Ex . Z)
and in point of fact fw did not frame it but he intentionally aided 5, another clerk,
in framing the record incorrectly and with a fraudulent intent, held , he was not less

(s) Muhammad Yasin , (1924) 29 C. W. N. 660.

(t) Moti Ram , (1924) 7 L. L. J. 331 : 26 Cr. L. J. 837 : 86 I. C. «6l : A 1 R
(1926) L, 461.

(u) Bilash Chandra Banerji, (1923) 26 Cr. L. J. 343 : 77 1. C. 231.

(v) Ameer Khan Mahamad Khan, (1921) 23 Bom. L. R. 823 : 22 Cr L T 609*

63 1. C. 145. *

(w) Moti Ram, (1924) 7 L. L. J. 331 : 26 Cr. L. J. 837 : 86 I. C. 661 : A. I. R.
(1926) L. 461.

SEC. 218] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 899

guilty of abetment of the offence described in this section because S had not any
guilty intention or knowledge in the matter (x). Where the accused, a police-officer
in charge of a thana, at first took down the report which was made to him but sub-
sequently destroyed that report and framed another false report, held that he was
guilty under this section as he framed a record which he knew to be incorrect know-
ing it to be likely he would thereby cause injury to the public (y).

A pay-sheet drawn by a railway officer and setting out certain sums as due by
the railway to certain coolies described as working in a special gang is a record
within the meaning of this section (z).

Where a Police Inspector had been charged with framing an incorrect record
in that he entered in his diary that certain cartmen told him that 4 they were not
beaten by dacoits * while in fact they told him that * they were beaten by dacoits,’
held that this by itself is not sufficient to sustain a conviction under this section,
but where he substitutes fresh note books, he bona fide is open to question and
he must be deemed to have framed an incorrect public record intentionally (a).

Charged with the preparation of any record:— The word "charged*
in this section is not restricted to the narrow meaning of * enjoined by a special
provision of law,’ but includes cases where a public servant is bound by the practice
of his office, or the commands of a superior as to what he is to do under certain cir-
cumstances (b).

Charge under this section was not made out where the accused was not charged
with the preparation of the statement (c).

A public servant, a clerk in the office of a Municipality in charge of the
Municipal records, having been required to produce certain documents and being
unable to do so, fabricated and produced similar documents with the intention of
screening himself from punishment, held that the fabricated petitions were not
records or writings with the preparation of which the accused being a public ser-
vant, was charged, so as to enable his offence of fabrication to fall within the meaning
of this section nor are the fabricated papers forgeries as defined in s. 463, but if the
fabrication was done with the intention stated in s. 192 he will be guilty under
s. 193 (d).

Where a Police Inspector interpolated some entries in his diary to conceal his
conduct, held that he was not punishable under this section (e). A police-officer
negligently or improperly submitting an incorrect report of a local investigation
may be punished under s. 29 of Act V of 1861 in cases where the proof is insufficient
to bring the case under s. 218 (f).

* with intent to cause, or knowing it to be likely that he will thereby
cause loss or injury to the public or to any person or with intent thereby
to save, or knowing to be likely that he will thereby gave any person from
legal punishment 9 : — The intention is an essential ingredient in the offence con-
templated by this section (g).

(x) ~ Brijmohan Lai, (1875) 7 N. W. P. H. C. R. 134.

(y) Mahomed S hah Khan, (1898) 20 A. 307.

(z) Kesari Mai , (1914) 15 Cr. L. J. 502 : 24 I. C. 590.

(a) Ramaswatny Iyenger, (1911)M.W.N. 44.

(b) Deodhur Singh, (1899) 27 C. 144 (151), followed in Nadha Mai v. Abdul Haq ,
L. 159 A. I. R. (1920)

(c) Me hark an AH Khan v. Sito Ram , (1929) 27 A. L. J. 512.

(d) Masshar Husain , (1883) 5 A. 553 (554) ; Chinakanu , (1899) I Weir 197.

(e) Gauri Shankar, (1883) 6 A. 42, overruled bv Nandhisore, (1897) 19 A. 305

(f) Barodakant, (1870) 15 W. R. (Cr.) 17.

(g) Shamachurn Roy, (1867) 8 W. R. (Cr.) 27.

400 THE INDIAN PENAL COMF> [ CHAP. XI

This section contemplates the wilful falsification of a public document with
intent thereby to cause loss or injury and this means by the document itself or
by some transaction with which it is essentially connected (h).

Where a person is charged under this section with intent to save offenders
from punishment, the Judge misdirects the Jury if he tells them that the matter to
be considered by them was whether the alleged offenders are guilty. The issue
to be tried is whether such alleged offenders used the diaries with the intention as
specified in the section. It is illegal to use the diaries as substantive evidence, and a
substantial and important misdirection to read them to the Jury (i).

Where a police-officer interpolated some entries in his diary and the intention
was to conceal his conduct, he was held not guilty under this section because a
person cannot make evidence for himself so as to take advantage of it when he is
subsequently accused of an offence (j).

Where a report of the commission of a dacoity was made at a thana and the
police-officer in charge of the thana at first took down the report which was made
to him but subsequently destroyed that report and framed another and a false
report of the commission of a totally different offence to which he obtained the
signature of the complainant and which he tried to pass off as the original complaint,
held , the police-officer was guilty under this section and s. 204 (k).

4 any person 9 " In our opinion there is no reason why it should be an
offence for a public servant to make a false record in order to save another person
from legal punishment. If the Legislature had intended that this section should
only apply when the intention was to save some person other than the public ser-
vant, it would have been easy to insert the word 4 other * between the words * any *
and 4 person.’ It appears to us that the appellant, who was a public servant, did
not cease to be a person when he made a false entry in his diary for the purpose of
saving himself from punishment. Two authorities have been cited to us in this
Court, Gauri Shanker , 6 All. 42 and Giridhari Lai , 8 All. 653. In our opinion
the appellant committed the offence under s. 218, we dismiss the appeal ” (1).

Legal punishment : — Where a chowkidar was charged under this section
with having made a false entry in a chowkidaree attendance book, the Calcutta High
Court held that the term 4 legal punishment * was not intended to apply to a case
of this kind, and further held that if the chowkidar were found to have been absent
he could only be fined by his superior in the police (m).

219 . Whoever, being a public servant, corruptly or mali-

Public servant in judi- y .. . * ^ ^

ciai proceeding corrupt- ot a judicial proceeding, any report, order,
iy making report, etc verdict, or decision which he knows to be

contrary to law. contrary t<? l aW . shall be punished with

imprisonment of either description for a term which may extend
to seven years, or with fine, or with both.

Public servant — s. 21. Judicial proceedings— s. 193.

(b) Ramchandra, (1884) Rat. Unrep. Cr. C. 201.

(i) Hurdut Sarnia, (1867) 8 W. R. (Cr.) 68.

(j) Gouri Shanker, (18SG) C A. 42 (44) overruled by Nandhishore, (1807) 10

not

(k) Mohammad Shah Khan, (1808) 20 A. 307.

(l) Nandhishore, (1807) 10 A. 306; where Giridhari Lai, (1886) 8 A. 663
followed.

(m) Junfle Loll, (1873) 10 W. R. (Cr.) 40.

was

SEC. 220 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 401

This section relates to corrupt or malicious exercise of the power by a public
servant by making or pronouncing* in any stage of a judicial proceeding, any
report, order, verdict or decision which he knows to be contrary to law.

Scope : — This section contemplates some wilful excess of authority ; in other
words, a guilty knowledge superadded to an illegal act. Whether or not guilty
knowledge exists is a question of fact (n).

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session.

Sanction to prosecute is necessary under s. 197 of the Code of Criminal Pro-
cedure if the public servant is not removeable from his office without such
sanction.

Charge : — 1 (name and office of Magistrate, etc.) hereby charge you {name
of accused ) as follows : —

That on or about the day of , you

being a public servant, corruptly or maliciously made or pronounced in a state of
a judicial proceeding, namely, in {specify judicial proceeding) the following report

or order or verdict or decision, namely, , which you knew to be

contrary to law, and thereby committed an offence punishable under s. 219 of the
Indian Penal Code and within the cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

Maliciously The word has nowhere been defined in the Indian Penal Code.
This term is of common application in criminal law and means a wrongful act
done intentionally without just cause or excuse (o). Littledale, J., said : ** Malice
in its legal sense denotes a wrongful act done intentionally without just cause or
excuse " (p). Bowen, L. J., held : “ Maliciously means and implies an intention to
do an act which is wrongful to the detriment of another ” (q). Lord Blackburn
says : “ Where any person wilfully does an act injurious to another without lawful
excuse, he does it maliciously ” (r).

Where a Village Munsif passed a decree which was contrary to law and it was
found that the public servant acted ‘ maliciously/ it was held by the Allahabad
High Court that he was guilty of an offence under this section consisting in the
malicious pronouncement of a decision (s).

220. Whoever, being in any office which gives him legal
authority to commit persons for trial or to
or confinement *by plr- confinement, or to keep persons in confine-
son having authority ment, corruptly or maliciously commits any
rcring k contrary at to h ?aw. person for trial or confinement, or keeps any

person in confinement, in the exerase of
that authority, knowing that in so doing he is acting contrary to
law, shall be punished with imprisonment of either description
for a term which may extend to seven years, or with fine, or with
both.

(n) Narayan Babaji, ( 1872) 9 B. H. C. R. 346.

(o) Bromage v. Prosser , 4 B. & C. 247, (266.)

(p) Macpherson v. Daniels , (1831) 10 B. A C. 272.

(q) Per Bowen, L. J., in Mogul Steamship Co. v. McGregor Gow & Co., (1890)
23 Q. B. D. 698 at 612 : 68 L. J. Q. B. 477.

(r) , R. v. Pembliton , (1874) 43 L. J. M. C. 91.

(s) Piarelal, (1916) 16 A. L. J. 106, following Pembliton, (1874) 43 D, J. M. C\
91: L. R. 2C.C. R. 119 at 122.

32

402

THE INDIAN PENAL CODE

[CHAP. XI

This section is a continuation of the previous section though it is more
general in its application. It is not limited to the vagaries of judicial officers.

Procedure : — Non-cogmzable — Warrant — Bailable — Not compoundabie —
Triable by Court of Session.

Sanction: — Sanction is required under s. 197, Criminal Procedure Code,
if such public servant is not removeable from office without such sanction.

‘corruptly or maliciously knowing that in so doing he it

acting contrary to law 9 Where the arrest is legal there can be no guilty know-
ledge superadded to an illegal act, such as is necessary to establish against the accused
to justify conviction under this section. It is only where there has been an excess
by a police officer of his legal powers of arrest that it becomes necessary to consider
whether he has acted corruptly or maliciously and with the knowledge that he was
acting contrary to law (t). It was pointed out in Amarsingh's case (t) that BeAury
Singh* s case (u) could no longer be treated as good law as the law regarding the
procedure governing that case had then been altered by s. 54 of the Code of 1882.

Proof of unlawful commitment to confinement will not of itself warrant the
legal inference of malice. Knowledge that such commitment is contrary to law is a
question of fact and not of law and must be proved in order to satisfy the require-
ments of this section (v).

4 being in office 9 : — This section applies to persons * in office * and not to
private persons who may otherwise possess the powers of confinement (w).

221. Whoever, being a public servant, legally bound as
. . . . „ such public servant to apprehend or to keep

to apprehend on the in confinement any person charged with or
part of public servant ]j a bJ e to be apprehended for an offence,

intentionally omits to apprehend such
person, or intentionally suffers such person to escape, or
intentionally aids such person in escaping or attempting to escape
from such confinement, shall be punished as follows, that is
to say : —

with imprisonment of either description for a term which
may extend to seven years, with or without fine, if the person
in confinement, or who ought to have been apprehended, was
charged with, or liable to be apprehended for, an offence punishable
with death ; or

with imprisonment of either description for a term which
may extend to three years, with or without fine, if the person in
confinement, or who ought to have been apprehended, was charged
with, or liable to be apprehended for, an offence punishable with
transportation for life or imprisonment for a term which may
extend to ten years ; or

with imprisonment of either description for a term which
may extend to two years, with or without fine, if the person in

(t) Amarsing Jetha, (1885) 10 B. 506.

(u) (1867) 7 W, R. (Cr.) 3.

(v) Narayart Babaji , (1872) 9 Bom. H. C. R. 346.

(w) See Ss. 59 and 60 of the Code of Criminal Procedure,

SEC. 222 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 40 $

confinement, or who ought to have been apprehended, was
charged with, or liable to be apprehended for, an offence punishable
with imprisonment for a term less than ten years.

Public servant— s. 21. Offence — s. 40. Legally bound— s. 43.

This and the next two sections deal with intentional omission to apprehend
offenders and negligently suffering their escape. S. 222 deals with the same
omission regarding a convicted person whereas s. 223 refers not to omission
but to escape from confinement or custody negligently suffered by a public
servant, and s. 224 punishes the prisoner himself for escaping from custody of
or for offering resistance to his arrest.

Procedure : — Non~cognizabIe — Warrant — Bailable — Not compoundable —
Triable exclusively by Court of Session if the offence charged with is a capita
offence ; if it is punishable with transportation for life or imprisonment for ten
years, then it is triable by Court of Session, Presidency Magistrate or Magistrate
of the first or second class — in any other case accused may be tried by Presidency
Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at , being

a public servant (state the nature of the office held by the prisoner so as to make him
a public servant) legally bound as such public servant to apprehend (or keep in

confinement) one — charged with the offence of ,

(or liable to be apprehended for an offence punishable with) (state the punishment)
intentionally omitted to apprehend the said person (or intentionally suffered him
to escape, or intentionally aided such person in escaping or attempting to escape
from such confinement) ; and you thereby committed an offence punishable under
s. 221 of the Indian Penal Code, and within my cognizance (or cognizance of the
Court of Session).

And I hereby direct that you be tried [by the said Court (in cases tried by Magis-
trate, omit these words)] on the said charge.

Legally bound : — A choukidar or village watchman is not legally bound as
a public servant to apprehend a person accused of committing murder outside the
village of which he is the choukidar , such person not being a proclaimed offender,
and not having been found by him in the act of committing such murder and
consequently such choukidar , if he refuses to apprehend such person on such
charge at the instance of a private person, is not punishable under s. 221 (x).

The duties of a choukidar as a private citizen ought not to be confounded with
his duties as a public servant. Where the legal obligation of the choukidar to arrest
or detain has not been established, there is no dereliction of his duty within
the purview of s. 221 (y).

222. Whoever, being a public servant, legally bound as
intentional omission such public servant to apprehend or to keep
to apprehend on the in confinement any person under sentence

bound° f t P 0 Ub 'apprehend of a Court of Justice for any offence for
person under sentence lawfully committed to custody], intentionally
or aw u y committed. om {f S apprehend such person, or inten-
tionally suffers such person to escape, or intentionally aids

(x) Kalin, (1880) 3 A. 60, set also s. 45, Code of Criminal Procedure.

(y) Bhagwan Din, (1029) 52.-A. 203 : 2.8 A. L. J. 242 : A. I. R. (1929) A. 935,

404

THE INDIAN PENAL CODE

[CHAP. XI

such person in escaping or attempting to escape from such con-
finement, shall be punished as follows, that is to say: —

with transportation for life or with imprisonment of either
description for a term which may extend to fourteen years, with
or without fine, if the person in confinement, or who ought to
have been apprehended, is under sentence of death ; or

with imprisonment of either description for a term which
may extend to seven years, with or without fine, if the person in
confinement, or who ought to have been apprehended, is subject,
by a sentence of a Court of Justice, or by virtue of a commutation
of such sentence, to transportation for life or penal servitude for
life, or to transportation or penal servitude or imprisonment for
a term of ten years or upwards ; or

with imprisonment of either description for a term which
may extend to three years, or with fine, or with both, if the person
in confinement, or who ought to have been apprehended, is
subject, by a sentence of a Court of Justice, to imprisonment
for a term not extending to ten years [or if the person was law-
fully committed to custody].

Public servant — s. 21. Court of Justice — s. 20.

Legally bound — s. 43. Offence — s. 40.

This section deals with omission to apprehend persons lawfully convicted of an
offence or committed for an offence.

Legislative Changes The words* lawfully committed to custody * in the
first paragraph and the words * or if the person was lawfully committed to custody ’
at the end of the section were inserted by the Indian Penal Code Amendment Act
1870, (XXVII of 1870), S. 8.

Procedure : — Non-cognizable — Warrant — Not bailable — Not compoundable
--Triable by Court of Session ; if the offence falls under the last clause — Bailable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Sanction— is required under s. 197 of the Criminal Procedure Code when
the public servant is not removeable except without the sanction of the Local
Government.

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of — — f

were (state the office) and as such public servant being legally

bound to apprehend (or keep in confinement) one XY % a person, who was on or

about the — -r day of , at , under the

sentence of of the Court of for the offence

under section of the Indian Penal Code or some other special or local

law [(or who had been lawfully committed to custody by — — did inten-

tionally omit to apprehend the said XY) or intentionally suffered the said XY to
escape or intentionally aided the said XY in escaping or attempting to escape
from such confinement)] and that you thereby committed an offence punishable
under s. 222 of the Indian Penal Code and within my cognizance (or the cognizance
of the Court of Session).

SEC. 223] OF fai.se evidence and offences against public justice 405

And I hereby direct that you be tried (by the said Court) on the said charge.

Intentional aid to prisoners to escape A person who does certain acts
in order to facilitate the attempt of a prisoner to escape and thereby does facilitate
an attempt to escape, is guilty of an offence under this section and it makes no
difference that the acts proved on the part of the prisoner do not amount to an
attempt to escape but constitute only a preparation to escape or that the attempt
was in fact frustrated by other circumstances (z).

223. Whoever, being a public servant legally bound as
« , r such public servant to keep in confinement

ment or custody negii- any person charged with or convicted ot
i1c n servaiif ered by pub " an Y offence [or lawfully committed to cus-
tody], negligently suffers such person to
escape from confinement, shall be punished with simple imprison-
ment for a term which may extend to two years, or with fine, or
with both.

Legislative changes : — The words ‘ or lawfully committed to custody * were
added by Act XXVII of 1870, s. 8.

Scope : — This section applies only to cases where the person, who is allowed
to escape, is in custody for an offence, or has been committed to custody, and not to
cases where such person has simply been arrested under a civil process (a). To
constitute an offence under this section, it must be shown that escape was a
natural and probable consequence of the negligence (b). Before a person can be
convicted under this section of having negligently suffered a prisoner to escape, it
must be shown not only that he was guilty of negligence, but that the escape was
at least the natural and probable consequence of his negligence (c).

Procedure : — Non-cognizable — Summons — Bailable — Not c6mpoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , being

a public servant (state the office) and being legally bound as such public servant

to keep in confinement who was charged with (or convicted of the

offence of , or lawfully committed to custody) negligently suffered

the said to escape from confinement and thereby committed an

offence punishable under s. 223 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

* negligently suffers such person to escape from confinement * : — Where
the police of an adjoining Native State arrested in British territory a person suspected
of having committed an offence in the Native State and handed him over to a
choulddar from whose custody he escaped, held that neither the original arrest
nor the subsequent custody being legal, the chaukidar could not properly be con-
victed under this section (d).

Where two police constables were in charge of a dangerous prisoner whom
they were conveying from one place to another in a camel cart, having hand-cuffed
him doubly and having tied a rope round his waist and the prisoner was allowed

(*) MoulBaksha , (1929) 119 I. C. 762: 30 Cr. L. J. 1103 (1100): A. I. R.
(1929) Lah. 031.

(a) Tafaullah, (1885) 12 C. 190 (191).

(b) Durga Prasad , (1910) 7 AdL. J. 907 (908, 909).

(c) Ibid. * <

(d) Debi, (>007) 29 A. 377.

406

THE INDIAN PENAt CODE

[ CHAP. XI

to get down from the cart to answer a call of nature and for that purpose one set of
handcuffs was taken off, the prisoner raised a sudden alarm of a snake and in the
momentary confusion jerked away the rope and managed to get away, held that the
constables were not guilty under this section (e).

Where W was lawfully committed to the custody of the police and the appli-
cant, a police officer, who was bound to detain him in custody, negligently suffered
W to escape from his custody, it was held that he was guilty under this section and
if he did not intentionally suffer such escape then he was guilty under s. 222 (f).

* escape from confinement ’ s — This expression is not limited to escape
from the particular sort or place of confinement to which a prisoner is subjected,
or in which he is restrained at the time of the occurrence (g).

224. Whoever intentionally offers any resistance or illegal
Resistance or obstme- obstruction to the lawful apprehension of
tion by a person to himself for any offence with which he is
his lawful apprehension. charge(J or of w hJ c h he has been convicted,

or escapes or attempts to escape from any custody in which he
is lawfully detained for any such offence, shall be punished
with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

Explanation . — The punishment in this section is in addition
to the punishment for which the person to be apprehended or
detained in custody was liable for tne offence with which he was
charged, or of which he was convicted.

Procedure i — Cognizable — Warrant — Bailable —Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first or second class.

Place of trial : — The offence of having escaped from custody may be in-
quired into or tried by the Court within the local limits of whose jurisdiction the
person charged is (h).

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of * , at , inten-

tionally offered any resistance (or illegal obstruction) to your lawful apprehension

for the offence of with which you were charged or of which you had

been convicted (or escaped or attempted to escape from the custody of in

which you were lawfully detained for any such offence) and you thereby
committed an offence punishable under s. 224 of the Indian Penal Code, and
within my cognizance.

And I hereby direct that you be tried on the said charge.

Resistance or obstruction by a person to bis lawful apprehension : —

Escape from custody in which a person was detained merely for the purpose of giving
security for good behaviour does not amount to an offence under this section (i).
Where the accused committed a contempt of Court and was ordered into custody
by die Magistrate and he resisted the arrest, held, the conviction was legal (j).

te) Giridhari, (1917) 15 A. L. J. 883. * ~~~ '

(f) AshrafAli, (1883) 6 A. 129.

(g) Per Rivar. J., in Albal Singh, (1800) P. R. No. 32 o 1 1800.

(b) S. 181 (1) Cr. P. Code.

(i) (1881) 1 Weir 108.

(j) Mahomed Kasim, (1882) 1 Weir 204. %

Sfcc. 225 ] OF TALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 407

A person charged or convicted under a special or local law may be punished
for an escape from custody under this section (k).

Where the accused having been legally arrested was subsequently left un-
guarded and then escaped but was re-arrested and tried and convicted under this
section, held, the conviction was right and the neglect of the police-officer
in absenting himself from the place where the accused was detained when he
escaped did not affect the accused’s guilt (1).

An accused person legally arrested for an offence must submit to be tried and
dealt with according to law. If he gains his liberty before he is delivered by due
course of law, he commits the offence of escaping from lawful custody (m).

4 for any such offence 9 : — These words mean for any offence with which a
person is charged or of which he has been convicted. The word ‘ charged ’ is
used in the popular sense as implying inculpation of an alleged offence as distin-
guished from a charge formulated at the trial (n).

Where the accused had been apprehended on a charge of a cognizable offence,
and had then escaped from lawful custody, his liability to punishment would not be
affected by the circumstance that a competent Court had afterwards determined
his offence to be other than that with which he had been charged, but if he were
charged with a non-cognizable offence, then a police-officer who had apprehended
him without warrant would not have him in lawful custody, and the escape would
not be punishable under this section (o). One L was arrested by a constable under
a warrant which was not signed by the Magistrate issuing it and which was made
over to the thana officer on an order purporting to have been made by the District
Superintendent of Police but not signed by anybody. L was rescued by the other
accused who caused unnecessary hurt to the constable. The Patna High Court held
that the warrant was defective, the arrest of L was illegal, and that the latter was
not guilty of any offence in effecting his escape (p).

A choukidar cannot properly be regarded as a police-officer within the terms
of s. 59, Criminal Procedure Code, and escape from his custody is not an offence
under this section (q).

225. Whoever intentionally offers any resistance or illegal

Resistance or obstruc- obstruction to the lawful apprehension of
tion to lawful apprehen- any other person for an offence, or rescues
sion of another person. or a (t e mpts to rescue any other person from

any custody in which that person is lawfully detained for an
offence, shall be punished with imprisonment of either descrip-
tion for a term which may extend to two years, or with fine, or
with both ;

or, if the person to be apprehended, or the person rescued,
or attempted to be rescued, is charged with or liaole to be appre-
hended for an offence punishable with transportation for life or
imprisonment for a term which may extend to ten years, shall be

(k) (1866) 3 M. H. C. R. (App.) xi at xix.

(l) Muppan, (1896) 18 M. 201 and Ramaswami Konan, (1908) 31 M. 471, followed
in Kolia Atnra, (1920) 29 Bom. L. R. 168.

t (m) Kalia Amro, (1926) 29 Bom. L. R. 168.

(n) Ibid.

Ramsaran Ternary, (1876) 24 W. R. (Cr.) 46.

MousiLal, (1918) Pat. Su'pp. C. W. N. 288 : 19 Cr. L. J. 1000 : 48 1. C. 340.
Puma Chandra Kundu «, Hachemali Chaukidar, (1913) 17 C. W. N. 978,
gKalu Choukidar, (1900) 27 C. 366.

408

THE INDIAN PENAI CODE {►CHAP. XI

punished with imprisonment of either description for a term which
may extend to three years, and shall also be liable to fine ;

or, if the person to be apprehended, or rescued, ov attempted
to be rescued, is charged with or liable to be apprehended for
an offence punishable with death, shall be punished with im-
prisonment of either description for a term which may extend to
seven years, and shall also be liable to fine ;

or, if the person to be apprehended or rescued, or attempted
to be rescued, is liable, under the sentence of a Court of Justice,
or by virtue of a commutation of such a sentence, to transportation
for life, or to transportation, penal servitude, or imprisonment,
for a term of ten years or upwards, shall be punished with im-
prisonment of either description for a term which may extend to
seven years, and shall also be liable to fine ;

or, if the person to be apprehended or rescued, or attempted
to be rescued, is under sentence of death, shall be punished with
transportation for life or imprisonment of either description for
a term not exceeding ten years, and shall also be liable to fine.

Scop*$— The words jn the second paragraph of this section describing the
punishment lor the offence with which the person apprehended is charged should
not be read disjunctively as denoting transportation for life or imprisonment for
ten years in the alternative (r).

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class ; if
charged with an offence punishable with transportation for life or imprisonment
for 10 years — Not bailable — Triable by Court of Session, Presidency Magistrate
or Magistrate of the first class ; — if charged with a capital offence — Not bailable—
Triable by Court of Session.

Charge : — I {name and office oj Magistrate, etc.) hereby charge you ( name
of accused) as follows: —

That you, on or about the day of , at — ,

intentionally offered resistance (or illegal obstruction) to the lawful apprehension

of XY for the offence of under section of the

Indian Penal Code (or rescued or attempted to rescue, the said XY from the custody

in which the said XY was lawfully detained for the offence of , and that

you thereby committed an offence under s. 225, clause of the Indian

Penal Code and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Resistance or obstruction to lawful apprehension of another person

Before a prisoner can be convicted under this section it must be shown that the
person said to have been rescued was in lawful custody at the time and this involves
the question whether the person arrested was the person for whose arrest the con-
stables had a warrant (s).

(r) Venkata Subbaiar ; (1890) 1 Weir 210.

fe) Deegumber Aheer, (1873) 21 W. R. (Cr.) 22 and Ganga Charan Singh, (1893)
21 C. 337, relied oain Mathura Kanta v. Kesin Singh , (1897) 1 C. W. N. xcvii.

SEC. 226-A] Of FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 40$

The arrest by a duffader of a person for theft on complaint made to him but
not committed in his presence is illegal under s. 39 (2) of Bengal Act VI of 1870
(Village Chaukidari Act) and as such he cannot be said to be engaged in lawful
execution of his duty. The accused in rescuing the person arrested cannot be
convicted under this section nor does any threat to beat the duffadar amount to an
offence under s. 353 of the Code (t).

Where the warrant provided for bail and a constable arrested 5 without
telling him * can you give the required bail ?’ and the accused rescued 5, held, the
arrest being illegal, the accused could not be convicted under this section (u).

* intentionally offeres any resistance 9 : — The intention of the accused is an
important ingredient in the offence under this section (v).

* lawfully detained 9 : — Before a conviction can be had under this section
it must be proved that the person whom the accused are charged with having
rescued was in lawful custody at the time (w).

Where a private person lawfully arrested a thief in the act of committing theft
and made him over to a village chaukidar to be taken to the nearest police station,
and on the way to the police station, three persons seized the chaukidar and the thief
made his escape, held that the rescuers were rightly convicted under this section
as the thief was * lawfully detained * within the meaning of this section (x).

225~A. Whoever, being a public servant legally bound

Omission to a re as suc k P u ^ c servant to apprehend, or to
hen<^ l Tr 0n sufferanc?e pr of keep in confinement, any person in any case
escape, on part of public not provided for in section 221 , section 222

otherwise prodded foT or section 223, or in any other law for the
time being in force, omits to apprehend that
person or suffers him to escape from confinement, shall be
punished —

(a) if he does so intentionally, with imprisonment of

either description for a term which may extend to
three years, or with fine, or with both ; and

( b ) if he does so negligently, with simple imprisonment for

a term which may extend to two years, or with fine,
or with both.

Legislative changes : — This section and s. 225-B were substituted by the
Indian Criminal Law Amendment Act, 1886 (X of 1886), s. 24 (I) for "s. 225-A
which was inserted by the Indian Penal Code Amendment Act, 1870 (XXVII of
1870), s. 9.

Chapters IV and V of the Code apply to offences punirhable under Ss. 225-A
and 225-B — see the Indian Penal Code Amendment Act, 1870 (XXVII of 1870),
s. 13, as amended by the Amending Act, 1891, (XII of 1891) .

Procedure : — Non-cognizable — Warrant — Bailable ; in the case of intentional
omission or sufferance — Triable by Court of Session, Presidency Magistrate, or
Magistrate of the first class ; in case of negligent omission or sufferance— -Summons
Triable by Presidency Magistrate or Magistrate of the first or second class.

(t) Bolai De, (1907) 36 C. 361 : 12 C. W. N. 367.

(u) Shyama Charon Majumder, (1911) 16 C. W. N. 649.

(v) Alawal, (102lf23 Cr. L. J. 3 : 64 I. C. 371.

(w) Dtegumber Aheer ; (1873) 21 W. R. (Cr.) 22.

\x) Parsiddhan Singh, (1907) 29 A. 676.

410 THfe Indian penal cod£ [ chap, tfi

Charge : — I {name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at , being a public

servant legally bound as such public servant to apprehend (or to keep in
confinement) one XY intentionally (or negligently) omitted to apprehend the
said XY (or suffered the said XY to escape from confinement) and that you
thereby committed an offence punishable under s. 225-A of the Indian Penal
Code and within my cognizance (or the cognizance of the Court of Session).

And I hereby direct that you be tried on the said charge.

225~B. Whoever, in any case not provided for in section
v> . . . 224 or section 225 or in any other law for

tioti to lawful ° appre- the time being in force, intentionally offers
(tension, or escape or any resistance or legal obstruction to the

otherwise provided for** lawful apprehension of himself or of any
other person, or escapes or attempts to
escape from any custody in which he is lawfully detained, or
rescues or attempts to rescue any other person from any custody
in which that person is lawfully detained, shall be punished with
imprisonment of either description for a term which may extend
to six months, or with fine, or with both.

Legislative changes See under this heading, commentary to s. 225-A,
supra.

Procedure : — Cognizable— Warrant — Bailable — Not compoundable — Triable
by Presidency Magistate or Magistrate of the first or second class.

The Allahabad High Court in a recent decision pointed out that the correct
procedure to be adopted by a civil Court desirous of prosecuting a person who has
escaped from the lawful custody of a servant of the Court is that the servant of the
Court should file a complaint in the ordinary way, and held further that the High
Court will not interfere in revision with an order of acquittal passed by a Magistrate
of competent jurisdiction on a prosecution for an alleged offence under this section,
irregularly instituted on a report sent in by a Munsir which was treated as a com-
plaint (y).

Jurisdiction The returnable date of the warrant can be extended by the same
certificate-officer himself who originally issued the warrant. The certificate-
officer who issued the warrant for the arrest of the judgment-debtor in a certi-
ficate case can try petitioners for an offence under this section (z).

Charge : — I ( name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows: —

That you, on or about the day of , at ,

intentionally offered resistance (or illegal obstruction) to the lawful apprehension by

— — of yourself [(or of XY ) or escaped (or attempted to escape) or

rescued or attempted to rescue the said XY from the custody of

in which the said XY was lawfully detained)], and that you thereby committed an
offence punishable under s. 225-B of the Indian Penal Code and within my cog-
nizance.

And I hereby direct that you be tried on the said charge.

(y) Madho Singh, (1025) 23 A. L. J. J89. : '

(s) Salitnaddin, (1925) 43 C. L. J. 234 : A. J. R. (1925) C. 006.

SEC. 225-b] of false evidence and offences against public justice 4li

Scope The Allahabad High Court has held that to constitute an offence
under this section something more than an evasion of arrest or a mere assertion by
the person sought to be arrested that he would not like to be arrested or that a fight
would be the result of such arrest must be proved. The accused should not be
summarily tried in such a serious case. It has held further that an officer with a
warrant of arrest must produce the warrant to the person sought to be arrested
and if the officer is obstructed in his duty, then the person offering resistance will
be guilty under this section (a). Under this section resistance or obstruction to
the apprehension of a person is made punishable only if the apprehension was
* lawful * ; but where (as here) the imposition of the tax for the non-payment of
which warrants were issued was itself illegal and ultra vires, the resistance to their
execution cannot be punishable (b).

To justify the conviction of a person under this section for the offence of
intentionally offering resistance or illegal obstruction to the lawful apprehension
of himself, something more than mere absconding is required, — there must be
an overt act of resistance or obstruction, some active opposition by show of force (c).

Where a person escapes from jail in which he was confined under s. 123 of
the Code of Criminal Procedure for his having failed to find security to be of good
behaviour, his conviction should be recorded under this section and not under
under s. 224 (d).

Where two constables in the bona fide execution of their duty carried out an
arrest under a warrant which unknown to them contained a technical defect where-
upon certain persons came up, seized the constables, and rescued the prisoner
and tore up the warrant, held that the rescuers were not liable to punishment
under this section or s. 353 but should have been convicted under s. 352 of the
Code (e).

Resistance or obstruction to lawful apprehension or escape or rescue

Where a Revenue Officer issued a warrant for the arrest of a defaulting witness
and the warrant was headed “ £mp. v. Hiralal Poddar defendant " and the body
of the warrant did not contain the name of any person to be arrested, the Calcutta
High Court held that the conviction under this section could not stand as the
warrant was clearly bad (f).

If the arrest is under a warrant, it has been held by the Madras High Court
that the man arrested is entitled to ask that the warrant be shown to him to see
that he is being properly arrested and that when the warrant is not shown to him
and the arrest is made, such an arrest will not be a legal arrest and the attempt to
escape from custody would not then fall under this section. Held further that
it is not sufficient for the prosecution afterwards to say that the constable had
authority under some other provision of the law (g).

The Calcutta High Court has held that it is not necessary that a bailiff execut-
ing a civil Court warrant should in the first instance show the warrant. It is
sufficient that he should apprise the person to be arrested the contents of the

(a) Aijaz Hussain , (1016) 38 A. 506 : 14 A. L. J. 731 : 17 Cr. L. J. 413 • 35

I. C. 973 ; RajaniKanto Paul , (1901) 5 C. W. N. 843.

(b) Dasonidhi , (1927) 9 L. 424: 29 Cr. L. J. 205: 107 1. C. 601.

(c) Anarawdin , (1923) J. R. 218 : 2 Bur. L. J. 246 : 24 Cr. L. J. 848 : 74 I C.

960 : A. 1. R. (1923) Rang. 231.

(d) Mali, (1920) 43 A. 185 : 18 A. L. J. 1039.

(e) Gokul, (1922) 45 A. 142 : 20 A. L. J. 921 : 24 Cr. L. J 151 : 73 I. C. 503 :
A. I. R. (1923) All. 87.

(f) Jogendra Lashker v. Hiralal Chandra Poddar , (1924) 51 C. 902.

(g) Appasami Mudahar ; (1924) 47 M. 442 (444, 445) : 46 M. L. J. 447 : 34 M.L.T.
95.

412

THE INDIAN PENAL CODE

[ CHAP, XI

warrant and show it if desired (h). But in Satish Chandra Rai v. Jadtmandan
Singh , (i) it was held that an arrest by a police-officer without notifying the sub-
stance of the warrant to the person against whom the warrant is issued as required
by $. 80, Cr. P. Code, is not a lawful arrest, and resistance to such an arrest is not
an offence under this section. The Patna High Court however has held that the
omission on the part of the constable to explain to the accused the particulars of
the warrant after showing him the warrant cannot invalidate the arrest (j). The
amendment of s. 56* Cr. P. Code, has, it seems, in effect superseded this Patna view.
Rankin, C. J., and Buckland, J., in a recent decision (k) have distinguished Abdul
Gaffers case (1) and SatisKs case (i) and held that an arrest without compliance
with the provisions of s. 80, Cr. P. Code, is a legal arrest in circumstances of resist-
ance or attempted evasion mentioned in s. 46 (2), Cr. P. Code, and to rescue a
person so arrested is an offence within s. 225 (m).

An omission to comply with provisions of Or. 21 , r. 22, Civil P. Code, does not
make the warrant bad, hence conviction under this section and s. 353 was held
legal (n).

Where the warrant did not record reasons in writing as required by section 90
of the Code of Criminal Procedure, the Calcutta High Court held that the warrant
was illegal and a person rescuing the witness arrested on such a warrant was not
guilty of an offence under this section (o).

The case of Sukheswari Phukhan (o) has been overruled by a Full Bench
decision of the same High Court (p).

A person escaping from the police custody, while proceeding under s. 109,
Criminal Procedure Code, have been taken against him, commits an offence under
this section and not under s. 224 which requires that an accused person must offer
resistance or illegal obstruction to the lawful apprehension of himself for any offence
with which he has either been charged or of which he has been convicted (q).

A warrant of arrest which showed that the father’s name of the arrested person
was different is not a valid warrant and it has been held that a conviction under
this section or s. 353 of the Code of such accused person who resisted or used
criminal force upon his being arrested on such warrant is illegal. The onus lay
on the prosecution to prove the affirmative , not on the accused to prove the negative (r).

Positive evidence must be adduced to prove the resistance offered to the person
producing a warrant of arrest. There must be an overt act of resistance or ob-
struction (s).

Where a Sheristader, who was duly authorised to sign warrants, had signed
a warrant of arrest, and the judgment-debtor resisted its execution, held that he had
committed an offence under this section and held further that the authority of the

(h) Supdt. and Remembrancer of Legal Affairs v. Barodakanta Majumdcr , (1921)

25 C. W. N. 816 : 23 Cr. L. J. 347 : 06 I. C. 1008, following RajaniKanta Pal, (1901)
5C. W. N. 843. 1

(i) (1899) 26 C. 748; Bisu Haidar v. Probhat Chandra Chakrabarty, (1907) 11
C. W. N. 836 : 6 C. L. J. 127.

(j) Bankey Behary Singh, 3 Pat. L. J. 493 ; (1918) Pat. Supp. C. W. N. 269, see
Basant Lull, (1900)27 C. 320 ; 2 C. W. N, 311.

(k) Durbesh AH, (1928) 33 C. W. N. 284.

(l) (1896) 23 C. 869.

(m) Rajant Kanto Saha , (1930) 58 C. 940.

(n) Ibid.

(o) Sukhewar Phukan, (1911) 38 C. 789 : 16 C. W. N. 1001.

(p) Govt, of Assam v. Sahabulla, 27 C. W. N. 857 (F. B,).

(q) KhanuKori , (1923) 26 Cr. L. J. 62 • 77 I. C. 814.

(r) Debt Singh , (1901) 28 C. 399.

(s) Dewa, (1918) P. R. No. 33 of 1918 (Cr.) : 20 Cr. L. J. 64 : 49 I. C.*832,
following Aijaz Hussain , (1916) 38 A. 506 : 14 A. L. J. 731 : 17 Cr. L. J. 413 : 35
I, C. 973.

SEC. 225-B] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 413

Sheristader to sign warrants cannot be presumed under s. 114 cl. (e) of the
Indian Evidence Act, — evidence of the fact of appointment is necessary (t). This
case of Mir Sarwar Jan (t) was distinguished in a recent decision of the Calcutta
High Court where it was found that the Sheristader who signed the warrant pur-
ported to make the signature " By order ” and the presumption under s. 1 14 (e)
of the Indian Evidence Act was held to apply (u).

Where the accused under arrest by a process-server in execution of the decree
was set at liberty on his promise to pay the decretal amount w^hin a given time,
or failing which to surrender himself into custody again, and subsequently failed
to carry out either of the two alternatives, the Madras High Court held that the
order of the Sub-cli visional Magistrate acquitting the accused under this section
was wrong and restored the conviction passed by a 2nd Class Magistrate and held
further that an escape is none the less an escape though effected with the consent
of the custodian (v). Where the accused is charged under this section with having
offered obstruction to the lawful apprehension of a boy under 7 years of age by
the police for theft, held that the accused cannot be convicted as the person arrest-
ed is a child of 7 years who under s. 82 cannot commit an offence (w).

Where in a suit for an account, a preliminary decree was passed ordering the
defendant to furnish an account within a specified time and he failed to do so
and -together with two companions he resisted a peon sent by the Court to arrest
him under the provisions of Or. XXI, r. 32, Civil Procedure Code, the Patna
High Court held that the defendant’s arrest was unlawful as there was no refusal
by him to obey an injunction issued by the Court and that consequently the defend-
ant was not liable to be prosecuted jointly with the other accused of offences
under s. 186 and this section (x). A police-officer, who arrests an accused under
a bailable warrant without informing him that bail has been allowed, makes an
illegal arrest and accordingly the conviction under this section was set aside (y).

Where an arrest of a person is not justified by law and the person escapes from
police custody, it was held that he is not guilty under this section (z).

Under s. 75 of the Code of Criminal Procedure the seal of the Court is essential
to the validity of the warrant. An arrest under a warrant duly signed but not sealed
made the warrant void and consequently the arrest was held illegal and the con-
viction under this section was set aside (a).

Where a person rescued an accused against whom proceedings under $? MO,
Cr. P. Code, were taken, the Madras High Court held that a Magistrate had no
power to remand an accused person to custody under s. 110, Criminal Procedure
Code, and accordingly the conviction of the person rescuing the accused under
s. 1 10 was held illegal (b). Resistance to the warrant issued by a District Magistrate
who has no authority is no offence (c).

Escape from lawful custody A Full Bench of the Bombay High Court
as long ago as in 1865 in Poshmhbin Dhambaji Patel (d) held that the phrase 4 escape

(t) Deputy Legal Remembrancer v. Mir Sarwar Jan , (1902) 6 C. W. N. 845.

(u) Giridhar Sarkar v. Harish Chandra Chowdhttry , (1923) 37 C. L. J. 331.

(v) Public Prosecutor v. Semtimalai Gouvdan, (1919) M. W. N. 695 : 25 M. L. T.
290 ; 20 Cr. L. J. 208 : 49 I. C. 650, following Moopah , (1895) 18 M. 401 and Rama -
swatni Konan, (1908) 31 M. 271.

(w) Santa Cruz Morais, (1915) M. W. N. 543 : 16 Cr. L. J. 602 : 30 I. C. 154.

(x) Arjun Suie , (1917) 3 P. L. J. 106.

(y) Shyamacharan, (1911) 16 C. W. N. 549 ; see Ram Saran, (1875) 24 W. R.
(Cr.) 45.

(z) Kala . A. I. R. (1925) Lah. 623.

(a) Mahajan Sheikh, (1914) 42 C. 708 ; Ramdoyal v. Mahtab Singh , (1885) 7 A.
506 (P. C.).

(b) Subaraya Chetti, (1915) 39 M/928 : 18 Cr. L. J. 403 : 38 I. C. 963.

(cl Jogendra, (1897) 24 C. 748.

(d) 2 Bom. H, C. R. 134 (F. B.).

414

THE INDIAN PENAL CODE

[CHAP- XI

from lawful custody * does not amount to obstruction of a public servant in the dis-
charge of his duties. Following this decision (d), it was held in Joannas case (e)
that the further act of the petitioner in running away, shutting himself up in a room
and refusing to come out, is a voluntary obstruction.

4 lawfully detained* : — Piggott, J., answered in the negative the question
referred to him, viz., “ Is a civil Court empowered to leave a judgment-debtor in
custody of a peor^ after giving him time to pay up a decretal amount, and if so, is
such detention lawful custody within the meaning of 8. 225 B" (0- Rescue,
however, is no offence when the petitioners rescued persons from the custody of
constables who in the bona fide execution of their duty carried out an arrest under
a warrant which, unknown to them, was in fact not legally issued (g). Where a
warrant issued by a Revenue officer for the arrest of a defaulting witness did not
contain the name of the person to be arrested, it was held to be illegal and the con-
viction under Ss. 225-B and 353 were set aside (h).

Right of accused to know authority for arrest s— Krishnan, J-, sitting
singly, held : “ A man is entitled to know when a constable is arresting him, under
what power he is acting and if he (the constable) states that he acts under a certain
power which the man knows he has not got, I am not prepared to say that he is
not entitled to object to such an arrest and to escape from custody when he is
arrested " (i), but it has been held that a bailiff need not show the warrant. It is
sufficient that he should apprise the person to be arrested of the contents of the
warrant and show it if desired (j).

Deserter from Army - A person, who intentionally resists or illegally
obstructs a police-officer in the apprehension of a deserter from His Majesty’s Army
or rescues or attempts to rescue him from the custody of such officer, is guilty of an
offence punishable under s. 225-B which section was enacted by the Legislature
to meet cases like this (k).

226. Whoever, having been lawfully transported, returns
from such transportation, the term of such
trans^rtation tUrn ^ transportation not having expired, and his
punishment not having been remitted, shall
be punished with transportation for life, and shall also be liable
to fine, and to be imprisoned with rigorous imprisonment for a
term not exceeding three years before he is so transported.

SJ..

A person, who having been lawfully transported returns from such transporta-
tion before the expiry of such term, is punished under this section.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge s — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

(e) (1027) 0 L. 214 (216).

(f) Madho Singh, (1926) 47 A. 409 ; 23 A. L. J. 189 : 26 Cr. L. J. 866.

(g) Gokul, (1922) 46 A. 214.

(h) Jogendra Nath Laskar v. Hiralal Chandra Poddar, (1924) 61 C. 902.

S Appasami Mudaliar, (1924) 47 M. 444 ; see also Amarnath, (1883) 6 A. 318.
Supdt.and Remembrancer of Legal Affairs x . BaradaKanto Majumdar, (1921)
26 C. W. N. 816.

(k) RahamAli, (1911) No. 200 P. L. R. of 1912 : 20 P. R. 1011 (Cr.) : 47 P. W. R.
of 1911 (Gr.): 1?-Cr. L. J. 234 : 14 I. C. 428,

SEC. 227 ] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 415

That you, on or about the day of , were

sentenced to transportation by the Court of Session, namely — — - ’( mention

the term) — — — and that on the day of , at — , the term of

such transportation not having expired, and such punishment not having

been remitted, you the said returned from such transportation, and

that you thereby committed an offence punishable under $. 226 of the Indian Penal
Code, and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on "the said charge.

Unlawful return from transportation : — To constitute an offence under
this section it is essential that thereon vict should have been actually sent to a penal
settlement and have returned before his term of transportation has expired or been
remitted. But where the prisoner has escaped from the custody of the police, when
under a sentence of trasnportation and whilst on his way to undergo such sentence,
he would be guilty of an offence under s. 224, supra (1). *

v In England, it has been held that a person who was indicted under 5 Geo. 4, c.
84, s. 22, for being found at large before the expiration of his sentence of trans-
portation was rightly convicted, the fact of such sentence in force at the time was
sufficiently proved by the certificate of his conviction and sentence, the judgment
remaining unreserved (m).

227. Whoever, having accepted any conditional remission
Violation of condition punishment, . knowingly violates any

of remission of punish- condition on which remission was granted,
mcn * shall be punished with the punishment to

which he was originally sentenced, if he has already suffered no
part of that punishment, and if he has suffered any part of that
punishment, then with so much of that punishment as he has not
already suffered.

'* Procedure : — Non-cognizable — Summons — Not bailable — Not corqpotind-
able — Triable by the Court by which the original offence was triable.

The Court by which the original offence was triable must be taken to mean any
Court empowered by law to try any such offence as that for which the convict was
under sentence (n).

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , were sentenced

by the Court of to (mention sentence) and which

punishment was remitted on by the order of on your accept-
ing the condition to wit ( mention conditions), and which you accepted

.and that on or about the —day of — , at , you knowingly

violated the condition on which such remission was granted, namely (state the
nature of the violation) and you thereby committed an oifence punishable under
s. 227 of the Indian Penal Code and within my cognizance (or the cognizance of
the Court of Session or the High Court).

And I hereby direct that yeti be tried (by the said Court) on the said charge.

(1) Ratnasamy, (1868) 4 M. H. C. R. 162.

(m) Finney, (1849) 2 C. & K. 774.

(n) A hone Ahong, (J872) 9 Bom. H. C. R. 366 (367).

416

THE INDIAN PENAL CODE

[CHAP. XI

228. Whoever intentionally offers any insult, or causes
, x .. , • * ,x any interruption to any public servant,

interruption to public while such public servant is sitting in any
servant sitting in judi- g^ge of a judicial proceeding, shall be

punished with simple imprisonment tor a
term which may extend to six months, or with fine which may
extend to one thotlSand rupees, or with both.

Scope t—' This section relates merely to an insult or interruption to a public
servant while sitting in a stage of judicial proceedings. It does not provide against
a contempt of Court committed by the publication of a libel out of Court when the
Court is not sitting.

,A contempt of the High Court by a libel published out of Court when the
Court is not sitting i* not included in the words * offences under the Indian Penal
Code * although the contempt may include defamation. Such an offence i$ Soini^v '
thing more than defamation, and is of a different character. It is an offeree whi£h
by the Common Law of England is punishable by the High Court in a summary
manner by fine or imprisonment or both (o). To sustain a conviction under this
section it is necessary to prove (a) that the accused person has been convicted and
sentenced, and ( b ) has been granted a remission of punishment, (c) the conditions
on which the remission was granted, (d) the identity of the accused, (e) the fact
that the accused has committed a breach of a condition of the remission (p). A
single act may be both an offence under the Indian Penal Code and may also be a
contempt of Court and may be punishable in either or both capacities (q). £ 1

Marriage with the ward of a Court without the consent of the Court is a con-
tempt of Court fr).

Object : — The object which a Court has in view in punishing for contempt of
Court is the protection of the public from the evil which will result if the faith in the
authority and justice of the tribunals of the land were impaired (s). ■ .

provisions

See Ss. 480-487 of the Code of Criminal Procedure.

A criminal Court punishing a person for contempt of Court should specifically
record its reasons, the facts constituting the contempt with any statement the
offender may make as well as the finding and sentence ft).

.* In a prosecution under this section against a legal practitioner, he was npt cal-
led upon to make a statement, and no statement as required under s. 481 of the Crim-
inal Procedure Code was recorded, held that this defect in the procedure was fatal to
the prosecution. Held , futher that no person can be punished for contempt of * *

(o) Sitrendra Nath Batter jee , (1883) 10 I. A. 171 : IOC. 109 (P. C.) ; In the matter
of Sashi Bhusan Sarbadhicary, (1 907) 34 I. A. 41 : 29 A. 95 : 11 C. W. N. 273. (P. C.).

(p) Nga Po Ngwe, (1929) 7 R. 355.

(q) Kaulashia, (1932) 12 P. 1 (4).

(r) Phemji Kanji v. Mt. Jeabhai , 108 l: C. 668 :.A. I. R. (1928) Sind. 129, follow-
ing Momjan Bibi, (1916) 42 C. 351 : 19 C. W. N. 290 : ,20 C. L. J. 91 : 26 I. C. 229. *

($) In re. Satyabodha Ram Chandra Addbuddi , (1922) 47 B. 46 ; 24 Bom. L. R -
928 : 23 Cr. L. J. 644 : #9 I. C. 84; A. I. R. (1922) Bom. 426; followed in in
the matter of Habib, (1925) 6 L. 626 : A. I. R. (1926) Lah. (F. B.) 1.

(t) Panchannda Tambiran, (1869) 4 M. H. C. R. 229.

SEC. 228] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 417

Court which is a criminal offence unless the specific offence charged against him be
distinctly stated and an opportunity be given him of answering the case (u).

The procedure laid down in s. 480 of the Criminal Proceduri Code must be
strictly followed (v). The record must show the stage of judicial proceedings
interrupted and the evidence must establish that such interruption was
intentional (w).

A Court proceeding under s. 480 of the Criminal Procedure Code must in
addition to other particulars record the nature of the interruption or insult attri-
buted to the accused (x).

In a conviction under this section the judgment ought to state that the Judge
was sitting in a stage of judicial proceeding, the nature of which should also be
stated (y). *

Jurisdiction : — The Calcutta High Court has no jurisdiction to commit in a
P rocee ding for contempt of a Mofussil Criminal Court (z). The Bom-
e p jj fy High Court has recently held that the decision of the Prrijy Council in Surendra
^wA 3aner/ee (z 1 ) establishes beyond any doubt that the^uris&iction for contempt of
Gburt * n fc be High Courts of this country (a). The Calcutta High Court has
held that although it has inherited all jurisdiction and every power and authority
vested in the Supreme Court and the Sudder Dewany Adalaut, it has not derived the
jurisdiction to commit for contempt of inferior Courts, but has surely jurisdiction
■ tOjpUnish a person on a summary proceeding for a contempt of the High Court (b).
The Calcutta High Court, in an earlier case where the printer and the publisher
were charged with contempt of Court, held that the High Court has power to
proceed by way of contempt in a Court sitting in its original jurisdiction and not
on the Crown side of the Court, even when the contempt is not committed in
Court or during the pendency of a suit fc).

The Allahabad High Court in the Full Bench decision of Santhanand v. Basil-
devanand ( d ) held that the inherent powers of the Supreme Court of Calcutta were
not conferred on the Allahabad High Court by the High Courts Act, 1861, and no
power to punish for contempt of an inferior Court now exists independently of the
Indian Penal Code and the Contempt of Courts Act (XII of 1926).

It seems, the Contempt of Courts Act (Act XII of 1926) restores thejriew taken
in4 / enkat Row (e) which held that the High Court has the common law jurisdiction
ta deal with contempt of an inferior Court, but not under s. 15 of the Charier Act
or s. 107 of the Government of India Act, and supersedes the view taken in
Motilal Ghosh's case (z).

(u) Krishna Chandra Bhownrik, ( J 923) 37 C. L. J. 535, following in re. Edward
Hutchinson Pollard, (1868) L. R. 2 P. C. 100 and Chan Hang Kite, (1909) 6 M. L. T. 9 ; in
tr. Lai Hing, 13 C. W. N. 685.

(v) Paimbar B§ksh, (1889) 11 A. 361 (364).

iwj * In re. Mukati Narasa R*ddi, (1914) 15 Cr. L. J. 621 : 25 I. C. 629 (Mad.).

.fx) DaHp Singh, (1921) 2 L, 308 : I\ L. R. No. 24 of 1922 : 23 Cr. L. j. 9 : 64
I. c. 377.

(y) Prohash Chundir Dass, (1869) 12 W. R. (Cr.) 64.

(t) Molt Lai Ghose, (1913) 41 C. 17.3 : 17 C. W. N. 1253, distinguishing the case
ad Surendra Nath Banerjee, (1883) 10 I. A. 171 : 10 C. 109.
w. (zl) 10 I. A. 172 : 10 C. 109.

(a) In re. Satyabodha Ramchandra, (1922) 47 B. 76 : Bom. L. R. 928: 23

Xr. L. J. 644 : 69 I. C. 84 : A. I. R. (1922) Bom. 406, see Balkrishna Govind Kulharni,
(1921) 46 B. 592.

* (b) In the matter pf Amrita Bdkar Batrika, (1913). 41 C. 173: 17 C. W. N. 1253,
-followed per Shah, J., in Balkrishna Govind Kulharni, (1921) 46 B. 592 : 24 Bom.

* L. If 16 : 23 Cr. L. J. 177 : I. C. 753 : A. I. R. (1922) Bom. 52.

(c) In the matter of Banks and Fenwick, properly kn#wn as the " Englishman ”

* Contempt case*fl869) 26 C. L. J. 401, following Piffard and Captain Francis , (186^)
2 Celebrated Trials 1 .

(d) A. I. R. (1930) A. 225 (F. B.).

(e) (1911) 21 M, L. J. 832 (F. B.) : 12 Cr. L. j. 525 :

12 I. C. 29 3,

418

THE INDIAN PENAL CODE

[ CHAP. XI

A Judge of the Lahore High Court dismissed a petition for revision in limine .
The HSiasat \ $ daily paper of Lahore, in the course of an article called the Judge
* sycophantic ' and accused him of having decided the case under comment not
according to the dictates of justice hut in order to please and carry favour with
others, the Full Bench in Habib's case (f) held on a prosecution for contempt that
the High Court as a Court of Record has jurisdiction to deal summarily with con-
tempt of this nature.

Complaint Under the new law the Court has no alternative but to prefer
a complaint in writing and to forward it to a Magistrate of the first class having
jurisdiction to entertain it(g).

Charge s— I (name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of — , at; ,

intentionally offered insult (or caused interruption) to a public servant, naipcly

to , while he was sitting in a stage of judicial proceeding, to wit — » ■»-***,

(mention the proceeding) by ( mention the insult or interruption) and that you thereby
committed an offence punishable under s. 228 of the Indian Penal Code, and
within my cognizance.

And I hereby direct that you be tried on the said charge.

Sentence Tender of apology by an accused person is not a sufficient justi-
fication in a serious and grave case under s. 3 of the Contempt of Court
Act (XII of 1926) (h).

Essential ingredients of the offence There are three ingredients of this

offence: — ■

(1) there must be an insult or interruption, ^

(2) the insult or interruption must be intentional,

(3) the insult must have been offered or the interruption caused to a public

servant sitting in any stage of a judicial proceeding (i).

intentional insult or interruption to a public servant sitting in judicial
proceeding : — Before a conviction can be had under this section of offering an
msultto a public servant, it must be proved that there was an intention to insulb(j).

Where a coarse expression used by the petitioner was not addressed to the
Court but to his adversary ; even if the expression was actully overheard by the
presiding officer, it was held that this can hardly be treated as an intentional insult
to the Court or interruption of the proceedings and the conviction of the accused
under this section was set aside (k).

An audible remark by a person is not intentionally offering interruption to the
Court so as to constitute an offence under this section. In* cases coming under 4
this section, the Court is both a prosecutor and a Judge * and it is therefore necessary
to see that the powers are used only in exceptional cases (1).

; ,-jk - .

(f) (1926) 6 L. 628 (F. B.) : A. I. R* (1928) L, 1, following Surendra Nath

Saner jee , 10 C. 109 (P. C ), and in the matter of Sashi Bhusan Sarbadhikary,
(1906) 29 A. 95 (P. C.). '

(g) Quadir Batish, (1924) 6 L. 34 (37, 40).

(hi In re, Habib , (1925) 6 L. 528 (F B.) : A. I. R. L. 1, 'following .Gray, (1900)*
2 Q. B. D. 36.

(i) Gopi Chand, (1917) P. L. R. No. %0 of 1918 : P. W. Ri No. 24 of 1918 (Cr!) :
19 Cr. L. J.676: 461. C. 36.

(j) Hurikishen Das*, (1871) 16 W. R. (Cr.) 62. ,

<k) Jit Singh , (1912) P. W. R. No. 23 of 1912 (Cr.) : 13 Cr. L. J. 667 : 16 I. C,
983 *

’{)) Ramaswami Goundan, (1016) 20 M. L. J. 274 : 16 Cr. L. J. 610 : 30 J. C.
434. , * «?

SEC. 228] OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 419

Where the accused in his examination under s. 342 of the Criminal Procedure
Code submitted a long statement in writing in which he called the trial Judg$ ‘ a
prejudiced Judge * the mid-day recess then intervened and at the close of the recess
the Judge inquired of the accused, if he was willing to withdraw the remark but the
accused declined to do so ; the Judge thereupon framed a proceeding under
s. 480 of the Code of Criminal Procedure and convicted the accused under this
section (Shah, J. f dissenting), it was held that the accused was properly convicted
under this section as both the words he used and his conduct showed his intention
to insult the Judge (m).

The Allahabad High Court, in a case where an accused person in an appli-
cation for transfer of the case made against him made an assertion to the effect that
the complainant was a friend of the Magistrate and therefore he would not get a
fair and impartial trial, held that there being no intention on the part of the accused
to insult the Court but merely to procure a transfer of the case, he was not guilty
of an offence under this section (n).

Where, * the Amrita Bazar Patrika Ltd.', scandalised the High Court of
Calcutta and the Chief Justice in his administration thereof, by allegations
implying that the Chief Justice had constituted a packed bench, held that the
test is not whether the article in fact obstructed or interfered with the due course
of justice but whether it is * calculated ' to obstruct and interfere with the due
course of justice, and held further that this was a grave allegation against one of
the litigants that he was attempting to get a Bench constituted in such a way as
would in his opinion give him a favourable decision, it was calculated to
obstruct or interfere with the due course of justice and the article constituted a
contempt of Court (o).

For a conviction under this section there should be an intentional interruption
to the Court (p). Reasonable comment on the decision of a case is justifiable, but
accusing a High Court Judge as not deciding a case according to justice is a con-
tempt (q).

Sir Barnes Peacock, in the ‘ Englishman Printer Contempt case ’ held : ** I am
an unflinching advocate for the liberty of the Press, .and I do not claim for myself
any immunity from unspairing criticism for any of my public acts, but all I claim
is that there shaU be no wilful misrepresentation or concealment of facts wl rich
the person criticising knows to be altogether unfounded. It appears to me that
the public Press as well as the Judges of the Courts are all instruments for the public
good, and, in my opinion, the more public men are submitted to public criticism the
better for the public, provided that the criticism contains no misrepresentations of

or undue concealment.” As Captain Fenwick withdrew the remarks and all
imputations of improper motive on the part of the Chief Justice, the Rule was
discharged (r).

The publication of comments on a case which is pending trial in a
Court amounts to a contempt of Court if the comments are such as are likely to
prejudice the administration of justice in the case (s).

(m) Venkatarao. (1922) 40 B. 73 : 24 Bom. L. R. 380 : 23 Cr. L. J. 326: 00
I. C. 821 : A. 1. R. (1922) B. 201.

(n) Murli Dhar, (1910) 38 A. 284 : 14 A. L. J. 247 : 17 Cr. L. J. 103 : S3 I. C.

043.

to)

(P)

Cr. L. J
( 9 )

M
>

Mati Lai Ghose, (1917) 46 C. 109 (S. B.) at p. 177.

Surendra Nath Banerjee, (1904) 10 C. W. N. 1032: 4 C. L. J. 416: 4
210, followed in Mahadeo Singh, A. I. It. (1926) Nag. 404.

In re. Habib, (1926) 0 L. 628 (F. B.).

In the matter of Banks and Fenwick, (1809) 28 C. L. J. 401 (459).

Maung Tin Saw, (1927) 0 R. 39: A. I. R. (1928) R. 116; tn re. Habib,

(1926) 6 h. 628 (F. B.) : A. I. R. (1920). L. 1.

420

THE INDIAN PENAL CODE

[ CHAP. XI

An accused person, who during the hearing of a case makes an impertinent
threat to a witness in the box, commits an offence under this section (t).

Some latitude should be allowed to a member of the Bar, insisting in the
conduct of his case upon his question being taken down or his objection noted,
where the Court thinks the question inadmissible or the objections untenable.
There ought to be a spirit of give and take between the Bench and the Bar in such
matters and every little persistence on the part of a pleader should not be turned
into an occasion for a criminal trial unless the pleader's conduct is so clearly
vexatious as to lead to the inference that his intention is to insult or interrupt the
Court (u).

Where the plaintiff, who was a daughter of the defendant, instituted a suit in
the original side of the High Court for the recovery of certain properties left by the
plaintiff's mother in the hands of the defendant in trust for the plaintiff and her
sister on the 1st March 1913, and on the next day there appeared in the 4 Bengalee *
and the ‘ Indian Daily News * two separate letters over the signature of the defendant
headed 4 Suit against an Attorney,* the Calcutta High Court called upon the defen*
dant to shew cause why he should not be proceeded for contempt of Court and
held that as the intention of the defendant was not to pre-possess or prejudice the
mind of any person in reference to the matter in dispute and as the publications
did not tend to prejudice a trial the date of which was not then fixed, and
discharged the Rule (v).

No contempt : — No conviction can be had under this section simply because
witnesses in a case give inconsistent evidence and give their evidence relunctantly
and take up the time of the Court (w). Where one of the accused being asked as the
defendant in a civil suit if he had any witness, made no answer and walked out of
Court and the other accused advised him to take this course, it was held that these
facts did not constitute an offence under this section (x). Where the accused, who was
about to be examined as a witness having been directed by the Magistrate to go out
of Court and stay at a place appointed for witnesses, disobeyed the order and came
and listened to the evidence, held that as there was no interruption of the Court's
proceedings the accused was not punishable (y).

A conviction under this section for insulting Court by chewing betel while
urrtfer examination as a witness in the Court of trial was upheld (z).

Where there was no intention on the part of the applicant to insult the Court
but merely to procure a transfer of his case, the Allahabad High Court held that
he was not guilty under this section (a). Where the accused had an altercation
with a chaprashi in the verandah of a Court room but there was no interruption on
the part of the accused to insult the Court, held 9 the accused was not guilty (b).
Where a witness, though persistently asked by the Court to give certain informa*
tion, insisted on giving an indirect answer, the Allahabad High Court held that this
amounted to a refusal to answer questions and that an offence under s. 179 was
committed but it was no offence under this section (c).

(t) Allen, (1922) 45 A. 272 : 21 A. L. 1. 72 : 24 Cr L. J. 756 : 74 I C 260 *

A I. K. (1923) AH. 193.

(u) Dattaraya Venkatesh Belvi , (1904) 6 Bom. L. R. 541 (543).

(v) Khelvamoni ftassi v. Shamal Dhone Dutt, 14 Cr. L. |. 267 : 19 I C 539
(Cal.).

(w) Chotta Hurry, (1871) 15 \V. R. (Cr.) 5.

(x) Abdul Rahiman, (1889) 1 Weir 218.

(y) Papa Naiken, (1882) 1 Weir 217.

(z) Bhabani Mudaliyar, (1883) 1 Weir 217.

(a) Murli Dhar . (1916) 88 A. 284 : 14 A. L. J. 247 : 17 Cr. L. J. 163 : 33 I. C.

643.

(b) Manghai Rant, (1819) 20 Cr. L. J. 777 : 53 I. C. «17 (All.).

(c) Harnamin, A. I. R. (1925) All. 239.

SEC. 229] OF FAI.SE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE 421

Where the Editor and Publisher of the ‘ Marhatta ’ newspaper was called upon
to shew cause under this section for contempt of Court in respect of an article con-
taining certain contemptuous and defamatory matter concerning Mr. Justice
Davar, the Bombay High Court held that any act done or writing published, calculat-
ed to bring a Court or a Judge of the Court into contempt, or to lower his authority
or to obstruct or interfere with due course of justice, or the lawful process of the
Court, is a contempt of Court (d). The Lahore High Court by a Full Bench decision
has recently held that the publication of an article referring to a case which has
been decided may amount to a contempt (e).

Judicial proceedings :—See s. 192, supra .

By s. 82 of the Registration Act a Sub-Registrar is a public officer and proceed-
ings before him are judicial proceedings within the meaning of this section (f).

For the purposes of this section the judicial proceedings are not necessarily
at an end when the sentence is passed, but continue until the prisoner is discharged
or removed in custody (g).

Dis tin ction between trial under Ss« 175 and 228 i — The intention of the
legislature is that a charge under s. 228 as distinct from a charge under s. 175 should
be dealt with in a summary manner under s. 480, Cr. P. Code, or else in a rather
more elaborate manner provided by s. 482, Cr. P. Code, and the latter section is
confined to a case where the Court against whom the offence is committed has
applied its mind in the question to decide if a fine of Rs. 200 will not be
adequate (h).

229. Whoever, by personation or otherwise, shall ^ inten-
tionally cause, or knowingly suffer himself
or assessor ion ° f a juror to t> e returned, empanelled or sworn as a
juryman or assessor in any case in which he
knows that he is not entitled by law to be so returned, empanelled
or sworn, or knowing himself to have been so returned, empanelled
or sworn contrary to law, shall voluntarily serve on such jury
or as such assessor, shall be punished with imprisonment of
either description for a term which may extend to two years, or
with fine, or with both.

Procedure : — Non-cognizable— Summons— Bailable- Not compoundable
Triable by Presidency Magistrate or Magistrate of the first class.

Charge I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

■ " r,,r ■ , at »

to be returned (or empanelled

of

^ ^ ^ _ you knew that you were not

entitled^ be so returned (or" empanelled or sworn) or you knowing yourself to have

-day of

That you, on or about the

intentionally caused (or knowingly suffered) yourself
or sworn) as a juryman (or assessor) in case No. . . .
Uxt hv Dersonafiru? XY when

(d) Iff re. Narashinha Chinalman Kelker, (1909) 33 B. 240 ; 10 Bom. L. R. 104 :
8 Cr L J. 426 : 2 I. C. 288, following Gray, (1900) 2 Q. B. 36 (39), see also tn re*
Mohan Chand Gandhi, (1920) 22 Bom. L. R. 308 : 21 Cr. L J 825.

(e) In re. Habib, (1926) 0 L. 528 (F. B.) : A. I. R. (1920) Lah . I (F.B.) ; following
Gray (1900) 2 Q. B. 36 and in re. Satyabodhi Ramchandra. (1922) 47 B.

'(f) Sardhari Lai, (1874) 13 B. L. R. (App.) 40.

® •itSti ChtndraAdhihary, (1929) 57 C. 1007 : 34 C. W. N. 50 (59).

422 THE INDIAN PENAL CODfe [CHAP. . Jut

been to returned (or empanelled or sworn contrary to law) voluntarily aerved on
•uch jury (or as such assessor) and that you thereby committed an offence punishable
under s. 229 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

1 not entitled by law* : — See s. 278, Criminal Procedure Code, as to the
qualification of a juryman.

CHAPTER XII.

Of offences Relating to Coin and Government Stamps.

This Chapter .is one of the two (the other being Chapter XVII) under which
on second conviction of an offence punishable with imprisonment of either des-
cription for a term of three years and upwards the accused may be sentenced to
transportation for life or ten years’ imprisonment. (See s. 75, supra).

The Authors of the Code explain the policy underlying this chapter as
follows : —

** We have proposed that the Government of India should follow the general
practice of Governments in punishing more severely the counterfeiting of its own
coin than the counterfeiting of foreign coin. It appears to us peculiarly advisable,
under the present circumstances of India, to make this distinction. It is much to
be wished that the Company’s currency may supersede the numerous coinages which
are issued from a crowd of mints in the dominions of the petty Princes of India.
It has appeared to us that this object may be in some degree promoted by the law
as we have framed it. That coinage, the purity of which is guarded by the most
rigorous penalties, is likely to be the most pure ; and that coinage which is likely
to be the most pure will be the most readily taken in the course of business.

“ It is not very probable that any person in this country will employ himself
in making counterfeit sovereigns or shillings ; but should so improbable an event
occur, we think that the King's coins should have the same protection which is
given to the coin of the Local Government

“ It appears to us, however, that the offence of coining, though, in an arbitrary
classification, it may be called by the technical name of treason, is in substance an
offence against property and trade, and that it is an offence of very nearly the same
land as forging of a bank-note and that it would be an offence of exactly the same
kind if the bank-note, like the notes of the Bank of England formerly, were in all
cases legal tender, or if the coin, like the Company’s gold-mohur at present, were
not legal tender. We do not therefore conceive that in proposing a law for
punishing the counterfeiting of the King’s coin, we are proposing a law which can
reasonably be said to affect any of the royal prerogatives ’’ (i).

Mayne in his valuable commentary deals with the offences of * Coining/

* Forgery * and ‘ Merchandise Marks ’ in the same Chapter as he says, “all agree
in this,' that the intention of the offender is to produce, or pass off upon another,
something which professes to be what it really is not ” (j).

230. Coin is metal used for the time being as money, and
• Com • defined. stamped and issued by the authority of some
State or Sovereign Power in order to be so

used.

S Hotel.

Mayne, ' Criminal Law of India,' 3rd edition p. 807.

SEC. 230] OFFENCES RELATING TO COIN 423

Queen’s coin is metal stamped and issued by the authority
o, rrtin of the Queen, or by the authority of the

yuecn & coin. « . f * j« c ,i />

Government or India, or or the Government
of any Presidency, or of any Government in the Queen’s domi-
nions, in order to be used as money ; and metal which has been
so stamped and issued shall continue to be the Queen’s coin for
the purposes of this Chapter, notwithstanding that it may have
ceased to be used as money.

Illustrations .

(а) Cowries are not coin .

(б) Lumps of unstamped copper, though used as money, are not coin.

(c) Medals are not coin, inasmuch as they are not intended to be used as money.

(d) The coin denominated as the Company's rupee is the Queen's coin.

[(*) The 44 Farukhabad " rupee, which was formerly used as money under the
authority of the Government of India, is Queen’s coin although it is no longer so used.}

Legislative changes : — The first paragraph of this section was substituted
for the original paragraph by the Indian Penal Code Amendment Act, 1872, (XIX
of 1872).

The second paragraph beginning with * Queen’s coin

used as money ’ was substituted for the original paragraph by the Indian . Penal
Code Amendment Act, 1896 (VI of 1896), s. 1 (I).

The illustration (e) was added by the Indian Penal Code Amendment Act, 1869
(VI of 18%), s. 1 (2).

Coin : — Prior to 1872 the definition of coin was ‘ metal stamped and issued by
the authority of some Government.* The word * Government * as defined by
s. 1 7, supra , denotes the person or persons authorised by law to administer execu-
tive Government in any part of British India.

It therefore followed that coin of Native State was not coin within the meaning
of this section. The definition of coin was accordingly amended by Act XIX of

1872.

* used for the time being as money 9 A coin obsolete or no longer in
use is not then ’coin* within the meaning of the definition as given in this section, for
example, gold coin of the time of Akbar (k), or the gold mohur of the time of Shaha-
jahan (I) are not coins within the meaning of this section inasmuch as they cannot
for the time being be used as money (m). The present definition of # coin ’ is wider
than the words ‘ legal tender ’ (n).

Queen’s coin : — The test whether a piece of coin is or is not Queen's coin
depends upon whether it is stamped and issued by the authority of the King, or by
the authority of the Government of India, or the Government of any Presidency or
of any Government in the King v s dominions. For example, Murshidabad rupees
stand in the samefooting as Furrukabad rupees and are therefore 'Queen's coins' (o).
Coin is still ‘ Queen's coin ' though it has ceased to be used as money. Clipping
and cutting coin and making it deficient in weight is an offence (p). It is the duty
of the Magistrate to find, whether the coins were King's coin or not, whether any

(k) Bapa Yadao, (1874) 11 B. H. C. (Cr. C.) 172.

(l) Khushali , (1906) 29 A. 14L

(m) Kunja Beharee , (1873) 6 N. W. P. H. C. R. 187.

(n) Ibid .

(o) B$ni t (1905) 28 A. 62 ; Gopal, (1003) A- W. N. 115.

(p) Mahiab Rai t (1925) 48 A. 603 : 24 A. L. J. 842 : A.

I. R. (1926) A. 321.

THE INDIAN PENAL CODE

424

[CHAP. XII

offence was committed under s. 230 and not to refer to the High Court to enable
the accused to obtain a ruling of the High Court on the point (q).

231. ' Whoever counterfeits or knowingly performs any
^ part of the process of counterfeiting coin.

Counterfeiting com, 1 li 1 • 1 j • i • ° t

shall be punished with imprisonment or
either description for a term which may extend to seven years,
and shall also be liable to fine.

Explanation .~A person commits this offence who intending
to practise deception, or knowing it to be likely that deception
will thereby be practised, causes a genuine coin to appear like
a different coin.

The offence of counterfeiting or knowingly performing any part of the process
of counterfeiting coins is punishable by this section and the next section.

Scope : — To constitute an offence under this section it is not necessary that the
counterfeit coin should be made with the primary intention of its being passed as
genuine^; it is sufficient if the resemblance to genuine coin is so close that it is
capable of being passed as such (r). It is not essential for coins to be counterfeit
that tbfcy* should be exact resemblance of genuine coin (s).

4 counterfeits 9 : — For the definition of the word ‘ counterfeit * see s. 28,
supra .

Stephen says : — “ A counterfeit coin means a coin not genuine, but resembling
or apparently intended to resemble or pass for genuine coin and includes genuine
coin prepared or altered so as to resemble or pass for coin of a higher denomina-
tion ” (t). Under the law in England, also, it is not necessary that the resemblance
should be exact, for a trifling variance from the real coin in the inscription, effigies
or arm. will not take the case out of the statute (u). Similarly, where the counter-
feit coin was made to resemble the smooth-worn shillings then in circulation,
without any impression upon them, the case was held to be within the statute (v).
In England it was formerly provided by 2 Will, IV. c. 34 that it did not amount
to counterfeiting coin where the imitation of the real coin had not proceeded so far
as to fabricate a false coin sufficiently perfect to be circulated. Accordingly it was
held in a case where the impression of money was forged on an irregular piece of
metal not rounded, without finishing it so as not fc> be in a state to pass current,
the offence was held to be incomplete (w). But sinfce the passing of 24 and 25 Viet,
c. 99, s. 30 the law has been amended in England and Verley s case is no longer good
law and now the offence of counterfeiting is held to be complete although the coin
be not in a state fit to be altered or the counterfeiting is not perfect. This
provision of the English law has been incorporated in the definition of ‘counterfeit,’
sec s. 28, supra, Explanation I .

The offence constituted by this section consists in the faot of the counter-
feiting. It is not necessary to show that the coins were uttered, or that there was

(q) Mohesh Sonar , (1907) 12 C. W. N. 606.

(r) Quadir Baksh, (1907) 30 A. 93.

(s) Amrit Sunar, (1919) 4 P. L. J. 525.

(t) Stephen Dig. Cr. L., Art. 408. &

(u) I, Hale, 216.

(v) R. v. Wilson . (1786) 1 Leach 364 ; John and Patrick Welsh , (1786) 1 East

P. C. 164 ; R. v. Byrne , (1865) 10 Cog. C. C. 107 ; J?. v. Robinson , (1879) 4 Q. B. D.
284. A ”

(y)" Varley, (1771) 1 Lea$h 76.

OFFENCES RELATING TO COIN

425

SEC. 231 ]

any attempt to utter them. Making a counterfeit coin, to see whether it would
answer the purpose, or even as a specimen to put in a cabinet would be sufficient (x).

Counterfeiting coin : — * Coin * as defined in the last section implies a metal
used for the time being as money and as such current coin. - /

So where a person counterfeited a coin of the time of the Emperor Akbar
was held to have committed no offence under this section (y). It is not necessary
that the coin should be a legal tender — all that is required is that it should be for
the time being used as money, because it is so declared by Government or because
it is customary. As an instance of the latter, persons counterfeiting Kulder and
Joypur gold mohurs were held guilty under this section (z). So where certain
copper pieces struck by the Nawab of Lohara were used by merchants in various
parts of the country though their issue was unauthorised, it was held that the pieces
of copper were not counterfeit coin (a).

Explanation— * intending to practise deception * : — It follows from the
definition of 4 counterfeit * in s. 28, supra , that intention to practise deception is the
essential ingredient of the offence under this section. See Explanation 2, s. 28,
supra , for proof of such intention.

Such an intention can be gathered from the closeness of imitation. *

Where the accused was charged with removing the 4 Kunda * and wqfk u|> tjbe
face of the coin where the * Kunda * had been attached, it has been held that he was
not guilty of an offence under Ss. 232, 233 (b). Where the genuine sovereign had
been filed at the edges to such an extent as to reduce its weight by and to
remove the milling almost entirely and a new milling had been added in order to
restore the appearance of a coin, it was held that the coin was counterfeit fc).

If the coins are not finished then the case will come within the latter portion
of the section as where the defendant was caught in the act of making counterfeit
shillings by cutting them into round blanks, composed of brass and silver in
acqua fortis none of which were finished but exhibited the appearance of lead,
though by rubbing they readily appeared to be silver and would pass as current
coin (d).

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

The Prosecution will have to prove —

(1) that the accused counterfeited, or performed any part of the process of

counterfeiting ;

(2) that the thing counterfeited or intended to be counterfeited was a coin ;

(3) that the accused did so knowingly.

To prove the offence of counterfeiting it is seldom possible and never necessary
to show that the defendant has been caught in the act of counterfeiting. The act
will generally have to be inferred from such evidence as the possession of tools,
dies, or metal necessary for the purpose ; or from finding some coins finished and the
others unfinished, or different coins in a different state of completion (e).

(x) 1 East P. C. 165.

(y) Bapu Yadav , (1874) (Cr. C.) B. H. C. 172.

(s) Kunj Beharee, (1868) 5 N. W* P. H. C. R. 187.

(a) Premsook Das, (1870) P. R. No. 38 of 1 870.

(b) Muhammed Hossain , (1900) 23 A. 420.

(c) Herman^ f (1879) 4 Q. B. D. 284. *■■■

(d) R. v. Lavty, (1776) 1 Leach 153. .

(e) Reg. v. Roberts p Dears C, C. G39 : 25 L. J. M. C; A7.

426

THE INDIAN PENAL CODE

[CHAP. XII

The mere possession of counterfeit coin by a person who has had nothing to
do with its manufacture is no offence under this section but may be an offence
under Ss. 237-243.

Where the accused is charged with performing any part of the process of coun-
terfeiting coin something more than a mere preparation for counterfeiting, such as,
collection of tools and materials is necessary. It must be proved that the accused has
reached some stage of the process itself and that the accused could have no other
object but to commit the offence.

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at

counterfeited (or knowingly performed any part of the process of counterfeiting

to wit — ), a coin (or King's coin), to wit , and that

you thereby committed an offence punishable under s. 231 (or s. 232, in case the
coin he the Kings coin ) of the Indian Penal Code and within the cognizance of the
Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

232. Whoever counterfeits, or knowingly performs any

Counterfeiting Queen’s part of the process of counterfeiting the
coin- * Queen *s coin, shall he punished with trans-

portation for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to
fine.

This section only provides for a heavier punishment in cases where the coin
counterfeited is the King’s coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge — has been set out under the last section.

Sentence : — Separate sentence under s. 232 and s. 235 is illegal (f).

233. Whoever makes or mends or performs any part of the
Making or selling P^ess of making or mending, or buys,

instrument for counter- sells or disposes of, any die or instrument,
f ci tmg com. for the purpose of being used, or knowing

or having reason to believe that it is intended to be used for the
purpose of counterfeiting coin, shall be punished with imprison-
ment of either description for a term which may extend to three
years, and shall also be liable to fine.

Reason to believe — s. 26. Counterfeiting — s. 28.

This section and the next deal with the same offence, the latter providing for
heavier punishment as the coin affected is the King’s coin. Both these sections
f p.lff it a substantive offence to make or sell dies or instruments used in the manu-
facture of coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

(f) Bishan Das, (1023) 5 L. L|j. 272 : 24 Cr. L. J. 236 : 71 t.C. 700 f A. I. R.
( I9 ?4) Lah. 78. ■■

SfeCS. 234-35] OFFENCES RELATING TO COIN 427

In case of previous conviction under this chapter the accused should be com-
mitted to take his trial before the Court of Session (g).

Charge s— See form set out under s. 234 (next section).

234. Whoever makes or mends, or performs any part of the
Making or soiiing in- process of making or mending, or buys, sells

strumcnt for counter- or disposes or, any die or instrument, for the
feitmg Queen’s com. purpose of being used, or knowing or having

reason to believe that it is intended to be used, for the purpose of
counterfeiting the Queen’s coin, shall be punished with imprison-
ment of either description for a term which may extend to seven
years, and shall also be liable to fine.

Intention is an essential ingredient of the offence : — Neither the last
section nor the present one speaks of intention but the expressions used ‘ for the
purpose of being used,’ or * that it is intended to be used for the purpose of counter-
feiting ' imply that an innocent maker of a die or instrument cannot bis punished
under S$. 233 and 234. So where the prisoner ordered a die-sinker to sink dies
which would impress the observe of a shilling and the die-sinker was told that the
dies were required for counters of two whist clubs, but he suspecting fraud con-
sulted the officers of the Mint and under their direction executed the order. The
dies were afterwards used for counterfeiting coins. It was held that the die-sinker
was an innocent agent and the prisoner who had ordered the dies was alone
guilty (h).

Procedure s— Cognizable —Warrant— Not bailable — Not compoundable

Triable by Court of Session.

Charges— I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

did make (or mend or perform any part of the process of making or mending, to

wit f or buy, or sell, or dispose of) a certain die (exhibit )

(or instrument) for the purpose of being used (or knowing or having reason to

believe that it was intended to be used) for counterfeiting a coin, to wit

(orap iecc of King's coin to wit ) and that you thereby committed

an offence punishable under s. 233 (or s. 234 if the coin be King's coin )

of the Indian Penal Code, and within the cognizance of the Court of Sessions
(or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

235. Whoever is in possession of any instrument or

material, for the purpose of using the same
mon°' SS or 10 materi"i St for for counterfeiting coin, or knowing or having
the purpose of using the reason to believe that the same is intended
same for counterfeiting ^ bfi ^ fa that purpose, shall be punished

with imprisonment of either description for
a term which may extend to three years, and shall also be liable
to fine ;

(g) See section 348, Criminal Procedure Code.

(h) Benjamin Batmen , (1844) 2 Moody. 309. «

428

THE INDIAN PENAL CODE

[CHAP. XII

and if the coin to be counterfeited is the Queen’s coin, shall
be punished with imprisonment of either
i {.ueen com. description for a term which may extend to

ten years, and shall also be liable to fine.

This section punishes a person who is in possession of instrument or material
for the purpose of using the same for counterfeiting coin or King’s coin.

' Analogous law ’ This section and the other sections dealing with coin

generally have been taken from the English Law.

Under the English Law dealing with offences relating to coin the term * posses**
sion ’ is wider. ‘ Having any instrument or material in possession * includes ‘ not
only the having it by himself in his personal custody or possession, but also the
knowingly and wilfully having it in actual custody or possession of any other person,
and also the knowingly or wilfully having it in any dwelling house, or other building,
lodging, apartment, field or other place, open or enclosed, whether belonging to or
occupied by himself or not, and whether such matter shall be so had for his own use
or benefit^ or for that of any other person ’ fi).

Scope 2 — Under this section it is an offence to be in possession of any instru-
ment or material for the purpose of using it for counterfeiting coin, or with the
knowledge or belief that it was intended to be so used. Under this section it will
be a question whether the instruments or material were such as could and would
be used for such criminal purposes. The rudeness of the contrivance is of no
importance, if the object is found as a fact (j).

Procedure : — Cognizable — Warrant — Not bailable Not compoundable

Triable by Court of Session if the offence affects King’s coin ; otherwise — Triable
by the Court of Session, Presidency Magistrate or Magistrate of the first class.

In the case of a previous conviction of the accused of an offence under this
Chapter he should be committed to take his trial before the Court of Session (k).

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

were in possession of a certain instrument (or material) to wit

( mention it) for the purpose of using the said instrument for counterfeiting a coin

to wit (or a piece of King's coin) (or knowing or having reason to

believe that the said instrument was intended to be used lor the purpose of coun~
terfeiting, etc.) and thereby committed an offence punishtyi^e under s. 235 of the
Indian Penal Code and within my cognizance or the cognisance of the Court of
Session. *

And I hereby direct that you be tried (by the said Court) on the said charge.

Sentence : — Separate sentences cannot be passed on an accused convicted
under s. 232 and this section as s. 71, supra, would bar the same.

When a man is being convicted for being in possession of instruments or
materials for counterfeiting coin, it is hardly right to convict him separately for being
in possession of various parts of such instruments or materials (1).

Possession of any instrinnent or material 2 — As Batty, J., observed :

The mere physical relation arising from the position of the object is insufficient.

(i) Coinage Offences Act. 1861 (24 and 26 Viet. c. 96, s. 1).

(j) Ridgelley's Case, (1778) 1 Leach 189 : 1 East P. C. ]

(1924) 6 L. 392.

(k) S. 348, Criminal Procedure Code.

(l) Allah Wadhya, A. I. R: (1930) L. 61.

171 ; Khadim Husain ,

SEC. 235]

OFFENCES RELATING TO COIN

429

The possession contemplated is not possession which has never been voluntary :
and for the purpose of bringing home to any person the voluntary possession of
any object, the mere proof of a fact of which he knows nothing would be valueless.
The section, no doubt, also requires in the accused person intention or knowledge
as to the use to be made of the objects in possession, and these might be implied
from the nature of the objects themselves. But before lhat stage is reached, there
must be some circumstances indicating such intention or knowledge as is inseparable
from the notion of conscious retention implied in the word * possession.’ Such
indication may arise from the position of the object in a place which is constantly
used by the person accused and which could not be overlooked by him or from
the bulk of the object itself or from any circumstances, such as the locking up of
the object which would point to voluntary and conscious possession” (m).
Ashton, J., in the same case did not share this view and held : ” I think that if we
introduce ' conscious ’ or ‘ voluntary ’ before the word ‘ possession ’ where that
word is not qualified in a section of the Indian Penal Code, we shall be legislating
instead of administering the law, with inconvenient consequences such as shifting
the burden of proof indicated by sections 1 14 and 106 of the Indian Evidence Act
and even altering the substantive criminal law ” (n). *

According to the definition of * possession ’ in s. 27, supra , which governs this
section also, an instrument for counterfeiting coin will be in the possession of the
accused if it is in the possession of such person’s wife, clerk or servant on account
of that person.

The Calcutta High Court in a Full Bench decision, where the accused was
charged under s. 243, has held that the knowledge that the coin was counterfeit
must be proved not only from the time when the accused became consciously
possessed of it, but also from the time when his clerk became possessed of it on
his account and that a direction to the Jury to the contrary has been held to be a
misdirection (o).

Evidence of possession : — In one case Weeks and two other men and two
women were indicted for having in their possession a mould impressed with one
side of a half-crown. Weeks was absent during the search of his house conducted
by the police. The two men attacked the police, while one of the women, the wife
of Weeks threw into the fire something which subsequently was discovered to be a
wet-mould of a half-crown made of plaster of Paris. Some days after Weeks had
passed a bad half-corwn but there was no evidence of its having been made at the
mould found in his hciuse, still Weeks was held guilty (p). The fact of the wife
attempting to break upcoming instruments at the time of her husbands’ arrest has
been held to be no evidence of possession. It has further been held that where
coining instruments were found in a house occupied bjT a man, his wife and a boy
aged ten, it is going too far to hold that the boy was in joint possession with either
of his parents (q). Possession of other pieces of base coin or the fact that the base
coin has been passed off at other times, either before or after the offence charged
in the indictment will be evidence of such a guilty knowledge (r).

What are coining instruments ?— They have not been defined in the Code
but the following have been held to be coining instruments : — A mould upon which

. (nl) Hari Moniram Sonar, (1904) 0 Bom. L. R. 887 at pp. 888, 889, following
Mathdri, (1882) 6 B. 731.

(n) Ibid. p. 894.

(o) Fatteh Chand Agarwallu, (1918) 44 C. 477 : 21 ('. W. N. 33 : 24 C. L. J. 400,
see also Ngo San Nyne, (1915) 8 Bur. L. J. 131 : 28 I. C. 152.

(p) Weeks , (1861) 8 Cox C. C. 458 : 30 L. J. M. C. 141.

(q) Boober, (1850) 4 Cox. C. C. 272.

(r) Rex v. Harrison , (1779) 2 Lewiq 118 ; Natan Chand, (1884) 8 B. 223.

430

THE INDIAN PENAL CODE

[CHAP. XII

is inverted the device of a shilling (s), a collar of iron for. graining the edges of
counterfeit coin (s), a press of coinage (u), a puncheon of iron upon which is im-
pressed the inverted device of a shilling (v), and a galvanio battery (w).

In Punjab in a case where the accused was found in. possession of a box con-
taining instruments for counterfeiting coin and it appeared that two other brothers
of the accused had access to the box, and that it was not proved that any property
of the accused was in it, it was held that the accused could not be convicted as there
was no evidence of conclusive possession by the accused (x).

236. Whoever, being within British India, abets the
Abetting in India the counterfeiting of coin out of British India,

counterfeiting out of shall be punished in the same manner as if
n wo com. he abetted the counterfeiting of such coin

within British India.

British India— s.15. Counterfeiting— s. 28.

Abeter-s. 107. Coin-s.230.

This section punishes abetment of the offence of counterfeiting of coin in
foreign territory and enacts that the abettor shall be punished in the same manner
as if he had abetted the counterfeiting of such coin in British India. But in such
case * Abetment in British India ' must be complete.

Procedure: — Cognizable — Warrant — Not bailable — Not compoundable —
and is exclusively triable by a Court of Session.

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the — day of— , at-; ,

being in British India abetted XY resident in , out of British India,

in the counterfeiting of coin (or King’s coin) by (specify the act),

and you thereby committed an offence punishable under s. 236 of the Indian
Penal Code, and within the cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

237. Whoever imports into British India, or exports
import or export of therefrom, any counterfeit coin, knowing

counterfeit coin. or having reason to believe that the same is

counterfeit, shall be punished with imprisonment of either des-
cription for a term which may extend to three years, and shall also
be liable to fine.

British India — s. 15. Coin — s. 230.

Counterfeit — s. 28. Reason to believe— s. 26.

■ *

Analogous law : — This section and the next are borrowed from the English
law 27 and 28 Viet., c. 47, s. 2 and punish import or export of counterfeit coin or
King’s coin.

(s) Lettnard, (1772) 1 East P. C 170. *

(t) Morre, (1826) 2 C. & P. 236.

(u) Bell. (1763) 1 East P. C. 169.

(v) Ridgeley, (1778) 1 Leach 189.

(w) Cover, (1863) 9 Cox. C. C. 282.

(x) Abdul Majid, (1903) p. L. R. No. 7 of 1904 ; Amrita Sonar, (1919) 4 Pat.
L. J . 696 : (1919) Pat. Supp. C W. N. 290 : 20 Cr. L. J. 439 : 61 I. C. 26S.

SECS. 298-39 ]

OFFENCES RELATING TO COIN

431

. Procedure Cognizable — Warrant — Not bailable— -Not compoundable —
Triable by Court of Session. Presidency Magistrate or Magistrate of the first class.

If the accused was previously convicted of an offence under this Chapter he
should be committed to take his trial before the Court of Session (y).

Charge I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the — day of— ,at ,

imported into (or exported from) British India, certain pieces of coin (or King’s

coin) to wit ( mention the quantity and name of the coin) then knowing

(or having reason to believe) that the same were counterfeit, and that you thereby
committed an o/fence punishable under s. 237 (or s. 238 if the offence relates to
King’s coin) of the Indian Penal Code and within my cognizance (or the cognizance
of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

238. Whoever imports into British India, or exports there-
from, any counterfeit coin which he knows
Queen’s 1 cdn eXP ° rt ° or has reason to believe to be a counterfeit
of the Queen’s coin, shall be punished with
transportation for life, or with imprisonment of either description
for a term which may extend to ten years, and shall also be
liable to fine.

British India — s. 15. Coin — s. 230.

Counterfeit— s. 28. Reason to believe— s. 26.

This section is the same as the last ; only it provides for a heavier punishment
as the coins imported or exported relate to King’s coin. In other respects they are
the same and require the same proof.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge : — See form set out under the last section.

239. Whoever, having any counterfeit coin, which at the
Delivery of coin, pos- time when he became possessed of it he
sessed with knowledge knew to be counterfeit, fraudulently or with
that it is ^counterfeit. j ntent that fraud may be committed, delivers

the same to any person, or attempts to induce any person to
receive it, shall be punished with imprisonment of either des-
cription for a term which may extend to five years, and shall
also liable to fine.

Counterfeit — s. 28. # Fraudulently — s. 25.

Possessed«—s. 235, also s. 27.

This and the next four section} (Ss. 240-243) deal with the uttering of counter-
feit coins.

The Authors of the Code observe : — ” An utterer by profession, an utterer
who is the agent employed by the coiner to bring counterfeit coin into circulation,
is guilty of "a very high offence. Such an utterer stands to the coiner in a relation
not very different from that in which a habitual receiver of stolen goods stands to

”■ ______

(y) See a.«848, Criminal Procedure Code.

432

THE INDIAN PENAL CODE

[QHAP. XII

a thief. He makes coining a far less perilous and a far more lucrative pirsuit than
it would otherwise be. He passes his life in the systematic violation of the law,
and in the systematic practice of fraud in one of its most pernicious forms. He is
one of the most mischievous and is likely to be one of the most depraved of crimi-
nals. But a casual utterer, an utterer who is not an agent for bringing counterfeit
coin into circulation but who, having heedlessly received a bad rupee in the
course of his business, takes advantage of the heedlessncss of the next person with
whom he deals, to pay that bad rupee away, is an offender of a very different class. He
is undoubtedly guilty of a dishonest act, but of one of the most venial of dishonest
acts. It is an act which proceeds not from the greediness for unlawful gain, but from
a wish to avoid, by unlawful means, it is true, what to a poor man may be a severe
loss. It is an act which has no tendency to facilitate or encourage the operations of
the coiner. It is an occasional act, an act which does not imply that the person
who commits it is a person of lawless habits. We think, therefore, that the offence
of a casual utterer is perhaps the least heinous of all the offences into which fraud
enters. ”

44 We considered whether it would be advisable to make it an offence in a
person to have in his possession at one time a certain number of counterfeit coins,
without being able to explain satisfactorily how he came by them. It did not, after
much discussion, appear to us advisable to recommend this or any similar pro-
vision. We entertained strong objections to the practice of making circumstances
which are in truth only evidence of an offence, part of the definition of an offence :
nor do we see any reason for departing in this case from our general rule. ”

” Whether a person who is possessed of bad money knows the money to be bad,
and whether, knowing it to be bad, he intends to put it in circulation, are questions
to be decided by the tribunals according to the circumstances of the case, circum-
stances of which the mere number of the pieces is only one and may be one of the
least important. A few bad rupees which should evidently be fresh from the stamp
would be stronger evidence than a greater number of bad rupees wl^h appeared
to have been in circulation for years. A few bad rupees, all obviotfsfy coined with
the same die, would be stronger evidence than a greater number obviously coined
with different dies. A few bad rupees placed by themselves, and unmixed with
good ones, would be far stronger evidence than a much larger number which might
be detected in a large mass of treasure ” (z).

Scope of this section and s. 240 : — It has been held 44 that the q {fence for
which punishment is provided is not the offence committed by the coiner ”

Mayne in his valuable commentary classifies three classes of oilences created
by Ss. 239-243:-

44 Firstly, passing off coin known from the first to be counterfeit.

44 Secondly, passing off such coin which was for the first time discovered to
be counterfeit after the receipt. **

44 Thirdly, being in wrongful possession of coiif known all along to have been
counterfeit. ,* *

44 Further sub-divisions of classes first *bnd third arise, according as the
counterfeit coin is the King's coin or otherwise” (b). *

‘ which at the time he became possessed of it, he knew to be counter-
feit ’ s—These word, point to a person other than the coiner, thafjs to say, the

(z) Note 1.

(a) Sheobux, (1871 ) 3 N. W. P. H. C. R. 160.

(b) Mayne ^Criminal I.aw of India, ’ 3rd Edition, p. 810.

OFFENCES RELATING TO COIN

SEC. 239 ]

433

person who procures* or obtains* or receives counterfeit coin. It is against such
a person that the section is directed (c).

It is provided in the Indian Evidence Act : " A is accused of fraudulently deli-
vering to another person a counterfeit coin which at the time he delivered it* he
knew to be counterfeit. The fact that* at the time of its delivery* A was possessed
of a number of other pieces of coin is relevant. The fact that A had been previously
convicted of delivering to another person as genuine a counterfeit coin knowing it
to be counterfeit is relevant " (d).

Direct proof of such guilty knowledge is not possible always or not available.
Such guilty knowledge at the time of possession may be inferred from surrounding
circumstances* e.g when a Sonar (goldsmith) made two attempts to pass spurious
coins* and made a false statement as to how he came by them (e).

Under Ss. 239 and 240 it is essential to prove that at the time the accused
became possessed of the coin he knew it to be counterfeit, whether he was in pos-
session of the coin himself* or his wife, clerk or servant was in possession on his
behalf at that time (f). In that Full Bench case, the accused was charged under
s. 243 where the Calcutta High Court by a majority decided that a direction by the
trial Judge to the Jury that the accused was fraudulently or with fraudulent inten-
tion in possession, having known at the time he became aware of the possession
* that the coin was counterfeit * was a misdirection (g).

Evidence that the prisoner had uttered false coins previously to the offence
charged was always held to be admissible whether the other coins were or were not
of the same description (h).

Guilty knowledge at the time of receipt was inferred where an accused offered
as genuine two gold mohurs for two rupees and he made false statement as to how
he came by them (i).

* fraudulently delivers * s — Another ingredient of the offence under this
section is that the delivery must be 1 fraudulently,’ or with intent that fraud may be
committed.

It was held in England that no offence was committed by giving a counter-
feit half-corwn to a woman who asked for charity (j). The correctness of this
decision was doubted by Lord Denman, C. J. t in a case where the prisoner gave a
counterfeit coin to a girl with whom he had connection, the offence of uttering was
held to be complete (k). In alater case Alderson, B., said that Reg . v. Page
had been overruled and held that the intent to defraud would be inferred by law
from the passing off a false coin as a good one (1). It does not make any difference
that the person to whom the counterfeit coin is delivered refuses to accept the
same* (m).

Procedure : — Cognizable — Warrant — Not bailable Not compoundable— -

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

^ __ »

(c) Sheobux, (1871) 3 N.*W. P. H. C. R. 160.

(d) S. 14 ill. (6), Indian Evidence Act (I of 1872).

(e) Parushullah Muttdal v.JKheroo Mundal, (1874) 23 W. R. (Cr.) 4.

(f) Per Mukerjee, J., in Fateh GSand Aganvalla, (1918) 44 C. 477 (F. B.) : 21
C» W. N. 33 (6?) : 24 C. L. J. 400 (421).

(g) Ibid.

(h) Ball. (1808) 1 Camp. 326 : Foster. (1866) Dears C. C. 460 : 24 L. J. M. C.
134 : 6 Cox. C. C. 621 ; Harrison, (1834) 2 Lewin, 118.

(i) GariB Sheik, (1874) S3 W. R. (Cr.) 4.

(j) Keg. v. Page. (1837) 8 C. and P. 122.

(k) Anon, (1846) 1 Cox. C. C. 260. „ _

(l) Ion, (1862) 2 Den. C. C. 476 (484) ; see also Bedford, (1844) 1 Den. C. C. 69.

(m) Welsh, (1861) 2 Pen. C. C. 78 ; 20 L. J. M, C. 101.

34

434

THE INDIAN PENAL CODE

[CHAP. XII

Where the accused had previously been convicted of an offence under
this Chapter he should be committed to take his trial before the Court of Ses-
sion (n).

Separate conviction under this section and section 243 not proper

As this section implies prior guilty possession of counterfeit coin, it has been held
that a person, who has four counterfeit coins in his possession and utters one of
them, cannot be separately convicted under this section of delivering one rupee and
under s. 243 of possession of the other three (o).

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at ,

having in your possession , pieces of counterfeit coin (or King*s

coin), exhibits in the case, known as , knowing at the time you became

possessed of the said coins that they were counterfeit, fraudulently (or with intent
that fraud might be committed) delivered the same to XY (or attempted to induce
XY to receive the same) and thereby committed an offence punishable under s. 239
(or s. 240 if the pieces of counterfeit coins are King's coin) of the Indian Penal Code
and within my cognizance (or the cognizance of the Court of Session or the High
Court).

And I hereby direct that you be tried by the said Court (in cases tried by Magis-
trate, omit these words) on the said charge.

240. Whoever, having any counterfeit coin which is a
Delivery of Queen's counterfeit of the Queen’s coin, and which,

coin possessed with at the time when he became possessed or it,
knowledge that it is be knew to be a counterfeit of the Queen’s
coun er ei coin, fraudulently or with intent that

fraud may be committed, delivers the same to any person, or
attempts to induce any person to receive it, shall be punished
with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

This section is the same as the previous section ; only it prescribes a heavier
punishment because the counterfeit coin affected is the King’s coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge t — See form set out under the last section.

241. Whoever delivers to any other person as genuine.
Delivery of coin as or attempts to induce any other person to

genuine which, when receive as genuine, .any counterfeit coin
vercr did not know to which he knows to be counterfeit, but
be counterfeit. which he did not know to be counterfeit

at the time when he took it into his possession, shall |ie punished
with imprisonment of either description for a term which may
extend to two years, or with fine to an amount which may extend
to ten times the value of the coin counterfeited or with both.

(n) S. 348, Criminal Procedure Code.

(o) Lakshia, (1884) Rat. tJijrep. Cr. C, 202,

SEC. 242]

OFFENCES RELATING TO COIN

435

Illustration .

A t a coiner, delivers counterfeit Company's rupees to his accomplice B, for the
purpose of uttering them. B sells the rupees to C, another utterer, who buys them
knowing them to be counterfeit. C pays away the rupees for goods to D, who re-
ceives them, not knowing them to be counterfeit.* D after receiving the rupees, dis-
covers that they are counterfeit and pays them away as if they were good. Here
D is punishable only under this section, but B and C are punishable under section 239
or 240, as the case may be.

Counterfeit— s. 28. Possession— Ss. 231 and 27.

This section deals with a casual utterer of base coins as opposed to professional
utterers dealt with under Ss. 239 and 240.

Scope : — The offence under this section consists in trying to pass off as genuine
a coin which the accused had honestly received, but has subsequently found out
to be counterfeit. No offence is committed where the coins are not delivered as
genuine (p).

A vagrant entered a shop for drink and the shop-keeper suspecting that
he had come to commit theft, shut the door and called a watchman when the vagrant
ran away and meeting one Munglee put some coins into his hand and told him to
pick them for him. The coins were found to be counterfeit. It was held that the
vagrant could not be convicted under this section as it did not appear that he had
passed the coins as genuine or induced Munglee to receive them as genuine (q).

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable

Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

delivered to XY as genuine (or attempted to induce XY to receive as genuine) a

coin, exhibit , w r hich was counterfeit and at the time of such

delivery (or attempt) you knew the same to be counterfeit though you did not know
it to be counterfeit when you became possessed of the said coin, and you thereby
committed an offence punishable under s. 241 of the Indian Penal Code and
within my cognizance.

And I hereby direct that you be tried on the said charge.

242. Whoever, fraudulently or with intent that fraud may
_ , be committed, is in possession of counter-

feit coin by person who felt com, having known at the time when he
knew it to be counter- became possessed thereof that such coin

jMssessedlhereof. ccamc was counterfeit, shall be punished with

imprisonment of either description for a
term which may extend to three years, and shall also be liable to
fine.

Fraudulently — a. 25. Possession — s> 235 & s. 27. Counterfeit — s. 28.

Mayne in his commentary says : — “ The mere possession of counterfeit coin
is an offence under Ss. 242 and 243, even though no attempt is made to pass it off,
provided it can be. shown that it was kept for a fraudulent purpose, and was ori-

S ’nally obtained with a guilty knowledge. The mere fact of a single base coin being
und in a party’s possession would not, without further evidence, be sufficient to
create a presumption that he knew it to be counterfeit when he obtained it, and

(p) Soorut, (1872) 4 N. W. P. H. C R. 62,

(q) Ibid i

436

THE INDIAN PENAL CODE

[CHAP. XII

intended to make a fraudulent use of it. But where a considerable number of base
coins is found in any man’s possession, the presumption of guilt would be sufficient
to make a conviction lawful, unless the possession could in some manner be explained
or accounted for” (r).

Procedure:— Cognizable— Warrant— Not bailable-yNot compoundable—
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

If pieces of counterfeit coins are found upon one of two persons acting in guilty
concert, and both knowing of the possession, both will be guilty under this
section (s).

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at *

fraudulently (or with intent that fraud might be committed) were in possession of—
pieces of counterfeit coin, namely ( describe the counterfeit coin) (or King’s coin)
having known at the time when you became possessed of the same that they were
counterfeit, and thereby committed an offence punishable under s. 242 or (s. 243
if the offence relates to King's coin) of the Indian Penal Code and within my cog-
nizance (or the cognizance of the Court of Session).

And I hereby direct that you be tried on the said charge.

243. Whoever, fraudulently or with intent that fraud may
„ be committed, is in possession of counter-

coin OSS by °person UC who feit coin, which is a counterfeit of the Queen s
knew it to be counter- co in, having known at the time when he

possesled thereof beCame became possessed of it that it was counter-
feit, shall be punished with imprisonment
of either description for a term which may extend to seven years,
and shall also be liable to fine.

Fraudulently — s. 25. Possession — s. 235 and s. 27.

Queen's Coin — s- 230.

This section is the same as the previous section with this difference that it
prescribes a heavier punishment. as the offence relates to possession of counterfeit
King’s coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge see form set out under s. 242.

* having known at the time when he became possessed of it 9 The

Calcutta High Court in a Full Bench decision has held by a majority that to constitute
an offence under this section it is essential to prove the very moment when the
accused became possessed of the coins he knew them to be counterfeit, whether he
was in possession of the coins himself, or his wife, clerk or servant was in possession
of the coins on his own account. The direction to the Jury by the trial Judge
‘that the essential question was whether the accused was fraudulently, or with
fraudulent intention, in possession, having known at the time he became aware of
possession that the coin was counterfeit,* was held by the majority to be a mis*
direction (a). There the prosecution case was that the police, owing to information
received, searched the shop of one Sonairam and found there 31 counterfeit rupees

(r) Mayne * Criminal Law of India 1 3rd Edition, pp. 811-812.

(s) William Rogers , (1839) 2 Moody. C. C. 85.

(t) Fateh Chand ( Agarwalla , (1916) 44 C. 477 : 21 C. W. N. 33 : 28 C. L. J. 40Q.

SECS. 244-46 ] OFFENCfeS RELATING TO COIN

437

and in consequence of information received from Sonairam proceeded to search
the shop of the accused, and there found in his iron-safe besides currency notes of
Rs. 1555, Rs. 497 in a bag of which Rs. 160 were counterfeit rupees of the identical
type and in a wooden box inside the safe Rs. 40, of which Rs. 3 were counterfeit
and that at the request of the police-officer the accused produced the key and opened
the safe. The defence case was that one G who was the cashier of the accused used
to receive moneys in the ordinary course of business and that when the police
came to the shop the accused asked G for the key of the safe which ordinarily
remained with the cashier G and G must have received the counterfeit coins
without knowing them to be counterfeit and books were produced by the defence
to show that on that date the sum of Rs. 222 was received from Sonairam
for goods supplied. The majority of the Judges held that there was
misdirection in the charge to the Jury and set aside the conviction and sentence of
the accused (u).

244 * Whoever, being employed in any mint lawfully
established in British India, does any act,
mint" causing 1 cointo be or omits what he is legally bound to do,
of different weight or with the intention of causing any coin issued
Sbytw. fr ° m that from that mint to be of a different weight or

composition from the weight or composition
fixed by law, shall be punished with imprisonment of either des-
cription for a term which may extend to seven years, and shall
also be liable to fine.

This section punishes persons employed in mint causing coin to be of different
weight or composition from that fixed by law. The object of the section is to
preserve the purity of the coinage and to ensure the coinage of its exact requirements.
This section punishes only intentional acts and omissions, the intention being to
vary the weight or composition of the coin. (See the Indian Coinage Act, III of
1906).

Procedure: — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of — , at ,

being employed as in the mint lawfully established in

British India, did an act, to wit (specify the act), (or omitted) what you were legally

bound to do (specify the omission) with the intention of causing the coin

issued from the said mint to be of a different weight (or composition) from the
weight (or composition) fixed by law and thereby committed an offence punishable
under s. 244 of the Indian Penal Code, and within the cognizance of the Court of
Session (or the High Court.)

Punishment : — S. 75 provides for enhanced punishment on a second con-
viction.

245 . Whoever, without lawful authority, takes out of any
Unlawfully taking mint, lawfully established in British Iudia,
coining instrument from any coining tool or instrument, shall be
mmt ‘ punished with imprisonment of either des-

\u) Fateh Chand Agarwala, (1916) 44 C. 477 : 21 C. W. N. 33 : 28 C. L. J. 400.

438 THE INDIAN PENAL CODE [CHAP. XII

cription for a term which may extend to seven years, and shall
also be liable to fine.

British India— s. 15.

The offence consists in the unauthorised taking out of the mint coining tools or
instruments by any person, the object being to prevent theft of coining instruments
from the mint for the purpose of using them for making counterfeit coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable
and is triable exclusively by Court of Session.

Burden of Proof : — It has been held in England that although it is necessary
to state in certain charges under the Coinage Offences Act, 1861, that the acts were
committed ‘ without lawful authority or excuse/ the burden is on the prisoner
to prove the lawful authority or excuse (v).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows

That you, on or about the day of , at

without lawful authority took out of the mint lawfully established in British India

exhibit which was a coining tool (or instrument) to

wit , and you thereby committed an offence punishable under s. 245

of the Indian Penal Code, and within the cognizance of the Court of Session (or
the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Punishment : — S. 75 provides for an enhanced punishment on a second
conviction under this section.

246. Whoever fraudulently or dishonestly performs on

Fraudulently or dis- an y co * n an Y operation which diminishes
honestly diminishing the weight or alters the composition of that
weight or altering com- co j n> s }, a ll b e punished with imprisonment
position o com. 0 f e j t h er description for a term which may

extend to three years, and shall also be liable to fine.

Explanation. — A person who scoops out part of the coin
and puts anything else into the cavity alters the composition of
that coin.

Fraudulently — s. 25. Dishonestly — s. 24.

This section punishes the fraudulent and dishonest diminution of the weight
or composition of a coin.

Procedure : — Cognizable — Warrant — Not bailable --Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge I (name and office of Magistrate etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the -day of — • at ,

fraudulently (or dishonestly) performed on the coin, exhibit—^ to wit— -%

(or on the King’s coin ) an operation which diminished its weight (or

altered its composition), and you thereby committed an offence punishable under
s. 246 (or s. 247, if the coin is King's coin ) of the Indian Penal Code, and within my
c ognizan ce (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

(v) Harvey, (1871) L. JR. 1. C. C. R. 284.

439

SECS. 247-49 ] OFFENCES RELATING TO COIN

Punishment ; — S. 75, supra, provides for enhanced punishment on a second
conviction.

247 . Whoever fraudulently or > dishonestly performs on
Fraudulently or dis- any of the Queen’s coin any operation which
honestly diminishing diminishes the Weight or alters the corn-
position of Queen’s position ot that coin, shall be punished
coin with imprisonment of either description for

a term which may extend to seven years, and shall also be liable
to fine.

This section is the same as the previous section with this difference that the
coin here is King’s coin and as such heavier punishment has been prescribed.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundablc —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — See form set out under s. 246.

Punishment : — S. 75 provides for an enhanced punishment on a second con-
viction under this section.

248 . Whoever performs on any coin any operation which
alters the appearance of that coin, with the
intention that the said coin shall pass as a
coin of a different description, shall be
punished with imprisonment of either
description for a term which may extend to three years, and shall
also be liable to fine.

Altering appearance
of coin with intent that
it shall pass as coin of
different description.

This section punishes alteration of the appearance of a coin with the intention
that it should pass as a coin of a different description. It does not require alteration
of weight or composition which comes under s. 246 or s. 247. The quick-silvering
of a pice so as to give it the appearance of an eight-anna piece is an instance of an
alteration within the meaning of this section.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

In the case of previous conviction the accused should be committed to take
his trial before the Court of Session (w).

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the; day of , at ,

performed an operation on the coin (or King's coin) known as with

the intention that the said coin shall pass as a coin of a different description, to

wit - ■ and that you thereby committed an offence punishable under

s. 248 (or s. 249, in case the coin is King's coin) of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

249 * Whoever performs on any of the Queen’s coin any
Altering appearance operation which alters the appearance of that
ten? that ft shairpass'as coin with the intentionthat the said coin
coift of different des- shall pass as a coin or a different description,
wiptiqp* shall be punished with imprisonment of

(w) S. 348, Criminal Procedure Code.

titfE Indian penal code

440

[chap. Xll

either description for a term which may extend to seven years,
and shall also be liable to fine.

This section is the same as the previous section with this difference only
that it prescribes a heavier penalty as the coin affected is the King’s coin.

# Procedure Cognizable — Warrant— Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — See form set out under s. 248.

Punishment S. 75 provides for an enhanced punishment on a second
conviction.

250 . Whoever, having coin in his possession with respect
Delivery of coin.pos- to which the offence defined in section 246

sessed with knowledge or 248 has been committed, and having
that it is altered. known at the time when he became possessed

of such coin that such offence had been committed witn respect
to it, fraudulently or with intent that fraud may be committed,
delivers such coin to any other person, or attempts to induce
any other person to receive the same, shall be punished with
imprisonment of either description for a term which may extend
to five years, and shall also be liable to fine.

This section and the next deal with professional dealers in coin counterfeited
in the manner described in Ss. 246 and 248 as Ss. 239 and 240 punish professional
dealers in spurious coins. The next section provides for enhanced punishment
as the coin affected is the King's coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class,

Cliarge : — I (name and office of Magistrate , etc.) hereby charge you (name
of ac cased) as follows : —

That you, on or about the day of , at , had

in your possession a coin exhibit (or King’s coin) namely ,

and in respect of which the offence defined in s. 246 (or s. 248) had been committed),
and knowing at the time when you became possessed of such coin (or King’s coin)
that such offence had been committed with respect to it, you fraudulently (or with
intent that fraud may be committed) delivered such coin to XY (or attempted to
induce the said XY to receive the same), and thereby committed an offence puni-
shable under s. 250 (or s. 251) of the Indian Penal Code, and within my cognizance
(or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court)4>i| the said charge.

251 . Whoever, having coin in his possession with respect

, n „ , c to which the offence defined in section 247

coin possessed^ with or 249 has been committed, and having

]Stered dgc that i4 is ^ cnown at the time when he became pos-

4 ere ' sessed of such coin that such offence had

been committed with respect to it, fraudulently or with intent
that fraud may be committed, delivers such coin to any other
person, or attempts to induce any other person to receive theaftme,
shall be punished with imprisonment of either description for a

OFFENCES RELATING TO COIN

441

sec. 252 ]

term which may extend to ten years, and shall also be liable to
fine.

Coin — s. 230. Fraudulently — s. 25.

This section is the same as the previous section with this difference only that
it prescribes a heavier punishment since the coin possessed is the King’s coin.

Offence when made out If a person clips and cuts away coin and makes
up the deficient weight by solder with the intention of subsequently delivering it
to a Bank, held, he is guilty of fraudulently defacing a coin even though on a pre-
vious occasion the coin had been used as a wearing ornament (x).

Procedure : — Cognizable — Warrant — Not bailable — -Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

In the case of previous conviction the Magistrate may commit the accused to
take his trial before the Court of Session (y).

Charge : — See form set out under s. 250.

Punishment : — S. 75 provides for an enhanced punishment on a second
conviction.

* and shall also be liable to fine ’—means that the sentence of fine is
optional and if passed the accused shall have to pay it (z).

252. Whoever, fraudulently or with intent that fraud may
be committed, is in possession of coin with
respect to which the offence defined in
either of the sections 246 or 248 has been
committed, having known at the time
of becoming possessed thereof that such offence had been com-
mitted with respect to such coin, shall be punished with im-
prisonment of either description for a term which may extend to
three years, and shall also be liable to fine.

Possession of coin by
person who knew it to
be altered when lie be-
came possessed thereof.

Analogous law This and the next section are analogous to Ss. 242 and 243.
Under Ss. 250 and 251 the offence is one for uttering while under this section and
the next, the offender is punished for possession of coin by the offender with the
knowledge that it is altered with respect to which the offence defined in either
s. 246 or s. 248 or in the aggravated form (as in the next section) the offence defined
in either s. 247 or s. 249 had been committed.

Procedure Cognizable— Warrant — Not bailable — -Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — L(name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows

That you, on or about the - — day of — , at #

fraudulently (or with intent that fraud might be committed) were in possession of

coin (or King’s coin), exhibit , namely , with respect to which

the offence ^defined in either of Ss. 246 or 248 (or in the case of King's coin ,
8. 247 -or s. 249) had been committed, the weight of the said coin (or King's coin)
had been diminished (or the composition of the said coin had been altered or the
appearance of the said coin had been altered with the intention that the said coin

■* (x) ‘Mihatab Rai t (1925) 48 A. 603 : 24 A. L. J. 842 : 27 Cr. L. J. 426.

. (y) S<*348, Criminal Procedure Code.

(z) Joseph , (1888) 1 Weir 223.

442 fftfc INDIAN PENAL CODE. [ CHAP. Xll

should pass as a coin of a different description) having known at the time you became
possessed thereof that such offence had been committed with respect to the said
coin, and that you thereby committed an offence punishable under s. 252 (or
8. 253 if the coin possessed is King's coin) of the Indian Penal Code and within my
cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried on the said charge.

253. Whoever, fraudulently or with intent that fraud may

be committed, is in possession of coin with
coin° s by S, °per 5 on Ue who respect to which the offence defined in either
knew it to be altered of the section 247 or 249 has been com-
;'Se^ cameposscss * nutted, having known at the time of be-
coming possessed thereof that such offence
had been committed with respect to such coin, shall be punished
with imprisonment of either description for a term which may
|Xtend to five years, and shall also be liable to fine.

The offence described in this section is the same as in the preceding
section. This section provides for a higher punishment owing to this that the
coin affected is the King’s coin.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Sesson, Presidency Magistrate or Magistrate of the first class.

Charge : — See form set out under s. 252.

254. Whoever delivers to any other person as genuine
f c in as or as , a , co * n °f a different description from

genuine” which “whon what it is, or attempts to induce any person
first possessed, the deli- to receive as genuine, or as a different coin
faltered. n t know t0 ^ rom what it is, any coin in respect of which
he knows that any such operation as that
mentioned in sections 246, 247, 248, or 249 has been performed,
but in respect of which he did not, at the time when he took it
into his possession, know that such operation had been performed,
shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine to an amount
which may extend to ten times the value of the coin for which
the altered coin is passed, or attempted to be passed.

Analogous law : — This section is analogous to s. 241 , supra.

Procedure s— Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge: — I (name and office of Magistrate, etc.) do hereby charge you
(name of accused) as follows : — ,

That you, on or about the day of , at-?- — ,

delivered to XY (or attempted to induce XY to receive) as genuine a coin, to

wit , in respect of which an operation as that mentioned in s. 246

(or s. 247 or 248 or 249) of the Indian Penal Code, to wit — , had

been performed, and you thereby committed an offence punishable under s. 254
of the Indian Penal Code and within my cognizance. > 4

And 1 hereby direct that you be tried on the said charge.

SECS. 255-56 ]

OFFENCES RELATING TO COIN

443

Punishment ; — S. 75 has no application to this section as the maximum sen-
tence is 2 years only.

255. Whoever counterfeits, or knowingly performs any
Counterfeiting Govern- part of the process of counterfeiting, any

mcnt stamp. stamp issued by Government for the purpose

of revenue, shall be punished with transportation for life or with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.

Explanation . — A person commits this offence who counter-
feits by causing a genuine stamp of one denomination to appear
like a genuine stamp of a different denomination.

Counterfeit — s. 28. Government — Ss. 17 and 263-A (4).

The rest of this Chapter deals with offences relating to Government stamps.
This section is analogous to the provision of s. 231 which relates to the same offence
as is applicable to coins.

Procedure : —Cognizable** -Warrant —Bailable— Not compoundable — Triable
by Court of Session.

Charge s — I ( name and office of Magistrate , etc.) do hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at — ,

counterfeited (or knowingly performed a part of the process of counterfeiting, to

wit ), a certain stamp issued by Government for the purpose

of revenue, to wit , and thereby committed an offence punishable

under s. 255 of the Indian Penal Code, and within the cognizance of the Court of
Session (or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Counterfeiting Government Stamp Postage stamps shall be deemed to
be stamps issued by Government for the purpose of revenue within the meaning of
the Indian Penal Code (a).

The word ‘ stamp * must be construed according to its ordinary meaning in
the English language, and it cannot seriously be contended that an obliterated stamp
cannot be a stamp in the ordinary use of the English language. A forged stamp
before it was cancelled was held to be a stamp within the meaning of the
Stamp Duties Management Act, 1891 (b).

The passing off of a one-anna stamp as a one-rupee stamp is not counterfeiting
a one-rupee stamp (c).

256. Whoever has in his possession any instrument or

Having possession Of for the purpose of being used or

instrument or material knowing or having reason to believe that
for counterfeiting j t ; s intended to be used? for the purpose
ot counterfeiting any stamp issued by
Government for the purpose of revenue, shall be punished with

a) S. 17 of the Indian Post Office Act (VI of 1898).

'b) Lowden, (1914) 1 K. 6. 144.

(c) Sharoop Chandra Das, (1865) 2 W. R. (Cr.) 65 (66).

444 THE INDIAN PENAL CODE [ CHAP. Xlt

imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.

Possession — s. 27 and s. 235.

The offence is the same as dealt with under s. 235 with this difference only
that this section affects Government Stamp whereas s. 235 relates to coin.

Procedure Cognizable — Warrant— Bailable— Not compoundable— Triable

by Court of Session.

Charge : — I ( name and office of Magistrate, etc.) do hereby charge you
( name of accused) as follows

That you, on or about the day of — , at 1

were in possession of a certain instrument (or material) to wit ,

for the purpose of being used (or knowing or having reason to beleive that the said
instrument or material was intended to be used) for the purpose of counterfeiting

the stamp issued by Government for the purpose of revenue, and

thereby comitted an offence punishable under s. 256 of the Indian Penal Code and
within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Possession of counterfeiting instrument or material In a case
under s. 7 (c) of the Post Office Protection Act, in England, it has been held that
it was an offence for a person to be in possession of a die for making a false stamp
known to be such to its possessor, however innocent the use that he intended to
make of it (d).

The proprietor of a newspaper circulating among stamp-collectors and others
caused a die to be made for him abroad, from which imitations or representations
of a current colonial postage stamp could be produced. The only purpose for
which the die was ordered by him, and was subsequently kept in his possession,
was for making upon the pages of an illustrated stamp catalogue or newspaper, called
* The Philatelist's Supplement , * illustrations in black and white, and not in colours
of the colonial stamp in question, this special supplement being intended for sale
as part of his newspaper. It was held that the possession of a die for making a false
stamp, known to be such to its possessor, was, however innocent the use that he
intended to make of it, a possession without lawful excuse within the meaning of the
Post Office (Protection) Act, 1884 (e).

257. Whoever makes or performs any part of the process

Making or selling in- ° f H™*’ ° r hu P’ ° r L Sells ’ 0r ^pOSeS of,
strument for counter- any instrument tor the purpose ot being

stamp 5 Govcr " rncnt used, or knowing or having reason to believe
that it is intended to be used, for the purpose
of counterfeiting any stamp issued by Government for the purpose
of revenue, shall be punished with imprisonment of either des-
cription for a term which may extend to seven years, and shall also
be liable to fine*

Reason to believe — s. 26. Stamp — s. 255.

Government—#. 17 & s. 263-A (4).

fd) Dickins v. Gill, (1896) 2 Q. B. 310 (312).

(e) Ibid at P. 318. *

OFFENCES RELATING TO COIN

445

SECS. 258*59 ]

This section is analogous to s. 234.

Procedure s— Cognizable— Warrant— Bailable-— Not compoundable—' Triable
by Court of Session.

Charge : — I (name and office of Magistrate, etc.) do hereby charge you (name
of accused) as follows : —

That you, on or about the day of- , at

mad e (or performed any part of the process of making or bought or sold or disposed

of) any instrument, to wit — — , for the purpose of being used (or knowing

or having reason to believe that it is intended to be used) for the purpose of counter-
feiting any stamp issued by Government for the purpose of revenue, and thereby
committed an offence under s. 257 of the Indian Penal Code, and within the cog-
nizance of the Court of Session (or the High Court).

And 1 hereby direct that you be tned (by the said Court) on the said charge.

258. Whoever sells, or offers for sale, any stamp which
he knows or has reason to believe to be a
Gov^mmci s?a U mp rt0it counterfeit of any stamp issued by Govern-
ment tor the purpose ot revenue, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

This section punishes the seller of counterfeit Government stamps. This
section is in many respects similar to the provisions of s. 239.

Procedure : — Cognizable— Warrant — Bailable — Not compoundable — Triable
by Court of Session.

Charge : — I (name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the -day of -, at — -,

sold (or offered for sale) a stamp, to wit . which you knew (or had

reason to believe) to be a counterfeit of the stamp -, issued by

Government for purpose of revenue and thereby committed an offence punishable
under s. 258 of the Indian Penal Code, and within the cognizance of the Court of
Session (or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

259. Whoever has in his possession any stamp which he
Having possession of knows to be a counterfeit of any stamp
counterfeit Government issued by Government for the purpose of
revenue, intending to use, or dispose of the
same as a genuine stamp, or in order that it may be used as a
genuine stamp, shall be punished with imprisonment of either
description for a term wnich may extend to seven years, and
shall also be liable to fine.

Possession — s. 235 & s. 27. Stamp— s. 255.

Counterfeit — s. 28. Government — s. 1 7. & s. 263-A (4).

This section is analogous to s. 243 with the difference that it relates to counter-
feit stamps.

Procedure ji — Cognizable — Warrant — Bailable — Not compoundable— Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

446 THE INDIAN PENAL CODE [ CHAP. XII

Charge I ( name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

were in possession of a stamp, to wit , which you knew to be a coun-
terfeit of a stamp, to wit ; , issued by Government for the purpose

of revenue, intending to use (or dispose of) the same as a genuine stamp and thereby
committed an offence punishable under s. 259 of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session, or the High Court).

And I hereby direct that you be tried by the said Court (in cases tried by the
Magistrate, omit these words) on the said charge.

260. Whoever uses as genuine any stamp, knowing it to be
Using as genuine a a counterfeit of any stamp issued by

Government stamp Government for the purpose of revenue, shall
known to be counter- |> e p Un J s h ec [ with imprisonment of either

ei description for a term which may extend

to seven years, or with fine, or with both.

This section is analogous to s. 254 with this difference that it relates to coun~
terfeit stamps.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — T riable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge 1 ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

used as genuine stamp, to wit— , knowing it to be counterfeit of a

stamp issued by Government for the purpose of revenue, to wit ,

and thereby committed an offence punishable under section 260 of the Indian
Penal Code, and within my cognizance (or the cognizance of the Court of Session,
or the High Court).

And I hereby direct that you be tried by the said Court (in cases tried by the
Magistrate, omit these words) on the said charge.

261. Whoever, fradulently or with intent to cause loss to

Effacing writing from the Government, removes or effaces from
substance bearing Gov- any substance, bearing any stamp issued by

m^ngUomTocument Government for the purpose of revenue, any
a stamp used for it , writing or document tor which such stamp
£fto Gov«nme„t anst ‘ has been used, or removes from any writing
or document a stamp which has been used
for sucb writing or document, in order tnat sucb stamp may be
used for a different writing or document, shall be punished with
imprisonment of either description for a term which may extend
to three years, or with fine, or with both.

Fraudulently — s. 25. Government — Ss. 17, 263-A (4).

This section is analogous to the provisions of Ss. 246 and 248, supra.

Procedure Cognizable — Warrant— BailableyNot compoundable— Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class,

447

SECS. 262-63 ] OFFENCES RELATING TO COIN

*

Char ge f—I ( name and officio} Magistrate, etc.) hereby charge you (name
of accused) as follows : — ,

That you, on or about the day of , at ,

fraudulently (or with intent to cause loss to the Government) removed (or effaced)
from any substance bearing any stamp issued by Government for the purpose of
revenue, any writing (or document) for which such stamp had been used or removed
from any writing (or document) a stamp which had been used for such writing (or
document) in order that such stamp may be used for a different writing (or
document) and thereby committed an offence punishable under s. 261 of the
Indian Penal Code, and within my cognizance (or the cognizance of the Court of
Session).

And I hereby direct that you be tried by the said Court (in cases tried by the
Magistrate, omit these words) on the said charge.

262. Whoever, fraudulently or with intent to cause loss to

Using Government the Government, uses for any purpose a
stamp known to have stamp issued by Government tor the purpose
been before used. 0 f reV enue, which he knows to have been

before used, shall be punished with imprisonment of either des-
cription for a term which may extend to two years, or with fine,
or with both.

F raudulently— s . 25 .

While the preceding section deals with the fraudulent removal and effacement
of writing from a substance bearing Government stamp, this section deals with
the fraudulent use of old used stamps.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge t— I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

fraudulently, or with intent to cause loss to Government, used a stamp issued by

Government for the purpose of revenue, to wit ,( describe stamp ) which

you knew to have been before used, and thereby committed an offence punishable
under s. 262 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Using old used-stamp : — The intention to defraud or cause loss to Govern-
ment must be proved. It cannot be assumed. Whether it is fraud or loss tp
Government, it must either be clearly proved or reasonably inferred from the act (f).

263. Whoever, fraudulently or with intent to cause loss
Erasure of markde- t° Government, erases or removes from a
noting that stamp has stamp issued by Government for the purpose
or revenue, any mark, put or impressed
upon such stamp for the purpose of denoting that the same has
been used, or knowingly has in his possession, or sells or disposes
of any such stamp from which such mark has been erased or
removed, or sells or disposes of any such stamp which he knows

(f) Niat Alt, (1881) A W. N. 56; Muraiidtiar, (1880) Rat. Unrep. Cr. C. 146-

448 THE INDIAN PENAL* CODE [CHAP. XII

to Have been used, shall be punished with imprisonment of either

description for a term which may extend to three years, or with
line, or with both.

Fraudulenty.— s. 25.

The section punishes offences of three kinds, viz., (a) erasure or removal of
si mark denoting that a stamp has been used, (b) knowingly possessing such
stamp, or (cX selling or disposing of any such stamp.

Procedure {—Cognizable — Warrant— 'Bailable— Not compoundable— Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

fraudulently (or with intent to cause loss to Government) erased (or removed) from

a stamp issued by Government for the purpose of revenue, to wit ,

(describe the stamp) a mark put (or impressed) upon the same for the purpose of
denoting that the said stamp had been used [(or knowingly had in your possession
or sold or disposed of a stamp issued by Government for the purpose of revenue,
namely (describe stamp) from which a mark, put or impressed upon the same for the
purpose of denoting that the said stamp had been used, had been erased (or re-
moved)] [(or sold or disposed of a stamp issued by Government for the purpose
of revenue, namely (describe stamp) knowing that the said stamp had been used)] ;
and that you thereby committed an offence punishable under s. 263 of the Indian
Penal Code, and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried by the said Court (in cases tried by the
Magistrate , omit these words) on the said charge.

263* A* (1) Whoever —

Prohibition of ficti-
tious stamps.

(a) makes, knowingly utters, deals in or sells any fictitious
stamp, or knowingly uses for any postal purpose
any fictitious stamp, or

(A) has in his possession, without lawful excuse, any fic-
titious stamp, or

(c) makes or, without lawful excuse, has in his possession
any die, plate, instrument or materials for making
any fictitious stamp,

shall be punished with fine which may extend to two hun-
dred rupees.

(2) Any such stamp, die, plate, instrument or materials in
the possession of any person for making any fictitious stamp
may be seized and shall be forfeited.

(3) In this section “ fictitious stamp ” means any stamp
falsely purporting to be issued by Government for the purpose of
denoting a rate of postage or any facsimile or imitation or repre-
sentation, whether on paper or otherwise, of any stamp issued by
Government for,, that purpose,

SEC. 264 ] OFFENCES RELAtlNG*TO WEIGHTS & MEASURES 449

(4) In this section and qIso in sections 255 to 263, both
inclusive, the word “ Government M when used in connection
with, or in reference to, any stamp issued for the purpose of denot-
ing a rate of postage, shall, notwithstanding anything in section
17, be deemed to include the person or persons authorized by law
to administer executive government in any part of India, and also
in any part of Her Majesty’s dominions or in any foreign country.

Legislative changes : — This section was added by the Indian Criminal Law
Amendment Act, 1895 (III of 1895), s. 2.

This section is identical with s. 7 of the English Post Office (Protection) Act,
1884, (47 and 48 Viet., c. 76, s. 7). It was added by the Criminal Law Amendment
Act as a result of the International Postal Congress at Vienna on 20th May 1891.
Its object is to prohibit the growing traffic in fictitious stamps , the use of which causes
loss in revenue to the Post Office (g).

Procedure : — Cognizable— Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first class.

CHAPTER XIII.

Of Offences Relating to Weights and Measures.

“ The offences punishable by this Chapter are not defined with reference to
any precise standard of weight or measure established by law. A false weight or

measure here signifies that,. taking the law or the ordinary usage of

the place, or the common understanding of the parties, to have fixed on a certain
known instrument of weight or measure, with reference to which two persons deal
together, the false dealer by deceit substitutes another weight or measure in order
to defraud.

“ The intention to defraud, or that the false weight or measure shall be used
by other persons in order to defraud, is an essential part of the offence. The balance
or scales, weights, etc., used may be and are probably often of the rudest construc-
tion. Where their defects are visible to a purchaser, and there is no attempt to
conceal them, there can be no reason for imputing an intention to defraud. On the
other hand, the use of a false balance artfully contrived to elude detection, carried
with it a strong presumption that it is used in order to defraud" (h).

In England the weights and measures are regulated by a statute of that name (a).

264. Whoever fraudulently uses any instrument for weigh-
Fraudulent use of ing which he knows to be false, shall be
wei e hin nstTUinent for P un * s hed with imprisonment of either des-
C!g ns cription for a term which may extend to

one year, or with fine, or with both.

Fraudulently — s. 25.

(g) Vide Report of the Select Committee on the Amending Bill of 1895, dated
1st January 1895; Gazette of India, Part IV, dated 2nd February, 1895, pp. 19, 20.

(?) JJ°rgan and Macpherson, “ Penal Code 11 p. 201.
oi l) /ia^ elghtrand Measure s Act, 1878 (14 and £2 Viet. c. 49); 5? and 53 Viet.

C. 21 (loov). '*•'

35

450 THE INDIAN PENAL CODE [ CHAP. XIII

This section makes it an offence to use false instrument for weighing
fraudulently.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class
— Triable summarily.

Charge I {name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at-

fraudulently used a certain instrument for weighing, to wit*

knowing it to be false at the time of using it, and thereby committed an offence

punishable under s. 264 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

* fraudulently uses any instrument for weighing 9 Intention is an
essential part of the offence of fraudulently using false instruments for weighing
and in the absence of any evidence of such intention, the Calcutta High Court
quashed the conviction (j). The Allahabad High Court has held that a oneAolah
below weight in a five seers docs not establish intention to defraud (k).

Where the respondent was charged under s. 25 of the Weights and Measures
Act, 1878 (41 and 42 Viet., c. 49) with having in his possession for use for trade a
weighing machine which was false or unjust and the machine which was used for
weighing tea, had on it, under the scoop in which the tea was placed, a piece of
paper, the effect of which was to make the machine indicate a weight exceeding by
the weight of the paper, the weight of the tea in the scoop, it was held that the
machine was ‘ false and unjust ' and the respondent ought to be convicted (I).
Where the appellants, (a railway company) kept a weighing machjne, which for a
fortnight had been so out of repair that when anything was weighed by it, the
weight appeared to be four pounds more than was really the weight, it was held
that the appellants were liable to be convicted under 5 and 6 Will, 4, c. 63, s. 28 for
having in their possession a weighing machine which on examination was found
to be incorrect (m).

As to inspection of weights and measures by police:— (I ) Any officer
in charge of a police station may, without a warrant, enter any place within the
limits of such station for the purpose of inspectingor searching for any weights or
measures, or instruments for weighing used or kept therein, whenever he has
reason to believe that there are in such place any weights, measures, or instruments
for weighing which are false.

(2) If he finds in such place any weights, measures or instruments for weighing
which are false, he may seize the same, and shall forthwith give information of such
seizure to a Magistrate having jurisdiction (n).

265. Whoever fraudulently uses any false weight or false

Fraudulent use of measure length or capacity, or fraudulently
false weight or measure, uses any weight or any measure of .length
or capacity as a different weight or measure
from what it is, shall be punished with imprisonment of either

(i) Kangalle Muduh, (1872) 18 W. R. (Cr.) 7.

(k) Bhika Mai. (1883) A. W. N. 224. ir

(l) Lane v. Ramdall, (1899) 2 Q. B. 07».

(m) The Great Western* Ry. Co. V. Bailie, (1804) U4 L. J. M. C, 31.

(n) S. 153, Criminal Procedure Cpde.

SEC. 266 ] OFFENCES RELATING TO WEIGHTS & MEASURES 451

description for a term which may extend to one year, or with fine,
or with both.

Fraudulently — s. 25.

While the preceding section deals with false weighing machine this section
deals with the use of a wise weight or measure.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class and
Triable summarily.

Charge —same as s. 264.

Fraudulent use of false weights and measures To ascertain whether
a measure is false or not, the only proper test to applv is that of measure, and the
same article must be measured in each case, and proof should be adduced that this
had been done. The weight of the grain that a measure is found to hold is no
evidence of its capacity, as compared with that of another measure, unless the very
same grain is used (o). No one purporting to weigh out a seer can use a weight
less than 80 tolas. In weights used for weighing ordinary commodities a small
deficiency could scarcely count. For instance, a difference of a tola in a five seer
weight might be left out of consideration on the ground of wear and tear (p).
Where the accused who sold liquor, measured it with a glass which was not of a
prescribed measure, and of which they fraudulently misrepresented the capacity,
and were convicted of the offence of fraudulent use of a false measure under this
section, it was held that they would more appropriately have been tried for the
offence of cheating (q).

A person, who professes to sell by a certain standard of weight, is bound to take
reasonable care that the weights he uses are not defective (r). A person, who
represents himself as using a measure of a particular standard, is bound to see that
the measure is correct according to that standard, and if the measure varies from
the standard so as to give the seller a considerable advantage, the Courts are Justi-
fied in inferring fraud (s).

266 . Whoever is in possession of any instrument for
,, . . . , weighing, or of any weight, or of any measure

false weight or measure, or length or capacity, which he knows to be
false, and intended that the same may be
fraudulently used, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine,
or with both.

This section deals with possession of false weight or measure and it may be
compared with the provisions of Ss. 235, 239, 240, which punish a person for being
in possession of counterfeit coin, and s. 259 relating to counterfeit stamp.

Morgan and Macpherson observe : — “ Using false weights and measures,
however, for the purposes of these sections means that where, according to the
ordinary use of a place, or the common understanding of parties, a certain weight
or measure is fixed, the false dealer substitutes another in order to defraud ” (t).

(o) Lakshtnan Martrami, (1898) Rat. Unrep. Cr. C. 989.

(p) Bhikka Mai, (1883) A. W. N. 224.

(q) Nurodin, (1888) Rat. Unrep. Cr. C. 386.

(r) Appasami V. Munisatni, (1884) 1 Weir 225.

(s) Venkata Chetti, (1883) 1 Weir 22fi.

(t) Morgart and Macpherson, ' penal Code, ' p. 201.

452

THE INDIAN PENAL CODE

[CHAP. XIII

Procedure :~Non-cognizable— Summons— Bailable — Not compoundable —
Triable by Presidency Magistrate, or Magistrate of the first or second class —
Triable summarily.

Charge I ( name and office of Magistrate , etc.) hereby charge you {name
of accused) as follows : —

That you, on or about the day of at — ,

were in possession of any instrument for weighing (or of a certain weight, or of a

certain measure of length or capacity) to wit — - , which you knew at the

time of your possession to be false intending that the same might be fraudulently
used and thereby committed an offence punishable under s. 266 of the Indian
Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Being in possession of false weight or measure s— The Bombay High
Court has held that the mere possession of weights in excess of the authorised
standard will not support a conviction, but if it is accompanied by fraudulent
intent, the person in possession is punishable under this section (u).

Where there was no evidence of intention on the part of the accused to use false
weights fraudulently, the conviction was set aside by the Calcutta High Court and
Kemp, J., remarked that the mofussil scales are generally so rudely constructed
that a stone is commonly used in one scale to create a balance (v).

This section does not contemplate that commodities like coal or cotton should
be weighed with exact precision. A difference of one tola in five seers represents
a fair wear and tear and is no evidence of fraud (w).

It has been held by the Madras High Court that it is the duty of a person who
sells by a certain standard of measure or weight to take reasonable care that the
weights he uses are not incorrect (x).

Where it was found upon evidence that in the village where the accused carried
on the business of a cloth-seller, the standard of measurement was 35£ inches, held ,
a conviction under this section for being in possession of such a measure of length
was wrong (y).

A seller is bound to see that the standard of measurement is correct and if the
measure varies from the standard so as to give him a considerable advantage, the
Court is justified in inferring fraud (z).

In an English case, where the defendant was in the habit of selling milk which
he used to send to the customer by train in his own churns and the chums were
fitted with gauzes to indicate the number of gallons they contained and the pur-
chaser was entitled to know how much the pints contained, and on such examina-
tion being made, two of the churns were found to contain two pints less than the
requisite gallons, it was held that the accused was rightly convicted under s. 25
of the Weights and Measures Act, 1878 (41 and 42 Viet., c. 49, s. 25) (a). In a
subsequent English case, it has been held that a person (post-master) who was also
a baker and had in his possession a false scale belonging to the Post Office and had
been selling bread by weighing the same in the postal scale could be proceeded
against under the English Statute (Weights and Measures Act, 1878) as the scales

(u) Uamoder Dalji, (1864) 1 B. H. C. R isTT

(v) Kangali Muduk, (1872) 18 W. J< (Cr ) 7

(w) Hhika Mai. (1883) A. W. N. 224.

(x) Appasami Munisami, (1884) 1 Weir 225.

(y) Hat ah Chand Marwari, (11118) 40 A. 84 : Jf> A. L. J 807- 19 Cr I I 145 •

43 1. C. 433. J T 1 C r J - ,4S •

(z) Venkata Chetti. (1883) 1 Weir 225.

(a) Harris v. London County Council , (1895) 1 Q. B. 240. ■>

SEC. 267 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 463

were the property ol the Crown (b). The evidence of customers receiving short
weight was held to be material for the purpose of showing that the accused defrauded
people by using such instruments and that * he intended that the same may be
fraudulently used ’ (c).

267. Whoever makes, sells or disposes of any instrument
for weighing, or any weight, or any measure
false wight or measure 6 or length or capacity which he knows to be
false, in order that the same may be used
as true, or knowing that the same is likely to be used as true, shall
be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both.

This section punishes a person who makes, sells or disposes of, any false scale,
weight or measure.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class— -Triable
summarily.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

made (or sold, or disposed of) exhibit , which was an instrument for

weighing (or a certain weight or measure of length or capacity) knowing at the time of
making (or selling or disposing of) it, to be false, in order that the said instrument
might be used as true (or knowing that the said instrument was likely to be used as
true) and thereby committed an offence punishable under s. 267 of the Indian Penal
Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

CHAPTER XIV.

Of offences affecting the Public Health, Safety,
Convenience, Decency and Morals.

This Chapter deals with eleven cases of nuisances as follows : —

(1) Spreading of infection (Ss. 269-271).

(2) Adulteration of food, drink or drugs (Ss. 272-276).

(3) Fouling water of public spring or reservoir (s. 277).

(4) Making atmosphere noxious to health (s. 278).

(3) Rash driving or riding on a public way (s. 279).

(6) Rash or negligent navigation of vessel (Ss. 280, 282).

(7) Endangering public ways (Ss. 281, 283.)

(8) Negligent dealing with poisons, combustible matter, explosive substance,

(Ss. 284-286).

(h) Justices of Kent, (1889) 24 Q. B. D. 181.

(c) Griffiths v. Place, (1808) L. R. 3 Q. B. 433.

454

THE INDIAN PENAL CODE

[CHAP. XIV

(9) Negligent conduct with respect to—

(a) Machinery (s. 287).

(A) Pulling down or repairing buildings (s. 288).
(c) Animals (s. 287).

(10) Spreading of obscenity (Ss. 292-294).

(11) Public gambling (s. 294-A).

S. 268 deals with public nuisance and the Chapter deals only with such nuisance
as affects the public. S. 290 provides punishment for public nuisance not other-
wise provided for and s. 291 punishes continuance of nuisance after injunction to
discontinue** Chapter X of the Criminal Procedure Code (Ss. 133-143) prescribe
the procedure for ‘Public Nuisance* and Chapter XI (s. 144) of the Code of
Criminal Procedure deals with a case of nuisance in cases of emergency or where
immediate prevention or speedy remedy is desirable.

268. A person is guilty of a public nuisance who does
„ any act or is guilty of an illegal omission

Public nuisance. ® J • • _ j

which causes any common injury, danger
or annoyance to the public or to the people in general who dwell
or occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right.

A common nuisance is not excused on the ground that it
causes some convenience or advantage.

Person — s. 1 1 . Act — s. 33

Illegal— s. 43. Public— s. 12. Injury- s. 44.

According to Sir James Stephen. “ Public Nuisance is an act not warranted by-
law or an omission to discharge a legal duty which inconveniences the public in the
exercise of rights common to His Majesty's subjects.

“ The public have a right to breath the air in a natural and unpoluted state.
A man, who makes foul or unwholesome smells, commits a nuisance, unless he can
justify or excuse himself. The public have a right to pass safely along public high-
ways, without danger or interruption. A person, whose duty it is to repair the
roads, and who fails to do so, whereby their safety or convenience is seriously
diminished, commits a nuisance. The public ha\e a right to be undisturbed by
riotous or disorderly proceedings and collections of ill-conducted people. Those,
therefore, who gather together collections of disorderly persons commit a nuisance.
In accordance with this principle brothels, gaming houses, betting houses and
disorderly places of entertainment are declared by statute to be common nuisances.
Acts tending to spread infectious diseases and the like are common nuisances. On
the other hand, an interference with a private right of way or noises made by a man
in his own house to the annoyance of his neighbour only, are not public nuisances
which are the subject of indictment, but only private wrongs for which the remedy
is by an action for nuisance or by injunction " (d).

Blackstone in his Commentaries defines nuisance {non amentum) as “ some-
thing that worketh hurt, inconvenience or damage. Nuisances are of two kinds,
public or common nuisances, which affect the public and are an annoyance to all the

(d) General View of Criminal Law p, 105.

SEC. 268] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 455

King's subjects, and are therefore treated as public wrong ; and private nuisances
which are done to the hurt , annoyance of the lands, tenements or hereditaments of
another " (e).

Mayne in his valuable commentary observes : “ Nuisances are either public
or private . The appropriate remedy for a public nuisance is by way of proceeding
under criminal law : for a private nuisance is by action or injunction ” (f).

Essential ingredients of the offence under this section : —

1 . A person must either do an act or must be guilty of an illegal omission.

2. Such act or illegal omission must cause —

(a) any common injury, danger or annoyance (i) to the public, or (n) to the

people in general who dwell or occupy property in the Vicinity ; or,

(b) injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.

Public and private nuisance Public or common nuisance is a nuisance
affecting the public or the people in general ; a private nuisance is an act affecting
some particular individual or individuals as distinguished from the public. They
both infringe the maxim of the civil law — Sic utere tuo ut alienum non laedas (Enjoy
your own property in such a manner as not to injure the rights of another) but
a public nuisance goes a step further — Solus rei publicoe supreme lex (that regard
be had to the public welfare is the highest law) (g).

A right to commit a private nuisance may under certain circumstances be
acquired by prescription (h).

4 nuisance not excused on the ground of legality/ etc. :—A right to
commit public nuisance can never be acquired by prescription (i).

Lord Ellcnborough, C. J., in a case said : “It is immaterial how long the
practice may have prevailed, for no length of time will legitimate a nuisance ” (j).

There is a maxim that a private mischief shall be endured rather than a public
inconvenience (k).

Nuisance by agents or servants : — In an indictment against a Gas Company
for a nuisance in conveying the refuge of gas into a public river, whereby the fish
were destroyed and the water was rendered unfit for drink, it was held that the
Directors were answerable for an act done by the Superintendent and Engineer, under
a genera] authority to manage the works, though they were perfectly ignorant of the
plan adopted (1). The owner of a business, so conducted by his agents and servants as
to cause a public nuisance, is liable to an indictment, although the nuisance is
occasioned by the acts of his servants contrary to the general orders, and he is
personally ignorant of the manner in which the business is so conducted (m).
The Calcutta High Court did not follow the case of Medley (i) and Stephens (j) as
those cases were decided under the common law. Richardson, J held : “ In India

(e) 3 Black, 210,

(f) Mayne ‘ Criminal Law of India ' 3rd edition, p. 603.

(g) Broom’s Legal Maxims, 7th Ed., p. 281.

(h) Tipping v. St . Helen’s Smelting Co (1806) L. R. 1 Ch. 66.

(i) Weld v. Hornby , (1806) 7 East, 195 ; Municipal Commissioners of the suburbs
of Calcutta v. Mahomed Ali, (1871) 16 W. R. Cr. 6 : 7 B. L. R. 499 ; Shots Iron Co.
V. Inglis, (1882) 7 App. cas. 618 ; Preonath Day v. Gobord hone Mai, (1897) 25 C. 278.

(j) Cross , (1812) 3 Camp. 224; Attorney General v. Richmond, (1866) L. R.
2 Eq. 306 (311) ; Tipping r. St, Helen’s Company, (1865) L. R. 1 Ch. 66 (69).

(k) Attorney General v. Bryant, 15 M. & W. 185.

(l) Medley , (1834) 6 C. & P. 292 ; Langher v. Pointer , 6 B. and C. 576.

(m) (1866) L. R. 1 Q. B. 702 : 10 Cox. C C. 340.

456

THE INDIAN PENAL CODE

[CHAP. XIV

the question is merely how the statute should be construed and the English cases
are, in our opinion, no authority on the construction of the Penal Code” (n).

Where it was proved that the defendant had converted his premises near a
public highway into a shooting ground, it was held that the defendant was liable
inasmuch as his keeping ground tor shooting pigeons attracted people discharging
fire-arms (o).

Littledale, J„ said : “ It has been contended that to render the defendant
liable it must be his object to create a nuisance, or else that must be the necessary
and inevitable result of his act. No doubt it was not his object ; but I do not agree
with the other position, because if it be the probable consequence of his act, he is
answerable as if it were his actual object. If the experience of mankind must lead
any one to eiqpect the result, he will be answerable for it,” and in that case the
verdict of guilty was affirmed (m) ; and it has been held that if a man erects a
building which is a nuisance and lets the land with nuisance, he is liable for the
acts of his tenants continued during the term of the lease (p).

Where the use of the premises gives rise to a public nuisance, it is the occupier
for the time being whoever he may be, who is liable and not the absent proprietor.
No doubt the proprietors might be liable for abetment (r).

* which causes any common injury, danger or annoyance to the public
or to the people in general who dwell or occupy property in the vicinity 9

— The injury contemplated here must affect the public and not some particular
individual or individuals. In general, it may be stated that anything which
seriously affects the health, safety, comfort or convenience of the community may
be termed as a public nuisance. Thus, drawing water for a canal from a filthy
and polluted source (s), carrying on trades which caused offensive smells .(0* * n "
tolerable noises (u), keeping wood naptha, or similar inflammable substances in such
large quantities in a warehouse near to the streets as to be dangerous to life and
property have been held to be * public nuisance ’ (v). So also is the trotting of
rams trained to fight in a market place guilty of this offence (w).

Throwing rubbish into one’s own garden does not constitute public nuisance (x),
but a person throwing sweepings on the road in front of his house and thus making
the atmosphere dangerous to health (y), or by allowing prickly pear to spread on
to a road used by the public commits public nuisance (z).

An indictment will fail if the nuisance only affects one or few individuals.
Where, therefore, upon an indictment against a tinman for the noise made in carry-
ing on his trade, it was found on evidence, that three members of Clifferd’s Inn were
affected and that by shutting the windows the noise was almost ‘ prevented, it was
held by Lord Ellenborrough, C. J., that the annoyance was, if anything, a private
nuisance (a).

(n) Bibhuti Bhusan Biswas V. Bhuban Ram, (1918) 46 C. 615.

(o) Charles Moore, (1832) 3 B. and Ad. 184.

(p) Ibid , p. 188.

(q) Pedley, 1 A. & E. 822 referred in Stephens , (1866) L. R. 1 O. B. 702 (706).

(r) Bibhuti Bhusan Biswas, (1918) 46 C. 615 : 22 C. W. N. 1062 : 29 C. L. J. 262.

(s) Attorney General V. Proprietor of Bradford Canal, (1866) L. R. 2 Eq. 71.

(t) Malton Board of Health V, Malton Manure Co,, (1879) 4 Ex, 302 ; Rapier V\
London Tramway Company, (1893) 2 Ch. 588.

(u) Lamboton V. Mellish, (1894) 3 Ch. 163.

(v) Lister ; (1857) 26 L. J. M. C. 196.

(w) Raja Sahaib, (1883) 1 Weir 243.

(x) Kuppa Pilai, (1888) Weil 242.

(y) (1883) 1 Weir 243,

(z) Maliappa Goundan, (1928) 52 M. 79 : A. I. R. (1928) M. 1236

(a) Allen V. Lyod, (1802) 4 Esp. 199.

SEC. 268] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 467

And every act will be a nuisance which obstructs the public in the use of a
highway or navigable fiver either by actually blocking up or narrowing the
available passage (b), or by causing such offensive smells as to be a substantial
annoyance to those using the highway although not to the people in general (c).

The injury or annoyance must be such as reasonable persons would complain

°f (d).

The omission of a person to keep his ponies from straying is not a public nui-
sance punishable under s. 290 (e).

No nuisance unless annoyance to the public : — In England, in a civil case,
it has been held that the Court will not exercise its jurisdiction where a trifling
trespass or an interference with an ancient right has been submitted to for
six years (f).

The fact that a prostitute visited a dak-bungalow after being warned not to do
so is not an offence under this section or s. 290 when she was not shown to have
annoyed any one, or committed any impropriety beyond attending a traveller at his
request (g) ; bare solicitation of chastity is not a public nuisance (h). The same
decision was given in another case by the Allahabad High Court where three pros-
titutes were charged under s. 290 for soliciting a passer-by on a public road at mid-
night (i).

The mere placing of cow-dung cakes by the side of the road does not constitute
an offence unless material annoyance is caused to the public (j).

This section does not apply to acts or illegal omissions offending senti-
ments of a class : — Where certain Mahamedans inhabiting a village erected
during the Muhorrum, a shed on land forming part of the village-site and placed a
religious symbol in that shed, it was held that such act did not amount to a public
nuisance because it might cause annoyance to the Hindu inhabitants of the village
whose temples were in the vicinity (k). This case was followed by the Allahabad
High Court where certain Mahamedans, for a religious purpose, killed and cut up
two cows before sunrise in a private compound, partly visible from a public road, and
the killing of one of the cows only was witnessed by one Hindu (I).

The mere fact of keeping a shop for the sale of meat does not come within the
definition of public nuisance (m). Skinning an animal which had died a natural
death was held to be not a public nuisance (n).

Gaming house : — Under English law the keeping of a brothel or a gambling-
house is indictable as a nuisance as it causes injury to public morals (o). But this
is not an offence under the Indian Penal Code as the Calcutta High Court held that
gambling is not an offence such as is defined in $. 268 (p). But the Madras High

(b) Petition of Umesh Chandra, (1887) 14 C. 656.

(c) R. v. Neil, (1820) 2 C. & P. 485 ; Aogston v. Aberdeen District Tramway Co.,
(1897) A. C. Ill ; Benjamin v. Storr, (1894) L. R. 9 C. P. 400.

(d) Attorney General v. Corporation of Nottingham, (1904) 1 Ch. 673.

(e) Joy natk Mondal v. Jamul Sheikh, 0 W. R (Cr.) 71 ; Velupoo Kotadu, (1894)
1 Weir 244.

(f) Gaunt v. Fynney, (1872) 8 Ch. App. 8.

(g) Musammat Begum, (1870) 2 N. W. P. H. C. R. 349.

(h) Raji, (1885) Rat. Unrep. Cr. C. 765.

(i) Nanni, (1899) 22 A. 113.

(j) Bapu Jaga, (1886) Rat. Unrep. Cr. C. 297.

(k) Mutumeira, (1884) 7 M. 590 ; Byramji Edalji, (1887) 12 B. 437.

(l) Zakuddin, (1887) 10 A. 44 ; Shabaz Khan v. Umrao Puri, (1908) 30 A. 181.

(m) Byramji Edulji, (1887) 12 B. 437.

(n) Beni, (1814) 12 A. L. J. 349.

(o) 1 Hawk, P. C. 093.

(p) SashiKumar Bose, (1903) 7 C. W. N. 710.

458

THE INDIAN PENAL CODE

[CHAP. XIV

Court held, in a case where the lessee of a house permitted disorderly people to use
it for gambling and thereby caused annoyance to the public, that the conviction under
s. 290 was right (q). In a Bombay case, the Court held following the English deci-
sions that 44 a common gambling house to which every one who chooses to pay is
able to go, is necessarily^ nuisance and that no evidence of any actual annoyance
to the public is in such a case required ” (r).

Mayne in his valuable commentary doubts the Madras (q) and Bombay (r)
decisions and observes : 44 1 doubt, however, whether such injury comes within any
of jthg terms of s. 268 44 (s).

. j But it is an offence under various Police Acts to keep or to gamble at a common
gaming house (t).

Common nuisance is not excused because it causes some conveni*
ence or advantage : — *In a leading case on nuisances , Lord Westbury, J.,
said : 44 It is a very desirable thing to mark the distinction between an action
brought for a nuisance upon the ground that the alleged nuisance produces material
injury to the property, and an action brought for a nuisance on the ground that the
thing .alleged to be a nuisance is productive of sensible discomfort. If a man
lives in a town, it is necessary that he should submit himself to the conse-
quences of those operations of trade which may be carried on in the immediate
locality* which are actually necessary for trade and commerce, and also for the
enjoyment of property and for the benefit of the inhabitants of the town and the

public at large But when an occupation is carried by one person in the

neighbourhood of another, and the result of that occupation is a material injury
to property, then there unquestionably arises a very different consideration. I think
that in a case of that description, the submission which is required from persons
in society to that amount of discomfort which may be necessary for the legitimate
and free exercise of the trade of their neighbours, would not apply to circumstances
the immediate result of which is sensible injury to the value of his property. 44 In
the same case at p. 653, Lord Wensleydale said : 44 Everything must be looked at
from a reasonable point of view. Therefore the law does not regard trifling and
small inconveniences, but only regards sensible inconveniences, injuries which
sensibly diminish the comfort, enjoyment or value of the property which is
affected* 4 (u).

Abbott, C. J., observed : 44 It is not necessary that a public nuisance should
be injurious to health ; if there be smells offensive to the senses, that is enough
as the neighbourhood has a right to fresh and pure air. The presence of other
offensive trades — other nuisances of knackers, i.e., that melters of kitchen stuff, etc.,
will not justify any of them ; or the more nuisances there were, the more fixed they
ftould be, however, one is not the less subject to prosecution because others are
culpable (v).

44 In considering cases of nuisance between owners of adjoining houses the
Court will have regard to the question whether the person alleged to have created
the nuisance is making a reasonable use of his property 44 (w).

(q) Thandaverayudu, (1891) 14 M. 364.

(r) Hau Nagji , (1870), 7 B. H. C. R. (Cr. C.) 74.

(s) Mayne * Criminal Law of India, * 3rd edition, p. 604.

(t) Act XIII of 1856, Ss. 57, 87 ; Act IV of 1867, Ss. 4-6 ; Bengal Acts II of

1867, Ss. 25, 26 and IV of 1866, Ss. 44, 45; Madras Act VIII of 1867, Ss. 31, 32;
Bom. Act IV of 1887, Ss. 4, 5. See Balu, (1897) 19 A. 311 ; Makund Ram, (1897), 25
C. 432 ; Baivaju, (1896), 22 B. 745. v '

(u) St. Helens Smelting Co. v. Tipping , (1866), 11 H. L. C. 642 at pp. 650. 653.

m Neil, (1826), 2 C. and P. 485.

Vw) Sanders Clerk v. Grosvenor Mansions Co. (1900), 2 Ch. 373,

SEC. 268] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 459

Stephen, J., observed : “ Though I think that to bum a dead body decently
and inoffensively is not criminal, it is obvious that if it is done in such a manner as
to be offensive to others it is a nuisance of an aggravated kind ” (x).

*

No buisance in cases of lawful cremation or disposal of corpses

The same question that was considered under the last heading ‘ nuisance not
excused on the ground of convenience or advantage ’ is dealt with in connection
with annoyance caused by burning grounds.

In cases of this description it is clear as Sir James Fitz Stephen (Digest of
Criminal Law, 5th Edition, 140) observed: “The fact that the act combined
of facilitates the lawful exercise of their rights by part of the public shows that it is
not a nuisance to any of the public/'

In Madras, in a case where it has been the practice for forty years to burn the
dead bodies at a place adjoining the bathing ghat near Cauvery but on the objection
of the villagers the accused was convicted under s. 290 for a fresh act of burning
at that place after a magisterial order, it was held “ when persons, like the accused,
entitled to use a particular spot dedicated for the communal purposes of cremation,
use it for that purpose in a manner neither unusual nor calculated to aggravate the
inconveniences necessarily incident to such an act as is generally performed in this
country, it must be admitted that he does what is lawful “ and the conviction was
set aside (y). Against the above decision an application was made to the Privy
Council and their Lordships of the Judicial Committee refused the application on
the ground that the question as to what constituted a nuisance was a mixed question
of law and fact , and held that they would not decide in opposition to the High
Court that an act, apparently a nuisance, was, in fact such, according to native ideals.
That application was decided on February 6, 1897, but has not been reported. Mr.
Mayne was the Counsel for the petitioner (z).

Although a burning ghat or cremation ground may not in itself be a ‘ nuisance*,
within the meaning of s. 133 of the Criminal Procedure Code (Act X of 1882), a
Magistrate will have jurisdiction to take action under that section if it is shown
that such a ghat or ground is in such an offensive state, or that cremation is carried
upon it in such an offensive manner as to be a source of injury, danger, or annoyance
to the person living in the vicinity (a).

Nuisance not excused on the ground of legality of the act or that the
act is more advantageous on the plea of prescriptive right Where an act
is a nuisance to the public it is no defence to say that it is in itself a perfectly lawful
act, and that it is done upon his own land, and in a proper manner, for the legality
consists in using one's own property in such a manner as to cause annoyance, harm
or danger to the public (b).

Where the defendant was found guilty of obstructing the harbour of C, by
the election of an embankment and the Jury held that although the obstruction
amounted to a nuisance, the inconvenience was counterbalanced by the public
benefit arising from the acts of the defendant, the Court of appeal upheld the
conviction (c).

(x) Price , (1884), 12 Q. B. D. 247.

(y) Saminadha Pillai, (1896) 19 M. 464 (468) ; Muhammad Mohidin Sait v.
Municipal Commissioners of the City of Madras , (1901) 25 M. 118.

(*) Mayne 1 Criminal Law of India, ' 3rd edition, p. 611 .

(a) Indra Nath Bannerjee , (1897) 25 C. 425 : 2 C. \V. N. 113.

(b) Bamford v. Tunley , 31 L. J. Q. B. 286.

(c) Ward, (1836) 4 A. and E. 384 (404) ; Train , 2 B. and S. 640 : 31 L. J. M. C.
169.

460

THE INDIAN PENAL CODE

[CHAP. XIV

The Court should take into consideration surrounding circumstances (d).

Legalised nuisance : — These are cases where the Legislature authorises the
doing of an act which would otherwise be a nuisance. Where in the case of a
railway company the Legislature authorised them to build a railway station, go-
downs, it also impliedly authorised the doing of a nuisance which would otherwise
be occasioned as a matter of course (e). In another case, it has been held in Eng-
land that a railway company could not be indicted because the engines and trains
frightened horses on the high road (f). Nor is there any obligation on a railway
Company to conceal their engines by screening them or take such extraordinary
precautions than were necessary to run their business in a proper manner (g).

In all these cases, it must be determined upon the wording of the particular
Statute, and upon the facts of the case whether the Legislature intended that the
thing should be done, although it amounts to nuisance (h) or merely authorised the
doing of it, provided the act could be done without being a nuisance. So Lord
Watson said : “ Where the terms of a Statute are not imperative, but permissive
(when it is left to the discretion of the persons empowered to determine whether
the general powers committed to them shall be put into execution or not), I think
Jfche fair inference is that the Legislature intended that discretion to be exercised in
strict conformity with private rights and did not intend to confer license to commit
nuisance in any place which might be selected for the purpose " (i). In this case
the question for decision was whether a small-pox hospital was a public nuisance and
Lord Blackburn, at p. 204, said : “ When the disease is infectious, there is a legal
obligation on the sick person, and on those who have the custody of him, not to do
anything that can be avoided which shall tend to spread the infection ; and if either
do so as by fringing the infected person into a thoroughfare, it is an indictable
offence, though it will be a defence to an indictment if it can be shown that there was
sufficient cause to execute what was prima facie wrong (j).

A railway company which is permitted to construct their line on a level-crossing
over a highway is bound to construct it in such a manner that carriages may cross
the rails without injury (k).

This section defines a public nuisance not merely as any act or illegal omission
which must necessarily cause injury, obstruction, etc., to persons who may have
occasion to use any public right (1).

* which must necessarily cause injury, obstruction, danger or annoy*
ance to persons who may have occasion to use any public right 9 t—Any
individual may complain against the infringement of a public right.

The Madras High Court has held, in a case where a person who had widened
the pials in front of his house by about three feet and thereby encroached the
street and was acquitted by the Magistrate on the ground that he did not cause any
4 danger, obstruction or annoyance,' that the order could not be sustained as who-
ever appropriates any part of the street by building over it infringes the right of the

(d) Sturges v. Bridgman , (1879), 11 Ch. D. f p. 865; Per Lord Halsbury in
Fleming v. Hislop, (1865), 11 App. Cas. 642 (697).

(e) London and Brighton Ry. Co. v. Truman, 11 App. Cas. 017.

(f) Pease , (1833) 4 B. and Ad. 30 ; Metropolitan Asylum v. Hill , 11 App. Cas. 45.

(g) Simhin v. London and North Western Ry. Co 21 Q. B. D. 453 ; per Lord
Blackburn, in London and Brighton Ry. Co. v. Truman , 11 App. Cas. 017.

(h) City of Montreal v. Standard Co ., (1897) A. C. 627 ; Mayor of East Free
Mantle v. Aunois t (1902) A. C. 213.

S Metropolitan Asylum District v. Hill, 0 App. Cas. 193 (213).

Ibid, p.204.

(k) Oliver v. North Eastern Ry L. R. 9 Q. B. 409.

(1) Nisar Mohammad Khan, (1925) 0 L. 203.

SEC. 268] OFEJJNCES AFFECTING THE PUBLIC HEALTH, ETC. 461

public.— ' jthe #et must necessarily cause obstruction to persons who may have

oewsion to use their public right over the part-encroached upon ' (m).

%

€ injury # — must be to the people in general (n).

The piere (act of an encroachment on a tidal navigable river does not necessarily
amount to a public nuisance (o), but obstruction by filling up a public drain is a
nuisance under s. 290 (p).

The existence of a house abutting on a highway in a dilapidated and dangerous
condition is a nuisance as it causes danger to the passers-by (q) ; making a great
noise at night with a speaking trumpet (r), erecting a privy on a highway ($) are
cases of nuisance causing annoyance to persons exercising public right. So also
indecent acts or immoral acts constitute public nuisance, e.£., a naked exposure of
one’s person to the public whether from the balcony of one’s house (t), or from
a public place as a urinal (u), or from an omnibus (v), or a bathing place by which
ladies pass (w), or the exhibition of a naked figure with sores as an advertisement by
a herbalist (x). Exposing the naked dead body of a child in the public highway (y) p
negligently blasting stone in a quarry so as to endanger safety of the persons living
in the vicinity (z) ; keeping a brothel or a bawdy house (a), and indecent language
in a public house (b) p have been held to be public nuisance.

Annoyance to one person has been held sufficient to constitute an offence under
this section (c).

The allowing of a prickly-pear to spread on to a road used by the public is a
public nuisance (d).

Procession In a civil case on nuisance, the Madras High Court* (e) following
the Privy Council decision in Manzur Hasan v. Muhammad Zaman (f) had held
that the Hindus have right to conduct procession in public streets with music so
long as they do not interfere with the ordinary use of the street by the public and
subject to lawful directions by the Magistrate. The Muhammedans deliberately
built their mosque cheek by jowl with the Hindu temple and in such a case the
newcomer must respect the religious sentiments and services of the older inhabi-
tants. It would be different if the service in the Pilliar temple amounted to a gene-
ral public nuisance but no such case forwarded was found and the appeal was dis-
missed.

(m) Virappa Chetti, (1896) 20 M. 483.

(n) Munna Tewari v, Chandrabali, A. I. K. (1928) All. 627.

(o) Jugal Das Dalai, (1893) 20 C. 605.

(p) Roopnarain Dutt , (1872) 18 YY. R. (Cr.) 38.

(q) Waits , (1804) 1 Salk, 357.

(r) Smith , (1726) 2 Stan. 704.

(s) 3 Went, 225.

(t) Thallmaii, (1863) 9 Cox. 388.

(u) Harris, (1871) L. R. 1 C. C. R. 282 : 40 L. J. (M. C.) 67.

(v) Charles Holmes, (1852) Dears Cr. C. 267 : 22 L. J. M. C. 122.

(w) Grey, (1864) 4 F. and F. 73 ; Reed , (1871) 12 Cox 1 .

(x) Saunders, (1875) l Q. B. D. 15 (18, 19).

(y) Jane Clark, (1883) 15 Cox. 171.

(i) Mutters, (1864) 34 L. J. M. C. 22.

(a) Rice, (1866) L. R. 1 C. C. R. 21.

(b) Rttsson v. putton, (1911) 22 Cox. C. C. 490. **

(c) Lallu Ram, (1923) 21 A. L. J. 772 : 25 Cr. L. J. 332 : 77 1. C. 188 : A. I. R.
(1924) All. 194.

(d) In re, Malappa Gonndan , (1929) 52 M. 79, distinguished in Kanak Chand,
(1929) 11 L. 236.

c) Jafar Hussain Khan Sahib v. Krishna Servai, (1929) M. L. J. 703.

(f) 52 I. A. 61 : 47 A. 151 : 48 M. L. J. 23 (P. C.).

402

THE INDIAN PENAL CODE

*, [CHAP. XIV

269. Whoever unlawfully or negligently clods any “ .act
Negligent act likely which Is, and which he knows of has reasOn
^sel P se ea dangerous n to believe to be, likely to spread the infection
life. * of any disease dangerous to lifer shall be

punished with imprisonment of either description for term
which may extend to six months, or with fine, or with both.

Act— Ss. 32 & 33. Reason to believe — s. 26.

Life — s. 45.

Procedure Cognizable — Summons — Bailable — Not compoundable— Triable
by Presidency Magistrate or Magistrate of the first or second class— Triable
summarily.

In an offence under this section the prosecution must prove that he had
unlawfully or negligently done an act which he knew or had reason to believe would
spread infectious disease (g).

To support a conviction under either s. 270 or 269 it must be established*
not merely that the act committed by the accused person was prejudicial to health*
but (first), that it was likely to spread the infection of some particular disease dan -
gerous to life and (secondly), that the accused person knew or had reason to believe
it to be likely to spread that disease (h).

Mayne, in his valuable commentary, observes : “ Sections 269 and 270 make it
a punifchalJii offence to do any act which is, and which the accused knows or has
reason to believe, to be likely to spread the infection of any disease dangerous to
life. It is further necessary, under the former section, that the act should have
been dofte unlawfully or negligently ; under the latter section, malignantly, which
I suppose, means with a deliberate intention that the above result should follow.
If & death ensued from an act done under s. 270 it would undoubtedly be murder.
S. 269 agrees with the English common law M (i).

* likely to spread the infection of any disease dangerous to life 9

Lord Blackburn in considering the duty of a person not to spread infectious diseases,
in a case where the question was whether a small-pox hospital near the properties
of a person (plaintiff) constituted a public nuisance, observed : “ When the disease
is infectious, there is a legal obligation on the sick person, and on those who have the
custody of him not to do anything that can be avoided which shall tend to spread the
infection ; and if either do so, as by bringing the infected person into a thorough-
fare, it is an indictable offence, though it will be a defence to an indictment if it can
be shown that there was a sufficient cause to execute what is prima facie wrong ” (j).

Small-pox : — It is not an offence to inoculate with smalLpox when such
inoculation is done as a preventive measure (k), but it is an offence to carry a child
suffering from small-pox through the public streets, or into any place of public
resort, without necessity (1). Where a mother refused to allow her daughter suffer-
ing from small-pox to |>e removed to a hospital in accordance with an order made by
the District Magistraf^ind she objected and said that if her daughter be removed,
she must also be removea, it was held that the conviction under this section could

(g) P. Kandaswami Mudaltar , (1919) 43 M. 344 : 38 M. L. J. 80 : 26 M.TTtT
386 : 20 Cr. L. J. 786 : 63 I. C. 689.

(h) Goria, (1893) 7 C. P. L. R, 5.

(i) Mayne, * Criminal Law of India, * 3rd Edition, p. 615.

a ) Metropolitan Asylum District v. Hill, 6 App. Cas. 193, pp. 204, 206,

;) Burnett, (1816) 4 M. and S. 272.

(1) Vantandillo, (1815) 4 M. and S. 73.

SEC. 269] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. $63

not* be sustained (m). Where the defendant!, a Steam Navigation G>mpany, made
a contract with the plaintiff to carry 500 pilgrims who were about to arrive in
Bombay from Singapore in the plaintiff** ship, the 4 Stura \ and the defendants
refused to <$rry the pilgrims on the ground that there had been an outbreak of
small-pox on board, neM that the performance of the contract was not unlawful
and the fisk of the disease was not greater than would necessarily be incurred in
every crowded emigrant ship (n).

Cholera: — Where a person suffering from cholera entered a train # as a
passenger without informing the railway company’s servants of his condition, it
was held that he was guilty under this section (o).

Where the accused failed to take proper sanitary precautions at his brickfield
and the result was an out-break of cholera which lost many lives, held that no
offence under s. 269 was proved (p).

Plague : — Where the accused who was in contact with a plague patient left
the plague-shed against orders and travelled by rail to a neighbouring town, it was
held that he was guilty, for he had sufficient reason to believe that his act was dan-
gerous and was likely to spread infection (q).

Glanders : — Where a person brought a horse infected with glanders in a public
place to the danger of infecting other people, he was held guilty of an indictable
offence (r).

Syphilis -Where a person, who while suffering from syphilis communicates
the disease to a person who has sexual intercourse with her, held , she is not liable
to punishment under this section for a negligent act and one likely to spread
infection of any disease dangerous to life. West, J. observed: " Assuming that
there was dangerous disease and culpable negligence, still accused's act of sexual
intercourse would not spread infection without the intervention of the complainant
party himself generally an accomplice. If there was an offence in this case, it
was one of cheating punishable under s. 417 or s. 420 (s).”

Where the prisoner was convicted upon an indictment charging him ' with
unlawfully and maliciously inflicting grievous bodily harm ' upon his wife, and
with an * assault * upon her 1 occasioning actual bodily harm ' under Ss. 20 and 47
respectively of 24 and 25 Viet. c. 1 00, and it appeared that at a time when the prisoner
knew, but his wife did not know, that he was suffering from gonorrhoea, he had
connection with her, and the result was that the disease was communicated to her,
and that had she been aware of his condition, she would not have submitted to the
intercourse, it was held that the conduct of the prisoner did not constitute an
offence under either section of the statute, and that the conviction must be
qashed (t).

Where the indictment was for an indecent assault on a girl who has consented
to sleep with the prisoner, who had connection with her and communicated to her
a foul disease, Willes, J., held that the act would be an assault (u). This case was
followed by Shee, J., in Sinclair* s case (v), but these two cases were doubted in

(m) Cahoon v. Mathews , (1897) 24 C. 494, followed In ; fCandaswami Mudaliar ,
(l»l») 43 M. 344 : 38 M. L. J. 80 : 26 M. L. T. 386 : 20 Cttdfc. J. 785 : 53 I. C. 689.

(n) The Bombay and Persian Steam Navigation Co. Ltd. v. The Rubattino Co.
Ltd., (1889) 14 B. 147.

* (o) Krishnappas (1883) 7 M. 276, referred to in Goria , (1898) 7 C. P. L. It.

(Cr.) 5.

(p) Rangdlal Singh A. I. R. (1923) Rang. 140 : 23 Cr. L. J. 586 : 81 I. C. 74.

(q) Niader Mai , (1902) P. R. No. 22 of 1902,

(r) Thomas Henson , (1852) Dears C. C. 24.

(s) Rakhmakom Sadhu, (1886) 11 B. 59 (61).

(t) Clarence , (1888) 22 Q. B. D. 23.

(u) Bennet, 4 F. and F. 1105.

464

THE INDIAN PENAL CODE

[CHAP. XIV

Ireland cm the ground that where there is the absence of consent by the wqtnan
there should be a conviction (w).

270., Whoever malignantly does any act which is, and which
i:L. k , he knows or has reason to believe to he, likely

Malignant act likely 1 1 * r * t « » v - .

to spread infection of to spread the infection or any disease dan-
disease dangerous to gerous to life, shall be punished with

imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

Malignantly-

s. 153.

Reason to believe-

Act — Ss. 32 & 33.

-s.

26.

The offence under this section is the same as is dealt with under the preceding
section but in an aggravated form — the difference in the act is ‘ malignantly * in this
section whereas under the preceding section it is done 1 unlawfully or negligently/

The Law Commissioners observed : “ If any person died of plague, and his
death could be traced to infection so caused maliciously, the person who caused it
would be chargeable with homicide. It is contrary to the principles of the Code
to punish acts which the doer when he committed them, knew to be likely to cause
certain results, if in fact such results were not produced in the same manner as if
such evil consequences had actually followed from them ” (x).

For commentary see notes under section 269.

Procedure : — Cognizable — Summons — Bailable — Not compoundable— Triable
by Presidency -Magistrate or Magistrate of the first or second class.

Charge : -I ( name and office of Magistrate , etc.) charge you ( name of
accused) as follows: —

That you, on or about the -
malignantly did an act to wit-

day of , at

, knowing or having reason to believe

that the said act was likely to spread the infection of a disease dangerous to life,

namely and that you thereby committed an offence punishable

under s. 270 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

The mere burial of a carcass in or near a village is not an offence under s. 269
or s. 270 (y).

271. Whoever knowingly disobeys any rule made and
rx . a . promulgated by the Government of India,

Disobedience to quar- \ ^ e 1

antinc rule. or by any Government, tor putting any vessel

into a state of quarantine, or for regulating
the intercourse of vessels in a state of quarantine with the shore
or with other vessels, or for regulating the intercourse between
places where an infectious disease prevails and other places, shall
be punished with imprisonment of either description for a term

which may extend to six months, or with fine, or with both.

+■

(v) 13 Cox. C. C. 28.

(w) Hegarty v. Shine, I4’Gjx. C. C. 124.

Ik) 2nd Rep., s. 226.

(y) Goria, (1823) 7 C. P. L. R. (Cr.) 6.

SEC. 272 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 405

Procedure j — Non-cognizable — Summons — Bailable — Not cotnpoundable —
Triable by Presidency Magistrate or Magistrate of the first or second Class-
Triable summarily.

Any role made and promulgated by Government i— ’ The Government
has been empowered to frame rules under the Indian Ports Act (z) and the Epidemic
Diseases Act (a), and disobedience of such rules are punishable under this section.

272. Whoever adulterates any article of food or drink.
Adulteration of food so as to make such article noxious as food or
or drink intended for drink, intending to sell such article as food
sa1e or drink, or knowing it to be likely that the

same will be sold as food or drink, shall be punished with im-
prisonment of either description for a term which may extend to
six months, or with fine which may extend to one thousand rupees,
or with both.

This section deals with adulteration of food or drink intended for sale, and
punishes adulteration when the result is that the article is noxious as food or drink.

Analogous law : — The provisions of this section and the next are
in accordance with the English common law (b). In England the Sale of Food
and Drugs Act, 1875 (38 and 39 Viet., c. 63) as amended by the Sale of Food and
Drugs Amendment Acts, 1879, (42 and 43 Viet., c. 30 and those of 1899, 62 and
63, Viet., c. 51) provide for the sale of unadulterated food and drugs. The Eng-
lish Act not only prohibits the mixing of injurious ingredients with food with the
intention that the same may be sold but s. 6 prohibits the prejudicial sale of food
which is not of the nature, substance and quality of the articles demanded by the
purchaser (c), and s. 9 deals with adulterated food.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class — Tiiable
summarily.

Order for destruction : — On a conviction under this section the Court may
order the food, drink, drug or medical preparation in respect of which the con-
viction was had to be destroyed (d).

Noxious •““The word * noxious * means injurious to health. Thus, the
mere adulteration with harmless ingredients for the purpose of more profits is not
punishable under this section, e.g . 9 adding water to milk (e). Mixing water with
milk is adulteration but not noxious (f). Such is also the case where vegetable oil
is mixed with ghee — no offence under the Indian Penal Code (g). Toddy in which
germs have germinated is ‘ noxious * (h). The sale of adulterated food which is not
* noxious ’ may constitute the offence of cheating or an offence under the Municipal
Act but is no offence under this section (i). In England it has been held that bread
mixed with alum is * noxious * (j).

( 2 ) Act III of 1901 repealing the Indian Quarantine Act (I of 1870).

(a) Act III of 1897.

(b) Stevenson, 3 F. and F. 106; Jarvis, 3 F. and F. 108.

(c) Knight v. Bowers, (1886) 14 Q. B, D. 846.

(d) S. 621 (2), Criminal Procedure Code.

(e) Chenniah, (1897) 1 Weir. 228.

(f) Abdul Rahaman, (1902) 1 L. B. R. 153.

(g) Chohrai , (1908) 12 C. W. N. 608 (it is an offence under the Ghee Adultera-
tion Act.)

(h) Ediga Narasapa, (1894) 1 Weir. 228.

(i) Baishtab Charan Das v. Upendra Nath Mitra. (1898) 3 C. W. N. 66.

(j) John Dixon, (1814) 3 M. and S. 11.

36

466

THE INDIAN PENAL CODE

[CHAP. XIV

Noiious as food :--This expression means unwholesome as food or injurious
to health and not repugnant to one's feelings. It has accordingly been held by the
Allahabad High Court that a person who mixes pig’s fat with ghee intending to sell
the mixture as food or knowing it to be likely that it will be sold as such, cannot be
convicted of an offence under this section (k).

Food : — In considering whether ‘ tea * or 4 tea-dust * is an article of human
food or drink within the meaning of s. 495 of the Calcutta Municipal Act, (Ben.
Act VI of 1899) Walmsley, J., observed that 4 food ’ as defined in Sale of Food and
Drugs Act of 1875, (38 and 39 Viet., c. 63, s. 2) is that 4 food * shall include every
article used for food or drink by man other than drugs or water and the Amending
Act of 1899, (62 and 63 Viet., c. 51) added that ‘food' shall include also. any article
which ordinarily enters into or is used in the composition or preparation of food
and shall include flavouring matters and condiments and further held that if 44 there
is any difficulty in determining the true meaning of the words 4 article of human
food or drug ' the definition given in the Sale of Foods and Drugs Act makes the
meaning plain ’* (1).

Adulteration Acts See the Bengal Food Adulteration Act (Ben. Act VI
of 1919), the Punjab Adulteration of Food Act (Punjab Act VI of 1919), the Central
Provinces Prevention of Adulteration Act (C. P. Act II of 1919), the Behar and
Orissa Food Adulteration Act, (Behar Act VI of 1919).

273. Whoever sells, or offers or exposes for sale, as food
or drink, any article which has been rendered
or drihk° f noxious foocl or has become noxious, or is in a state unfit

for food or drink, knowing or having
reason to believe that the same is noxious as food or drink, shall
be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend
to one thousand rupees, or with both.

This section punishes sale of noxious food or drink. It is wider than the last
section which deals with adulteration of food or drink intended for sale inasmuch as
it comprehends articles rendered noxious by lapse of time.

Procedure :—Non-cognizable— Summons— Bailable— Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first or second class.

Order for destruction * The Court may, on a conviction under this section,
order the food, drink, drug or medical preparation, in respect of which the con-
viction was had to be destroyed (m).

Sale of noxious food or drink Under the common jaw it is a nuisance
knowingly to send to market for human food, meat which is unfit for human
consumption (n), but a person in England is not indictable at common law for
sending such meat to a salesman in a market unless he, the defendant, knew and
intended the meat to be sold for human food (o). In an English case decided under
the analogous provisions of the Sale of Food and Drugs Act, 1875, it was held that
the sale of a packet of baking powder which contained 20 per cent, of bicarbonate
of soda, 40 % of ground rice and 40 % of alum— an article which is injurious

(k) Ramdayal, (1903) 40 A. 94 : 21 A. L. J. 870 : 83 I. C. 1004 : A. J. R. (1924)

All. 214. j

(l) Corporation of Calcutta v. Pagli, (1019) 47 C. 53.

(m) S. 521 (2), Criminal Procedure Code.

(n) Stevenson , (1862) 3 F. and F. 106.

(o; Crawley, (1862) 3 F. and F. 109,

SEC, 273 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 407

to health, could not be convicted as such baking powder was not an aritlcle of
food (p). Where the owner of a grain-pit sold the contents of the pit before it was
opened at a certain sum per maund whether the grain was good or bad, and on the
pit being opened it was found that a large proportion of the grain was unfit for
human consumption, it was held that the vendor could not be convicted under
this section (q).

‘which has been rendered or has become noxious or is in a state unfit
for food or drink* : — Where the accused was convicted by the Magistrate under
this section for exposing for sale some ghee which was bad and the chemical analysis
showed that the ghee was not adulterated but was somewhat * rancid * and the
Allahabad High Court in accepting the reference by the Sessions Judge held : “Before
a person can be convicted under this section it must be shown that the article which
he has sold or exposed for sale was, to his knowledge or belief, noxious as food or
drink" (r).

* exposes for sale * : — In order to constitute an offence under this section
one of the essential requisite is that the accused sold, or offered, or exposed for sale,
any noxious food or drink.

In England, in a case where a salesman, who had received bad meat for sale
from a customer who knew it was bad, had put it aside and then drew the attention
of the inspector to it before it had been exposed for sale , it was held that the owner
of the meat could not be convicted (s). Where an accused person kept margarine
for sale in his shop in a parcel which was not labelled, behind a screen, and not in
sight of customers, and further there was no evidence that this was done for the
purpose of evading the Act, it was held that the margarine was not exposed for
sale within the meaning of the Margarine Act (50 & 51 Viet., c. 29) (t). Where
a person contracted to supply milk to a work-house which was to contain a certain
percentage of cream and his supply used to be sent in 5 cases, and samples taken
from each of the cases on examination was found to contain a large deficiency of
cream, he was convicted separately for each sample, it was held that he was rightly
convicted (u). Ordinarily every shop-keeper has a right to exhibit his wares as he
likes, but he must exercise that right so as not to annoy or cause nuisance to the
public (v).

Offering or exposing for sale toddy in which worms have germinated is an
offence under this section (w). Milk is not rendered noxious or unfit for drinking
by being mixed with water (x).

Knowing or having reason to believe that the same is noxious

Where the accused sold a quantity of old and gritty flour at a reduced rate and
informed the purchaser that the flour was bad and was therefore sold cheap,
he was held to have committed no offence under this section (y). There is no
warrant in law for the presumption that the accused knew or had reason to believe

(P) James v. Jones, (1804) 1 Q, B. 304,

(q) Saltgram, (1906) 28 A. 312.

(r) Sheo Lai , (1904) 20 A. 387.

(s) Barlow v. Terrel , (1891) 2 Q. B. 107.

(t) Crane v. Lawrence , (1890) 25 Q. B. D. 152, following in Wheat v. Brown,
(1892) 1 Q. B. 418 ; Moore v. Pearce's Dining and Refreshment Rooms , (1895) Weekly
Notes 136 (English).

(u) Fecitt v. Welsh , (1891) 2 Q. B. 304.

(v) Noor Mahomed, (1911) 35 B. 368: 13 Bom. R. 209: 12 Cr. L. J. 258;
10 I. C. 804.

(w) Ediga Narasappa, (1894) 1 Weir 228.

(x) Chinniah , (1897) 1 Weir 228.

(y) Gunesha, 0873) P. R, No. Iff,

468 THE INDIAN PENAL CODE [ CHAP. XIV

that an article of food would be unfit for consumption and like other ingredients
of the offence this has to be proved (z).

Liability of masters and servants s— Under the Sale of Food and Drugs
Act (38 and 39 Viet., c. 63) a servant of a proprietor of a firm who sells milk adul-
terated with water is liable to conviction (a).

274. Whoever adulterates any drug or medical preparation

, 1r „„o »n such a manner as to lessen the efficacy or
change the operation ot such drug or medical
preparation, or to make it noxious, intending that it snail be sold
or used for, or knowing it to be likely that it will be sold or used
for, any medicinal purpose, as if it had not undergone such adul-
teration, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

Procedure : — Not cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class, and may
be tried summarily.

Order for destruction On a conviction under this section the Court may
order the drug or medical preparation to be destroyed (b).

275. Whoever, knowing any drug or medical preparation to

have been adulterated in such a manner" as
drugs* adu terated to lessen its efficacy, to change its operation,

or to render it noxious, sells the same, or
offers or exposes it for sale, or issues it from any dispensary for
medicinal purposes as unadulterated, or causes it to be used for
medicinal purposes by any person not knowing of the adulteration,
shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine, which may
extend to one thousand rupees, or with both.

This section punishes a person who knowing a drug or medical preparation
to be adulterated offers the same for sale or issues it from a dispensary as unadul-
terated. This section is analogous to s. 274 as s. 273 is analogous to s. 272.

Procedure : — Non-cognizable — Summons— Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class — Triable
summarily.

Order for destruction : On a conviction under this section the Court

may order the drug or medical preparation, in respect of which the conviction was
bad, to be destroyed (c).

4 sells * : — The seller is the person whether he be master or servant, principal,
or a person to whom the conduct and management of sales is delegated (d). A
mere canvasser who gets commission for receiving orders is not a seller (e).

(at) Mukund Ram , (1922) A. I. R. All. 273.

(a) Hotchin v. Hindmorsh , (1801) 2 Q. B. 181.

(b) S. 521 (2), Criminal Procedure Code.

(c) Ibid.

(d) Pharmaceutical Society v. London and Provincial Supply Association, (1883)
5 App. Case 857.

(c) Pharmaceutical Society v , White , (1901) 1 K. B. 801.

SECS. 276-77] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 469

* tipow for sale * Where a grocer was found to possess in his cellar a
quantity of unlabelled margarine the exposure of which without printed label is an
offence, it was held that he committed no offence, as ‘ exposed for sale * meant
‘ exposed to the view in the shop in the sight of the purchaser ' (f). Lawrence, J.,
in a later decision held that ‘ exposure ' did not mean that the article itself should
be exposed to view. It is sufficient exposure of the article if the packet containing
it is exhibited in the shop for sale (g).

Knowing any drug or medical preparation to have been adulterated : —

Upon a complaint under s. 6 of the Food and Drugs Act for selling tincture of opium
which was not of the * nature, substance or quality ’ of the article demanded by the
purchaser, it appeared that the tincture of opium sold by the defendant was deficient
in opium to the extent of one-third and in alcohol to the extent of nearly one-half as
compared with the standard prescribed by the British Pharmacopoeia, it was held
that the defendant was liable to be convicted, although the purchaser had not speci-
fically asked for the tincture of opium ' prepared according to the recipe in the
British Pharmacopoeia * (h). This case was followed in another case where a
purchaser went into a Chemist's shop and asked to be supplied with * mercury oint-
ment ’ and the chemist supplied him with an ointment containing a less proportion
of mercury than that prescribed by the formulary of the Pharmacopoeia, and it was
held that the vendor was rightly convicted (i).

276 . Whoever knowingly sells, or offers or exposes for sale,
sale of drug as a or issues from a dispensary for medicinal

different drug or pre- purposes, any drug or medical preparation,
pn ration. as a different drug or medical preparation,

shall be punished with imprisonment of either description for a
term which may extend to six months or with fine which may
extend to one thousand rupees, or with both.

This section punishes the sale of a drug as a different drug or medical prepara-
tion.

It is wider than the English law as H punishes 4 offer or exposure for sale/

To constitute an offence under s. 6 of the Food and Drugs Act, 1875, the
representation of the ‘ nature, substance and quality * of the article must be made
at the time of the sale. A prior false representation in this respect is no offence
within the Act, provided a true one is made at the time the sale actually takes place.

Procedure : — Not cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate, or Magistrate of the first or second class and may
be tried summarily.

For further commentary see notes under the last section.

277 . Whoever voluntarily corrupts or fouls the water of

„ _ any public spring or reservoir, so as to

ii /spring o^reservoir* render it less fit for the purpose for which
it is ordinarily used, shall be punished with
imprisonment of either description for a term which may extend

(f) Crane v. Lawrence, (1800) 25 Q. B. D. 162 (155).

(g) Wheat v. Brown, (1892) 1 Q. B. 418 (420, 421), explaining Crane v. Lawrence,
(1890) 25 Q. B. D. 152.

(h) White v. Bywater, (1897) 19 Q. B. D. 582

(i) Diehins v. Randerson, (1901) 1 K. B. 437.

470 THE INDIAN PENAL CODE [ CHAP, XIV

to three months, or with fine which thay extend to five hundred
rupees, or with both.

Voluntarily-— s. 39.

This section punishes a person for voluntarily fouling water of a public spring
or reservoir.

Procedure : — Cognizable — Summons — Bailable — Not compoundable —
Triable by any Magistrate and may be tried summarily. 1

Voluntarily corrupts or fouls water s— The words * corrupts or fouls *
mean some act which physically defiles or fouls the water (j).

It is no offence under this section to bathe in a tank not set apart by lawful
order for bathing purposes (k), unless the accused was aware that its water was
reserved for drinking purposes and bathing will necessarily foul it (1). Angling in
a tank has been held not to constitute an offence under this section in the absence
of evidence that bait of a foul kind was used (m) ; fishing with basket-nets in a
tank the waterof which was used for drinking purposes, the use of the baskets having
caused a slight disturbance of the mud and so rendered the water less fit than
usual for drinking has been held to constitute an offence under this section (n).
Cultivating paddy in the bed of a tank, the water of which was used by the public
for drinking purposes is an offence under this section as it causes damages to the
public by preventing the accumulation of water (o).

River : — This section does not apply to a public river or to the water flowing
in a continuous stream and accordingly where a dog-killer buried the carcass of a
dog in the bed of a public river, he was held to commit no offence (p).

Public spring or reservoir : — The words ' public spring or reservoir ’ used
in this section do not include a public river. It was held by the Calcutta High
Court that the strewing of branches in a river for fishing purposes is no offence under
this section (q). The term ‘ public spring * in this section does not include a con-
tinuous stream of water running along the bed of a river (r). The water of a rivulet
even though standing in pools does not constitute a * public spring ’ within the
meaning of this section (s).

In an indictment against a Gas Company for a nuisance in conveying the refuse
of Gas into a great public river whereby the fish are destroyed and the water is
rendered unfit for drink, etc., the question is for the Jury to determine whether the
special acts of the company complained of amount to a nuisance (t).

Prescription is no defence (u).

278. Whoever voluntarily vitiates the atmosphere in any
mf . . , . place so as to make it noxious to the health

noxious”®. heaith°. sp cre of persons in general dwelling or carrying

on business in the neighbourhood or passing

(j) Bhagi , (1000) 2 Bom. L. R. 1078 ; see Pandia Mahar f (1000) 13 C. P. I,. R.

02 .

(k) (1878) I Weir. 228.

(l) Mnthian, (1896) 1 Weir. 229.

(m) Srinivasa Naik, (1882) 1 Weir. 231.

(n) Punni Beshoyi, (1881) 1 Weir. 231.

(o) Ramatripati , (1881) 1 Weir. 229.

(p) Anthony , (1884) 1 Weir. 230.

(q) Hulodhar Poroe, (1877) 2 C. 383 ; Patha, (1868) Rat. Unrep. Cr. C. 14.

(r) Vitii Chohau , (1881) 4 M. 229.

(s) Hari Bapu , (1885) Rat. Unrep. Cr. C. 215.

SEC. 279] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 471

along a public way, sh^JJ be punished with fine which may extend
to five hundred rupees.

This section is directed against traders vitiating the atmosphere by producing
noxious and offensive smells.

Scope Throwing of a human skull in a highly offensive condition out of
malice into a private dwelling house does not warrant conviction under s. 278.
The section is directed against a public and not a private nuisance (v).

Procedure Not cognizable — Summons — Bailable — Not compoundable —
Triable by any magistrate, and may be tried summarily.

Voluntarily vitiates the atmosphere In order to constitute an offence
under this section it is not necessary that the alleged nuisance should produce smells
injurious to health ; it is sufficient if they be offensive to the senses (w).

To allow a large stack of bones to remain uncovered in the open for a long time
so as to become rotten and to emit a smell noxious to people living in or passing by
the vicinity is not an act which the bone-mill manager is entitled to do in carrying
on his trade in a reasonable way and by allowing such act to be don& he would be
guilty of committing a public nuisance (x).

The act of performing the offices of nature in front of the door-step of the
complainant is not an offence under this section (y).

279. Whoever drives any vehicle or rides, on any public
way in a manner so rash or negligent as to
ona l p«bScwfy 0r dding endanger human life, or to be likely to cause
hurt or injury to any other person, shall be
punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend
to one thousand rupees, or with both.

Hurt — s. 319. Injury — s. 44.

This section punishes rash driving or riding in a public way so as to endanger
life or likely to cause hurt or injury to other persons.

Maync in his valuable commentary says : “ Ss. 279-289 contain a series of
provisions by which mere negligence is made punishable, apart from any injury
actually done. It is plain that the essence of the offence consists in the possibility
of injury, and not in its actual occurrence, as well as the words * likely to cause
hurt or injury ’ or words of a similar nature. The occurrence of actual injury
meets with punishent under Ss. 337 and 338 ; though strangely enough, the actual
inflicting of hurt is liable to less punishment under s. 337 than the commission of the
same act would be if no hurt resulted M (z).

Procedure: — -Cognizable — Summons — Bailable — Not compoundable —
Triable by any magistrate, and may be tried summarily.

For the prosecution to prove : — It is incumbent on the prosecution to prove
not only that there was negligence on the part of the defendant, but that negligence

(t) Medley , (1834) 6 C, and P. 292.

(u) Blackburn v. Somers , (1879) 5 L. R. Ir. i ; Cross, (1812) 3 Camp. 224.

(v) Rahiman Mian, (1928) 10 P. L. T. 57 : A. I. R. (1929) P. 113.

(w) Berckefeld , (1900) 34 C. 73 : 5 C. L. 1. 40 : 5 Cr. L. J. 45, following Neil,
(1820) 2 C. and P. 485.

(x) Ibid.

(y) Mahadashet , (1884) Rat. Unrcp. Cr. C. 200.

(z) Mayne, 4 Criminal Law of India,’ 4th edition, p. 442.

472 THE INDIAN PENAL CODE [ CHAP. XIV

caused or materially contributed to the injury, if any happened, or was so likely to
cause injury as to be punishable under some particuI$V section of the Code where
none has happened. Where the facts are equally consistent with the guilt or
innocence of the accused the case ends in acquittal. This was so held in England in
a case where Earle, C. J., observed : “ A person is run over by a carriage or train
and there is no evidence that the accident arose from any carelessness on the part
of the driver, there is nothing to show that the vehicle ran over the man rather than
the man against the vehicle ” (a). So William, J., said in the above case : “ I wish to
add that there is another rule as to leaving evidence to jury which is of the greatest
importance, and that is, that where the evidence is equally consistent with either
negligence or no negligence, it is not competent to the Judge to leave to the
jury to find either alternative, but it must be taken as amounting to no proof at
all ” (b).

Lord Cairns in laying down the same principle in a leading case on ihe subject
said: “The Judge has a certain duty to discharge, and the jurors have another
and a different duty. The Judge has to say whether any facts have been established
by evidence from which negligence ought to be inferred. It is in my opinion of
the greatest importance in the administration of justice that these separate functions
should be maintained distinct. It would be a serious inroad on the province of the
jury, if in a case where there are facts from which negligence may be reasonably
inferred, the judge were to withdraw the case from the jury upon the ground that,
in his opinion, negligence ought not to be inferred ; and it would, on the other hand,
place in the hands of the jurors a power which might be exercised in the most
arbitrary manner, if they were at liberty to hold that negligence might be inferred
from any state of facts whatever” (c).

For defence to succeed In cases under this section the defence will gene-
rally be that the case was due to an accident, e.g that a horse suddenly got out of
control (d).

Negligence : — “ The definition of ‘negligence’ is the omitting to do something
which a reasonable man would do, or the doing of something which a reasonable
man would not do ” (e). “ Negligence is not an affirmative word ; it is the absence
of such care, skill and diligence as it was the duty of the person to bring to the
performance of the work which he is said not to have been performed ” (f). It was
pointed out in these cases, “ Each case must be judged in reference to the pre-
cautions, which, in respect to it, the ordinary experience of men has found to be
sufficient, though the use of special or extraordinary precautions might have pre-
vented the particular accident which happened.” Mukerjee, J., in deciding a case
under s. 304-A, I, P. C., where the petitioner ran over and killed two coolies who
were sleeping on the road followed the decision in Nidamartis case (g) and Idu
Btngs case (h) and following the English cases acquitted the accused (i).

(a) Cotton v. Wood, 8 C. B. N. S. 568 : 29 L. J. C. P. 383 ; 6 M. H. C. R. App. 3t.

(b) Ibid.

(c) Metropolitan Ry. Co. v. Jackson, 3 App. Cases 193 (197) : 6 M. H. C. R.
App. 31 (32).

(d) Hammack v. White, 11 C. B. (N. S.) 588 : 31 L. J. C. P. 129.

(e) Per Alderson, B., in Blyth v. Birmingham Water Works Co., (1866) 11 Ex
784 : 25 L. J. Ex. 212, followed by Brett, J., in Smith v. London and South Western
Ry. Co., (1870) L. R. C. P. 98 at 102.

(f) Per Willes, J.. in Grill General Iron Screw Collier Co., (1806) 35 L. J. C. P.
321 (330).

(g) (1872) 7 M. H. C. R. 119.

(h) (1881) 3 A. 776.

(i) Smith, (1925) 53 C. 333 : 30 C. W, N. 66.

SEC. 279] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 473

Criminal negligence— Error of judgment Error of judgment on the part

of a driver of a motor car dbes not constitute 4 reckless driving * (j).

1 drives any vehicle or rides on any public way 4 : If a man is driving
along a road, it is his duty not to do that which may injure another person whom he

meets on the road or his horse or his carriage.—; y -If a man is driving

on Salisbury Plain, and no other person is near him, he is at liberty to drive as fast
and as recklessly as he pleases. But if he secs another carriage coming to him*
immediately a duty arises not to drive in such a way as is likely to cause an injury
to that other carriage. So, too, if a man is driving along a street in a town, a similar
duty not to drive carelessly arises out of contiguity or neighbourhood " (k).
Suppose a gentleman should drive a buggy in a rash and negligent manner, or
furiously along a narrow crowded street. He might know that he was likely to kill
some person, but he might not intend to kill any one or to cause bodily injury
to any one. In such a case, if he should cause death, I apprehend, he would be
guilty of culpable homicide not amounting to murder, unless it should be found
as a fact, that he knew that his act was so imminently dangerous that it must in all
probability cause death or such bodily injury as to bring the case within the 4th
clause oi s. 330 ” (1).

If the driver of a conveyance use all reasonable care and diligence and an
accident happen through some chance which he could not foresee or avoid, he is not
held liable for the result of such accident. The fact that streets are unusually
crowded from any public procession or other cause, instead of excusing a driver,
when proceeding at his ordinary pace and with ordinary care, require him to be
particularly cautious and may tend to render him criminally answerable for any
accidents ensuing from driving at a rate and with those precautions, which he might
have ordinarily observed (m). Where a person is driving on the wrong side of the
road and thereby collides with another car coming from the opposite direction, he
must satisfy the Court that he was not rash or negligent in driving the car on to the
wrong side of the road. The Bombay High Court held that the accused was
rightly convicted under this section (n).

In order to constitute an offence under s. 279, it is not necessary that any person
should be present when an alleged rash driving is said to have taken place (o).

Driving a cart the bullocks of which have got no nose-strings does not neces-
sarily constitute rash driving (p).

Rash driving must be on a public way -The chief characteristic of a public
way is that over which all persons have an equal right to pass and such way must be
distinguished from a way to a private house, or from the benefit of a particular
person only (q).

Master if liable for the rash driving of bis servant Dealing
with the liability of master together with his servant in a driving case, the Madras
High Court observed : "We are not prepared to say that only the immediate
agent could be guilty. It is perfectly easy to conceive of cases in which the master
of the servant would be at least as much a principal as the engineer in R . v. Lowe ,
(3 C. and K. 123) and as the co-racing omnibus driver in Reg. v. Swindell &

(j) H. B. Spiers V. Zahirttddin . (1931) 59 C. 113.

(k) , Per Lord Esher, M. R. in Le Lievrc V. Gould , (1893) l Q, B. 491 (497).

(l) Per Sir Barnes Peacock, C. J., in Gorachand Gope, R. L. R. (Supp. Vol.) 443

(F. B.).

(m) William Murray , (1852) 5 Cox. C. C. 509.

(n) Baba Santu Jadav , (1920) 23 Bom. L. R. 358.

(o) Hurmusji Nowroji , (1894) 19 B. 715.

(p) Ganpati Saluke, (1869) Rat. Unrep. Cr. C. 19.

(q) l Hawk, P. C, c. 70s. 1.

474

THE INDIAN PENAL CODE

[CHAP, XIV

Osborne, (2 C. & K. 230). . . It would fee a dangerous doctrine to hold the

master inside a carriage entirely guiltless if his directions precede the rash and neg-
ligent act. The High Court is not at all prepared, too, to say that the existence of
contributory negligence would be a complete ^defence whereas in English law it
would be so to an action ” (r). The actual driver and not the owner of a carriage
is liable under this section in case of a collision and injury to another arising out
of rash driving (s).

1 so rash or negligent as to endanger human life or cause hurt or injury
to another person 9 This does not mean that the hurt or injury should have
been caused. The Bombay High Court held in a case where the accused was riding
his horse in a rash or negligent manner, it was competent to the magistrate to take
into his consideration the probability of persons using that road being placed in
danger by the act of the accused and upheld the conviction of the accused under
this section (t).

It is the duty of the prosecution to show that there was rashness or negligence
on the part of the rider or driver. It cannot be inferred from the mere wet of a
person having been run over (u).

A District Council, acting under the Public Health Act, 1875 (38 and 39 Viet.,
c. 55) employed a contractor to make good a highway which was used by the public
but had not become reparable by the inhabitants at large. The work was to be
executed by the District Council and in carrying out the work the contractor negli-
gently left on road a heap of soil and grass unlighted and unprotected, and a person
walking on the road after dark fell over the heap, held, the District Council was
liable for the negligent acts which they had permitted (v).

Contributory negligence Although contributory negligence is a good
defence in civil law, this doctrine is not, however, a defence in criminal cases (w).
The Madras High Court in a case under s. 338 held that contributory negligence of
others is no defence and the law as to contributory negligence has no application.
This doctrine of common law has received the most absurd extension, and a very
pertinent observation of Blackburn, J., shows that if the question were the same
a man could not be convicted of murder for abetting suicide (x).

Special law s— Where there is special law the conviction should be under
that law and not under the Indian Penal Code (y).

Driver of a motor-lorry if convicted under s. 5 of the Motor Vehicles Act (VIII
of 1914) and while such conviction is in force cannot be prosecuted under this sec-
tion, but he may be tried under s. 338 or s. 325 for the consequences of such rash
driving (z). For a conviction under s. 5 of the Motor Vehicles Act, 4 criminal negli-
gence * must be proved (a).

(r) 0 M. H. C. R. (1871) App. xxxiii.

(s) Larrymore v. Pernendo Dev Rai, (1870) 14 W. R. (Cr.) 32.

(t) Hermusji Nowroji, (1894) 19 B. 715.

(u) Pillagan , (1894) 1 Weir. 232.

(v) Penny v. Wimbledon , (1898) 2 Q. B. 212, following Hardakerv . Idle District
Council, (1896) 1 Q. B. 335 and Pickard V. Smith, (1801) 10 C. B. (N. S.) 47(L*

(w) Anon, C M. H. C. App. 31 (32).

(x) Andn, 6 M. H. C. R. 31, following Haines, 2 C. and K. 230.

(y) H C. Bayne, (1906) 8 Bom. L. R. 414. See also the Bombay Motor Vehicles
Act, (Bom. Act II of 1904) and the Indian Motor Vehicles Act (Act No VIII of 1914)
extend to Calcutta (including the suburbs) and the Municipality of Howrah by Noti-
fication No. 4095 P. dated the 1st April 1925.

(z) Guy Narain , (1927) 26 A. L. J. 160.

(a) H . B , Spier $ v. Johiruddin t (1931) 59 C. 113.

SECS. 280-81] OFFENCES AFFECTING THE PUB. HEALTH, ETC. 475

280. Whoever navigates any vessel in a manner so rash

or negligent as to endanger human life, or
vessel? 1 navlgat,on oI to be likely to cause hurt or injury to any
other person, shall be punished with impri-
sonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees,
or with both.

Vessel—s. 48. Rash or negligent — s. 279.

Endanger human life — s. 279. Hurt — s. 319. Injury — s. 44.

This section punishes ' rash navigation of a vessel/ This section extends
the provision of the last section to a water-way, but is not restricted to ‘ public
navigable water/

Procedure : —Cognizable —Summons — Bailable —Not compoundablc — T riable
by Presidency Magistrate or Magistrate of the first or second class and may be
tried summarily.

To support a conviction under this section there must be proof of rashness or
negligence which endangers human life or is likely to cause hurt or injury to any
person (b).

Rash or negligent See commentary under s. 279. In order that the defend-
ant may be held liable, the negligence must be the causa causans or the proximate
cause of the injury and not merely a causa sine qua non (c). To make the captain of
a steam vessel guilty of manslaughter, in causing a person to be drowned, by run-
ning down a boat, the prosecutor must show some acts done by the captain ; and a
mere omission on his part, in not doing the whole of his duty is not sufficient (d).
This case was followed by the Calcutta High Court in Kamdar Ali Serang's case (e).

Where a vessel is sunk in a public navigable river it is the duty of the owner
of the vessel so long as he continues possession and control of the vessel to take
proper precautions to prevent injury to other vessels by striking against them (f).

281. Whoever exhibits any false light, mark or buoy, intend-

ing or knowing it to be likely that such
liKh^m-irk or buoy fa SC exhibition will mislead any navigator, shall
° y be punished with imprisonment of either

description for a term which may extend to seven years, or with
fine, or with both.

This section punishes the intentional misleading of a navigator by exhibition
of false light, mark or buoy. If such act is not intentional but negligent it will not
be an offence under this section but will fall within s. 290.

Procedure : — Cognizable — Warrant— Bailable— Not compoundable— Triable
by Court of Session.

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows

That you, on or about the day of , at ,

exhibited a false light (or mark or buoy to— specify the vessel) when the said vessel

(b) Kamdar Ali Sevang, (1911) 15 C. W. N. 835 : 04 C. L. J. 655 : 11 I. C. 130.

(c) Bailiff of Romney Marsh v. Trinity House, (1870) L. R. 5 Ex. 204 (208).

(d) Green, (1835) 7 C. and P. 155.

(e) (1911) 15 C. W. N. 835 : 14 C. L. J. 656 : 11 1. C. 130.

(f) White v. Crisp, (1854) 10 Ex. R. 312.

476 THE INDIAN PENAL CODE [ CHAP. XIV

was sailing at ( mention the place ) intending (or knowing it to be likely)

that the exhibition of the said false light (mark or buoy) would mislead the master

or other navigating officer of Ss... (or a navigator) and thereby

committed an offence punishable under s. 281 of the Indian Penal Code and within
the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

282. Whoever knowingly or negligently conveys, or causes
Cuuvr.ying person by to be conveyed for hire, any person by water

water for hire in unsafe in any vessel, when that vessel is in such a
«.r oy ci loaded vcfcsd state or so loaded as to endanger the life of

that person, shall be punished with imprisonment of either des-
cription for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.

This section punishes the conveying of a passenger for hire in unsafe or over-
loaded vessels.

Procedure s — Cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

* whoever knowingly or negligently conveys or causes to be conveyed
for hire* : —Where there was no evidence to show that the accused intentionally
omitted to provide the ferry-boat with what he knew to be necessary for safe navi-
gation, the conviction under s. 280 read with s. 109 could not be supported (g).

Where an accused, a ferry-man, was carrying certain persons in a donga which
was in a bad condition and where the prisoner could not be held to have done so
knowing that deaths may result, it was held that the accused could not be convicted
of culpable homicide not amounting to murder, i.e., under s. 299, but the proper
section to convict him was s. 282 (h).

Boatmen who ply unseaworthy vessels whereby lives of passengers are en-
dangered should be charged under s. 282 and not under s. 336 of the Indian Penal
Code (i).

283. Whoever, by doing any act, or by omitting to take
Danger or obstruction order with any property in his possession

ip public way or line of or under his charge, causes clanger, ob-
navigation. struction or injury to any person in any

public way or public line of navigation, shall be punished with
fine which may extend to two hundred rupees.

Property — s. 22. Injury — s. 44. Possession — s. 27.

Mayne in his valuable commentary observes : “ The offence constituted
by s. 283 differs from that defined by s. 268 in this that it is not necessary to show
that the act complained of is a public nuisance. It is sufficient that it causes danger,
obstruction, or injury to any person in any public way or public line of navigation.
Of course, an act which causes an injury, etc., to every one, must necessarily be an
injury to any one, but not vice versa. The liability results from the consequences
to the individual harmed not from any impropriety in the act itself ” (j).

(«) Sakaram Govind, (1870) Rat. Unrep. Cr. C. 35

(h) Maganee Behara, (1809) 11 W. R. (Cr.) 3.

(i) Khoda Jogta. (1864) 1 B. H. C. R. (Cr. C.) 137

(j) Mayne "Criminal Law of India " 3rd Edition.

(k) Cross, (1818) 3 Camp. 224.

vSl£C. 288 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 477

Procedure : --Cognizable-- Summons— Bailable— Not compoundable— Triable
by Presidency Magistrate or Magistrate of the first or second class.

* causes danger, obstruction or injury to any person in any public way
or public of na vigation (i) * * * * * * * 9 : — -Lord Ellenhorough, C. J., said : “ A stage-coach
may set down or take up passengers in the street, this being necessary for public
convenience ; but it must be done in a reasonable time ; and private premises must
be procured for the coach to stop in during the interval between the end of one
journey and the commencement of another " (k). Where a waggoner occupied one
side of a public street, in a city before his warehouse, in loading and unloading his
waggons for several hours at a time, both day and night, and having one waggon' at
least usually standing before his warehouse so that no carriage could pass on that
side of the way and sometimes even foot-passengers were incommoded by heavy
goods lying on the ground on the same side for loading, it was held to be an [ob-
struction to a high way and public nuisance and a plea of the defence that there was
room for two carriages to pass on the opposite side of the road was not maintained (I).
Where the two accused, manager and servant respectively of a toy-shop exhibited
in the windows of the shop, overlooking the public road, certain clock-work toys
during the Diwali festival and the result was that thousands of people collected on
the road to witness the toys and there was great obstruction and danger caused to
those using that road, the Bombay High Court held that the efficient cause of the
nuisance was the act of the accused and upheld the conviction under this section
and s. 144 (m).

The unauthorised placing of telegraph posts and wires along a road, although
not on the metalled part, has been held to be an ' obstruction * (n).

There are some acts which though they cause a temporary obstruction to the
highway, such as, the stoppage of carts to unload goods into a warehouse, or the
erection of a hoarding to protect the public while buildings are being repaired have
been held to be lawful (o). But a private person cannot break up the highway to
lay gas or water pipes for his house (p). Similarly it has been held that the lay-
ing down of a tramway along a public road is an obstruction (q).

This section is inapplicable in the absence of evidence that danger, obstruction

or injury was caused to any particular person The public is entitled

to the use of the full width of the public street, however wide it may be. A person
who widened the pials in front of his house by about three feet and thereby
encroached upon the street commits an offence punishable under s. 290 if not under
this section (r).

' Where the evidence showed, that an obstruction placed on a road must neces-
sarily prevent vehicles from passing at all and foot passengers from passing without
inconvenience, the Madras High Court held that the accused was guilty under
s. 290 as it was not necessary to expressly prove that any specific individual was
actually obstructed — it was enough to infer that persons were obstructed (s).

In an earlier English decision the indictment was that the defendant who was
bound to repair a house that was standing ruinous on a highway and the verdict

(i) Russel (1806) 0 East, 427. ~ ~

(m) Noor Muhammad Suleman , (1911) 36 B. 308: 13 Bom. L. R. 209, see
Lyons Sons and Co . v. Gullier , (1914) 1 Ch. 031.

(n) The United Kingdom Electric Telegraph Co., (1862) 9 Cox. 137; Wright ,

3 B. and Ad. 681 ; Elwooa v. Bullock , 6 Q. B. 383.

(o) Herring v. Metropolitan Board of Works , 34 L. J. M. C. 224.

(p) Longton Gas Co., 29 L. J. M. C. 118.

(q) Train, 31 L, J. M, C. 169.

(r) Virappa Chetti . (1896) 20 M. 433.

(s) Re. K. Venhappa, (1913) 38 M. 306 , where Khadr Moidin, (1882) 4 M. 236
Was not followed and Virappa Chetti , (1897) 20 M. 433, was commented upon,

478

THE INDIAN PENAL CODE

[CHAP. XIV

of the Jury was tfiat he was a tenant-at-will who certainly was not bound to repair
as regards himself and his lessor, the Court held that the finding that the defendant
was bound to repair was “ only an idle allegation ; for it is not only charged, but
found that the defendant was occupiervand in that respect he is answerable to the
public; for the house was a nuisance as it stood, and the continuing the house in
that condition is continuing the nuisance. And as the danger is the matter that
concerns the public, the public are to look to the occupier and not to the estate,
which is not material in such case to the public " (t).

Way used by a section of the public if a public way Mukerji, J., sitting
singly, held, following Shamsoondar v. Manuram (u) and Fattehyab Khan v.
Mamood Yusufs case (v), that a pathway which is used by the villagers and by the
inhabitants of some other villages but not by the public in general, is not a public
road within the meaning of this section. His Lordship further held that the
dedication to the public may be for a limited purpose but there can be no such
thing in law as a public right of way by dedication to only a section of* the
public (w).

Omitting to take order : — It is common law duty on the owner of a vacant
piece of land not to continue it as a private nuisance (x).

Injury The term is not confined to injury to the person only but includes
any harm illegally caused to the property of any persons (y).

Persons placing a bamboo-stockade across a tidal navigable river for the purpose
of fishing although leaving in such stockade a narrow opening for boats to pass may
not be guilty under this section which contemplates an injury to some particular
person, but commit an offence under s. 268, and are punishable under s. 290 (z).

Where obstruction was caused to a public way by the erection of a hut and
not by the exposing of goods for sale in the said hut by the accused who had
rented it from the person who had raised it, the Calcutta High Court held that the
accused could not be held guilty under this section (a).

284. Whoever does, with any poisonous substance, any
Negligent conduct act in a manner so rash or negligent as to

with respect to poison- endanger human life, or to be likely to cause

ous substance. i_ ... ■ •

hurt or injury to any person,
or knowingly or negligently omits to take such order with
any poisonous substance in his possession as is sufficient to guard
against probable danger to human life from such poisonous sub-
stance,

shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine, which
may extend to one thousand rupees, or with both.

Act — s. 32. Injury — •*. 44.

Rash or negligent — s. 279. To take such order — s. 283.

(t) Watts, 1 Salk. 356.

(n) (1876) 25 W. R. 233.

(v) (1887) 9 A. 434.

(w) Prannath Kmtdu, (1929) 33 C. W. N. 915 : A. I. R. (1930) C. 280, see Eng- •
lish cases referred to in this case.

(x) Attorney General v. Tod Heatley, (1897) 1 Ch. 560 (567), following Walts, 1
Salk. 356.

(y) Nathe Lalla, (1868) 5 Bom. H. C. (Cr. C.) 67.

(z) Utnesh ChandraKar, (1887) 14 C. 656.

(a) Narain Adhikary, (1904) 8 C, W. N. 309.

SEC. 285] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 479

Endanger human life — s. 279. Possession— s. 27.

Hurt— s. 319.

This section punishes negligent conduct with regard to poisonous substance,
the object being to protect people from the danger, hurt or injury attendant on sub-
stances which are dangerous.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable

Triable by Presidency Magistrate or Magistrate of the first or second class.

Negligent conduct with respect to poisonous substance : — It is not neces-
sary that the negligent omission under this section should be followed by dangerous
consequences. Where the accused, a police-sergeant at Ludhiana, took over a desk
containing poisonous powders and other powders which might be easily mistaken
one for the other, without taking any precaution whatever to guard against this
nuisance of the poison, and the only order he took with the poison subsequently
was to hand over the key of the receptacle in which the poisonous powders were
kept to a subsordinate official, who by mistake issued some of the poisonous pow-
ders to a Deputy-Inspector suffering from fever, who took one of the powders
and died, it was held that the accused though not guilty of murder was guilty of
an offence under this section (b).

285. Whoever does, with fire or any combustible matter,
Negligent conduct any act so rashly or negligently as to en-
with respect to fire or danger human life, or to be likely to cause
combustible matter. h ur t or injury to any other person,

or knowingly or negligently omits to take such order with
any fire or any combustible matter in his possession as is sufficient
to guard against any probable danger to human life from such
fire or combustible matter,

shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

This section extends the provisions of the last section to fire or any combustible
matter.

Analogous law : — In England under the Town Police Clauses Act (which
applies to Urban District under the Public Health Act, 1875) every person who
in any street discharges any fire-works is punishable with forty shillings or fourteen
days' imprisonment provided such nuisance causes obstruction, annoyance or danger
to residents or passengers.

Procedure : — Cognizable— Summons — Bailable — Not compoundable — Triable
by any Magistrate.

Injury : — The term ‘ injury ' is wide enough to include any harm illegally
caused to the property of any other person. It is not confined to injury to the
person only (c). where the accused, who in a marriage procession let off fire-
works while passing by the complainant's thatched house with the result that it
caught fire, it was held that he committed an offence under this section (d).

Letting off fire baloons is no offence (e).

(b) H ossein Beg, (1882) P. R. No. 16 of 1882.

(c) Natha Lalla, (1868) 6 Bom. H. C. R. 67, followed in Krishna, (1878) R. at
Unrep. Cr C. 134.

(d) NgaPo Gala. (1899) P. J. L. B. 628.

(e) Nga Ya Po, (1886) P. J. L. B. 337 ; Nga Cho, (1887) P. J. L. B, 41 1 ; Ngwka.
(1903) U. B. R. (P. C.) 7.

480

THE INDIAN PENAL CODE

[CHAP. XIV

286 . Whoever does, with any explosive substance, any
Negligent conduct act so rashly or negligently as to endanger
with respect to expio- human life, or to be likely to cause hurt or
sive substance. injury to any person,

or knowingly or negligently omits to take such order with
any expolsive substance in his possession as is sufficient to guard
against any probable danger to human life from that substance,

shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

This section and the last are the extension of the provisions of s. 284. This
section deals with explosive substance.

Scope : — The first part of s. 286 is not confined to cases where the explosive
is in the possession of the accused at the time of the injury (f).

Procedure Cognizable — Summons — Bailable— Not compoundable — Triable
by any magistrate — Triable summarily.

Explosive substance : — This section does not define ‘ explosive substance *
which is defined by the Explosives Act (Act IV of 1884) as amended by Act VI of
1908, s. 2.

A revolver is not an explosive substance within the meaning of this section (g).

The causing of hurt by negligence in the use of a gun would fall within the
purview of s. 337 and not under this section. To sustain a conviction under this
section it is necessary for the prosecution to prove affirmatively that the accused has
been guilty of culpable rashness or negligence (h).

* endanger human life * : — In a case where a person was indicted of man-
slaughter in consequence of a rocket having exploded in his shop and the accused
having set fire to a place where the deceased was, Cockburn, C. J., said : “ The
prisoner kept a quantity of fire-works in his house, but that did not alone cause the
fire by which the death was occasioned. It was the superadded negligence of some
one else that caused it. Had the death proceeded from the natural consequence of
this unlawful keeping of the fire-works, as for instance, if from the prisoner's
negligent keeping of them a rocket had gone off by spontaneous combustion, and so
caused the death, the conviction might, I think, have been maintained. But
here the death was caused by the defendant, plus the act of some one else (i).

C having returned to his house after dawn from watching his crops at night
with a loaded gun and, finding his door locked, placed his gun loaded with the
hammer down on the cap, on a cot outside his house and went for a short time to a
neighbouring house. A the child of a neighbour, four years old, was killed by the
gun exploding ; the Madras High Court held that the accused could not be convicted
under this section (j).

‘knowingly or negligently* j— The word * knowingly * is evidently used here
advisedly and the word * intentionally * advisedly not used. Whatever distinction
there may be between 4 knowingly or negligently ’ and 4 rashly or negligently * —

(f) Anantnarayana Pattar, (1898) 1 Weir. 230,

(g) Kasiya Pillai, (1880) 1 Weir. 230.

(h) Abdus Sattar , 28 A. 464.

(i) Bennett, (1808) 28 L. J. M. C, 28.

(j) Chenchugada, (1880) 8 M. 421,

SEC. 287 ] OFFENCES AFFECTING Tf!E PUBLIC HEALTH, ETC. 481

and it^ must be assumed that the former is purposely used in this part of the section
while 4 rashly ’ is used in the first clause — consciousness is involved in both, while
intention is not (k).

287. Whoever does, with any machinery, any act so rashly
Negligent conduct or negligently as to endanger human life
with respect to or to be likely to cause hurt or injury to any

machinery. .1 _

y other person,

or knowingly or negligently omits to take such order with
any machinery in his possession or under his care as is sufficient
to guard against any probable danger to human life from such
machinery,

shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

Act — s. 32. Injury — s. 44.

Rashly or negligently — s. 279. Knowingly or negligently — s, 286.

Endanger human life — s. 279. Omits to take such order — s. 283.

Hurt — s. 319. Possession — s. 27.

This section like Ss. 284, 285 and 286, deals with the same offence committed
with different agency. This section punishes negligent conduct with respect to
machinery. The words in clause (2) ‘or under his care * is an addition — these words
include all mechanics, e.g. t the engineer, firemen, etc., and these words are more
comprehensive than * under his charge * occurring in s. 283.

Scope : — This section docs not say ‘ any possible danger.’ The owner is
not required to provide perfect security against every possibility of danger, however
remote. He ought to take reasonable precautions and so much care as is sufficient
to guard against such danger as can be expected within the bounds of probability (1).

Procedure : — Not cognizable Summons — Bailable Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first or second class — Triable
summarily.

Negligent conduct with respect to machinery : — Various acts in England
require proper precautions with regard to machinery, e.g., the Factories Act (41 Viet.,
c. 16), the Mines Regulation Act (35 and 36 Viet., c. 76), the Public Health Act,
1875 (38 and 39 Viet., c. 55), and it is no defence to urge that a competent person
was employed (m).

Machinery is dangerous and under the Factory and Workshop Act, 1878
[41 and 42 Viet., c. 6, s. 5, sub-sec. 3, amended by 54 and 55 Viet., c. 75, s. 6 (2)] it
is necessary to fence the dangerous parts of a machinery. So Willes, J., said:
“ It seems to me that machinery or parts of machinery is and are dangerous if in the
ordinary course of human affairs danger may be reasonably anticipated from the
use of them without protection. No doubt it would be impossible to say that be-
cause an accident had happened once, therefore the machinery was dangerous.
On the other hand, it is equally out of the question to say that machinery cannot be

(k) Ibid, p. 422, see Nidamavti Nagabhusanav , 7 M. H. C. R. 199,

(l) Mulraj Dhir , A, I, R. (1930) Pat. 607,

(in) Gray v. Pullen, 6 M. and S. 970,

37

482

THE INDIAN PENAL CODE

[CHAP. XIV

dangerous unless it is so in the course of careful working. In considering whether
machinery is dangerous, the contingency of carelessness on the part of the work-
men in charge of it, and the frequency with which that contingency is likely to
arise are matters that must be taken into consideration. It is entirely a question
of degree” (n).

It has been held that if an owner of machinery compels his servants to work
it knowing it unsafe, the fact that he has employed a competent man is no defence.
But when the owner employs a competent man to work it and leaves him unfettered,
the owner cannot be held criminally responsible for any accident due to the errors
of his employee (o).

288. Whoever, in pulling down or repairing any building,

v . , knowingly or negligently omits to take

with ^respect to pulling such order with that building as is sufficient
f n °« n or rcpairing build ' to guard against any probable danger to
’ w ' human life from the fall of that building

or of any part thereof, shall be punished with imprisonment of
either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with
both.

Knowingly or negligently — s. 286.

This section punishes negligent conduct with respect to pulling down or repair-
ing buildings.

Procedure : — Not cognizable — Summons — Bailable — Not compoundable

Triable by Presidency Magistrate or Magistrate of the first or second class— Triable
summarily.

Negligent conduct with respect to pulling down or repairing build*
ings Such negligent conduct is only punishable when there is a probable danger
to human life therefrom. Liability does not depend upon annoyance or inconve-
nience. As Vaugan Williams, J., remarked : “ It frequently happens that the
owners or occupiers of land, cause in the execution of lawful works in the ordinary
user of land a considerable amount of temporary annoyance to their neighbours ;
but they are not necessarily on that account held to be guilty of causing an unlawful
nuisance. The business of life could not be carried on if it were so. For instance,
a man who pulls down his house for the purpose of building a new one, no doubt
causes considerable inconvenience to his next-door neighbour during the process
of demolition ; but he is not responsible as for a nuisance if he uses all reasonable
skill and care to avoid annoyance to his neighbour by the work of demolition. Nor
is he liable to an action even though the noise and dust and the consequent annoyance
to such would constitute a nuisance if the same, instead of being created for the
purpose of the demolition of the house, had been created in sheer wantonness, or
in the execution of works for a purpose involving a permanent continuance of the
noise and dust. For the law, in judging what constitutes a nuisance, does take into
consideration both' the object and duration of that which is said to constitute the
nuisance ” (p).

(n) Hindle v. Birtwistle , 1897) 1 Q. B. 192 (195),

(o) Kanhaya Lai, (1906) P. R. No. 8 of 1900 : 4 Cr. L. J. 279.

(p) Harrison Southwark and Vauhall Water Co,, (1891) 2 Ch. 409, (413, 414),

following Ball v. Bay, L R. 8 Ch. 407. f

SEC. 289 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 483

289. Whoever knowingly or negljgently omits to take such
order with any animal in his posession as is
wifhfSrt to anirnaL* sufficient to guard against any probable
danger to human life, or any probable danger
of grievous hurt from such animal, shall be punished with impri-
sonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees,
or with both.

Knowingly or negligently — s. 286. Omits to take such order — s. 283.

Animal — s. 47. Possession — s. 27. Grievous hurt — s. 320.

This section deals with the improper or careless management of animals.

Procedure : — Cognizable — Summons — Bailable — Not compoundable — Triable
by any Magistrate — Triable summarily.

The prosecution must prove in the affirmative that the accused knowingly
or negligently omitted to take such order with the animal as was sufficient to guard
against probable danger to human life or probable danger of grievous hurt from such
animal (q).

Scope: — This section does not refer to savage animals alone, but to any
animal ; and it is quite possible that a pony running away through a crowded bazar
would create a most probable danger to the lives of men, women and children
walking on the road (r).

The essential ingredient of the offence under this section is that there should be
a probable danger to human life or limb from the negligence shown to human life
or limb from the negligence shown in the custody of the animal (s).

Negligent conduct with regard to animals In the case of a horse run-
ning away and injuring the plaintiff, Earle, C. J. f said: “The plaintiff is not
entitled to have his case submitted to the jury, unless he gives some affirmative
evidence of negligence in the defendant. The negligence imputed here is either
the unskilful management of the horse, or imprudence in taking a vicious horse
into the public street. ^ The evidence is that the defendant was riding the horse
at a walk when the animal became restive, and though the defendant did all he
could, he was overpowered and the horse ran on to the pavement, and killed the
husband of the plaintiff. 1 can see here no affirmative evidence whatever of any
want of skill on the part of the defendant. Then is there any evidence of a culpa-
ble want of prudence in bringing the horse into a public street ? I can see none.
The horse was bought the day before, and the defendant was out trying his new
purchase himseif. It is said that this itself is negligence, and that he ought to have
ascertained the temper of the horse before he tried it. But I do not think so.
There is not the slightest evidence that the defendant had any knowledge whatever
of the vicious character of the horse, and he must be presumed, therefore, to have
been entirely ignorant of jt. And I do not think that riding a horse, of which a
man himself has no experience, in a public street is sufficient evidence on which
to rest an action for negligence ” (t). Where the horse was being led by a syce and
broke away from him being frightened by a passing bogey, no negligence could be
attributed to the owner and he could not be convicted under this section (u).

(q) Mahomed Sadia , (1904) 1 A. L. J. 005 (000).

(r) Chand Mortal, (1072) 19 W. R. 1.

(s) Sfiibharam Ayodftyaprasad , (1910) 18 Bom. L. R. 082.

\(t) Hammock v. White , , 31 L. J. C. P. 129 : 11 C. B. N. St- 588.

- (u) Brojonarayan PuWdj, (1805) 2 \V. R. (Cr.) 51 ; Mozuffar Khalifa, (1872) 9

B. L. R. (App.) xxxvi.

484

THE INDIAN PENAL CODE

[CHAP. XIV

Where the accused, a horse-keeper in the employ of the complainant, harnessed his
master's horse and put him in his master’s carriage and then went away leaving
the horse and carriage standing on the road of his master’s compound, held , he was
guilty under this section (v).

‘probable danger to human life or any probable danger of grievous
hurt * ’ The elephants and bears do not belong to a class which, according to the
experience of mankind, is not dangerous to man and, therefore, a positive duty is
cast upon the owners of such wild animals to protect the public against the mis-
chief from such animals (w).

Where the injury was caused by a savage monkey, Lord Denman said :
“ The conclusion to be drawn from an examination of all the authorities appears
to be this, that a person keeping a mischievous animal, with knowledge of its
propensities, is bound to keep it secure at his peril ; and that if it does mischief,
negligence is presumed without express averment ” (x).

“ There is a difference between beasts that are fearae nature , as lions and
tigers, which a man must always keep up at his peril ; and beasts that are mansue -
lae nature , and break through the tameness of their nature, such as oxen and horses.
In the latter case an action lies, if the owner has had notice of the quality of the
beast ; in the former case an action lies without such notice ” (y). Where an ani-
mal, in respect of which the offence is charged, is of a kind which is domesticated
and is usually allowed to go at large without special precautions, some evidence
must be given of the existence of an abnormally vicious disposition (z). A person
who keeps an animal fearae nature or an animal (dog) known to be savage is an-
swerable in damages for any harm done by the animal even though the immediate
cause of the injury is the intervening voluntary act of a third person (a).

To sustain a charge under this section there should be evidence not only of
negligence but also that such negligence would probably lead to danger to human
life or to grievous hurt (b).

No action would lie if it could be shown that the animal was justifiably kept
for the prupose of self-defence. So where a man got into the garden of another at
night and was there injured by a dog which was kept for the protection of the garden,
and was tied up all day, but was let loose at night, Lord Kenyon said : “ That
every man had a right to keep a dog for the protection of his garden or house ; that
the injuiy which this action was calculated to redress was, where an animal known
to be mischievous was suffered to let go at large, and the injury therefrom arose
from the fault of the owner in not securing such animal, so as not to endanger or
injure the public ; that here the animal had been properly let loose and the injury
had arisen from the plaintiff’s garden after it had been shut up ” (c). But although
a person has a right to keep a dog to protect his property he must not place it in
the open approaches to his house so as to injure persons lawfully coming to the
house (d). Where there was nothing to show that the buffalo was of a savage
disposition and the accused’s buffalo injured the complainant’s buffalo, it was held
that the accused could not be convicted under this section (e). The mere fact that a

<vi Natha Reva, (1881) Hat! Unrep Cr. C. las!

(wj Filburn v. People's Palace and Aqaarim, (180rt) 25 Q. B; D. 208; Besozzi
^ v. Harris , (1858) l F. and F. 92.

*, v (x) May v. Burdett , 9 Q. B. 101.

(y) Huggins, 2 Ld. Ray 1574.

(z) (1880) 1 Weir. 238.

(a) Baker v. Snell , (1908) 2 K. B. 825; Lowery v. Walker , (19J1) A. C. 10.

(b) 3 M. H. C. R. (1807) App. 23.

(c) Brock v. Copeland, (17Q4) 1 Esp. 203. ^

(d) Per Tindal, C* J. f in Sarch v. Blackburn, (1830} M. and M. 50o* see iflao
Bluchman v. Simmons, (1827) 3 C. and P. 138.

(e) Pandu, (1884) Rat. Unrep. Cr. C. 197. *

SEC. 290] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 485

rope tied to a bullock, when violently strained, broke, affords no proof of negli-
gence (f). Where the accused’s bullock escaped from the herd and went into the
hospital and ate up some clothes belonging to the hospital assistant, it being found
that the owner had no negligence, his conviction under this section was set aside (g).

290. Whoever commits a public nuisance in any case not
Punishment for public otherwise punishable by this Code, shall be

nuisance in cases not punished with fine which may extend to two
otherwise provided for. hundred rupeeS .

Scope : — The annoyance of a few residents of a single house is not sufficient
to constitute a public nuisance as contemplated by s. 290. It is not suffi-
cient proof under that section to say that the complainant and a few of his tenants
represent the people in general who occupy property in the vicinity, there being
no other people dwelling within unpleasant range (h). Suhrwardy, J., agreed with
Jack, J., with some hesitation as in his opinion the evidence fell short of
establishing an indictable nuisance (i).

This section provides punishment for public nuisance which does not come
within the purview of any specific section of the Code. But the nuisance in order
to be punishable under this section must be * public nuisance * as defined in
s. 268, supra.

See notes under s. 268.

Procedure : — Non-cognizablc — Summons — Bailable — Not compoundable —
Triable by any Magistrate — Triable summarily.

In order to sustain conviction under this section, it must be proved that injury,
danger or annoyance has been caused either in regard to the enjoyment of property
or the exercise of a public right on the part of a portion of the community or of any
particular class of people (j).

JoinNowner s — A joint-owner is responsible in law for nuisance caused by
his property (k).

Punishment s — The Bombay High Court has held that imprisonment in de-
fault of fine must be simple and not rigorous (1). But the Madras High Court has
held that a sentence of rigorous imprisonment in default of payment of fine under
this section is legal (m).

Alteration of charge : — Where the accused was originally charged under
s. 30 of the Police Act but the trying Magistrate finding him guilty convicted him
under this section without giving the accused an opportunity to meet the charge,
held that the conviction must be set aside (n).

Conviction of an accused for a lesser offence than the one charged

Under s. 237, Cr. P. Code,, it is open to the Magistrate to convict the accused of a
lesser offence than that with which he is charged. A person summoned under
s. 278 may be convicted under this section (o) ; but a contrary view was held in

(f) Subbaraya . (1890) 1 Weir 237 following 3 M, H. C. R. App. xxxiii.

(g) Lin gap a, (1892) Rat. Unrep. Cr. C. 608.

(h) K. T. Hing v. J. N. Silas, (1929) 57 C. 849.

(i) Ibid.

(j) Onooram v. Lomeswar, (1868) 9 W. R. (Cx.) 70.

(k) Maliappa Gouttdan, (1927) 52 M. 79: 55 M. L. J. 715: A. I. R. (1928) N.
1286. *

*(1) Santubin Lakhapp^Hore, (1868) 5 B. H. C. R. (Cr. C.)*45.

* (m) Yellamandu , (1882) 6 M. 157 Contra Mala Obigadu (1882) 1 Weir 239.

(n) R&ghunatk Kundu, (1925) 24 A. L. J. 2. 168.

(o) Shtv Dat , (1928) 3 Luck. 680.

486

THE INDIAN PENAL CODE

[CHAP. XIV

Chinibas Pals case (p), where the petitioner was not called upon to meet the charge
under this section but the Judge on appeal held thats. 290 was * wide enough to
cover the act * although he had set aside the conviction under s. 447.

Nuisance under a special act or local law The (act that there is a special
law (Cattle Trespass Act) to meet a particular offence does not prevent the punish-
ment under this section if an offence would have been established which could
have been rightly punished under the Penal Code (q).

Public nuisance— only if offence charged is the direct or necessary
consequence of accused’s act ^The mere fact that traffic has been obstructed
by the assembling of customers outside a shop for the purpose of buying satra tickets
which the shop-keeper had offered for sale was held insufficient to support the con-
viction of the shop-keeper under this section, a public nuisance not being the direct
or necessary consequence of his offer (r).

291. Whoever repeats or continues a public nuisance,

Continuance of nui- ^ vin f been enjoined by any public servant
sauce after injunction who has lawful authority to ISSUe SUch
to discontinue. injunction not to repeat or continue such

nuisance, shall be punished with simple imprisonment for a term
which may extend to six months, or with fine, or with both.

This section punishes a person for continuance or repetition of a public
nuisance after he has been enjoined by a public servant not to repeat or continue
such nuisance.

Analogous law : — S. 142 of the Code of Criminal Procedure authorises a
Magistrate making an order under s. 133 of that Code to issue an injunction to
the person against whom the order was made to obviate or prevent such danger or
injury pending the determination of the matter, and under s. 143 of that Code a
Magistrate as mentioned in that section may, order any person not to repeat or con-
tinue a public nuisance , as defined in the Indian Penal Code or any special or local
law. S. 94 (c) and Or. XXXIX of the Civil Procedure Code also empowers a Court
to issue temporary injunction.

Scope r— This section contemplates a wilful breach of an order against re-
peating or continuing a public nuisance, and the order must be brought home to
the individual charged before he can be convicted under this section (s).

Procedure Cognizable— Summons— Bailable— Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class.

To sustain a conviction under this section there must be proof that there was a

{ previous conviction of an offence and an injunction by a public servant to desist
rom continuing such nuisance (t). In order to support a conviction under this
section, it is necessary to prove the order of the Magistrate forbidding the conti-
nuance of the nuisance or evidence of notice of such a character to make plain the
precise terms of the order (u).

(p) (1901) 5C. W. N. 567.

(q) Onooram v. Lomeswar , (1868) 0 W. R. (Cr.) 70.

(r) Nanak Chand t (1929) 11 L. 236, where Mataippa Gotnundan , (192^ 52 M. 79

was distinguished. * f

(s) Jokhu, (1886) 8 A. 99 (101). *

(t) Mahesh Chandra . (1873) 20 W. R. (Cr.) 55.

(u) ,Gunyqt t (1886) Rat. Unrep. Cr. C. 205. ^

SEC. 292 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 487

292 . Whoever —

Sale, etc., of obscene
books, etc.

(a) sells, lets to hire, distributes, publicly exhibits or in

any manner puts into circulation, or for purposes
of sale, hire, distribution, public exhibition or
circulation makes, produces or has in his possession
any obscene book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object
whatsoever, or

(b) imports, exports or conveys any obscene object for

any of the purposes aforesaid, or knowing or having
reason to believe that such object will be sold, let to
hire, distributed or publicly exhibited or in any
manner put into circulation, or

(c) takes part in or receives profits from any business in

the course of which he knows or has reason to be-
lieve that any such obscene objects are, for any of the
purposes aforesaid, made, produced, purchased,
cept, inported, exported, conveyed, publicly ex-
libited or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever

that any person is engaged or is ready to engage in
any act which is an offence under this section, or
that any such obscene object can be procured from or
through any person, or

(e) offers or attempts to do any act which is an offence

under this section,

shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with
both.

Exception . — This section does not extend to any book, pam-

f >hlet, writing, drawing or painting kept or used bona fide
or religious purposes or any representation sculptured, engraved,
painted or otherwise represented on or in any temple, or on any
car used for the conveyance of idols, or kept or used for any
religious purpose.

Legislative changes : — This section and the next (s. 293) have been substi-
tuted by the Obscene Publications Act No. VIII of 1925 — (An Act to give effect
to certain articles of the International Convention for the Suppression of the Cir-
culation of, and Traffic in Obscene Publications — which received the assent of the
Governor-General on the I Oth March, 1925).

This section punishes the sale, distribution or exhibition of obscene books,
pamphlets, prints, drawings, etc. Both under this section and under the English

488 THE INDIAN PENAL CODE [ CHAP. XIV

law (20 and 21 Viet., c. 83, s. 1) the mere possession of obscene prints is not an
offence.

Procedure : — Cognizable — Warrant — Bailable — Not , compoundable — Triable
by Presidency Magistrate or Magistrate of the first class (v).

Order for destruction : — On a conviction under this section the Court
may order the destruction of all the copies of the thing in respect of which the
conviction was had and which are in the custody of the Court or remain in the
possession of the person convicted (w). It is certainly very important, both in
the interest of the accused persons, and of the public, that the Magistrate, in his
decision of the matter should state distinctly what were the particular represent-
ations and words which he finds in the evidence th : convicted persons had exhibited
and uttered and which is adjudged to be obscene (x).

Search of house supposed to contain obscene object If a District
Magistrate, Sub-divisional Magistrate, or a Presidency Magistrate, upon informa-
tion and after such inquiries as he thinks necessary, has reason to believe that any
place is used for the deposit, sale, manufacture or production, of any obscene object
such as is referred to in this section or that any such obscene objects are kept or
deposited in any place, may by his warrant authorise any police-officer above the
rank of a constable —

(a) to take possession of any such objects therein found which he reasonably
suspects to be ‘ obscene objects \ and

(A) to convey * such obscene objects * before a Magistrate, or to guard the
same on the spot until the offender is taken before a Magistrate, other-
wise to dispose thereof in some place of safety, and

(c) to take into custody and carry before a Magistrate ‘ such obscene objects *
or * the said obscene objects * to have been or to be intended to be sold,
let to hire, distributed, publicly exhibited, circulated, imported or
exported (y).

Charge 2 — A charge under this section and s. 294 must be specific in regard
to the representations and words alleged to have been exhibited, uttered and to be
obscene, before the accused persons are called upon to answer it (z). The charge
under this section in connection with a book should specify the offending passages,
but the conviction would not be set aside if no prejudice is caused to the accused by
the omission thereof (a).

Form of charge : — I (name and office of Magistrate , etc.) hereby charge you
(name of accused ) as follows : —

That you, on or about the —day of , at ,

sold, etc., or imported etc., or took part in or received

profit from any business, or offered or attempted to do any such act

(mention the thing) which is an obscene book, pamphlet, paper, drawing, painting,
representation or figure in that it contains the following obscene words, passages

(v) These words were substituted for * triable by Presidency Magistrate or
Magistrate of the first or second class * by Act VIII of 1925.

(w) S. 521, Criminal Procedure Code.

(x) Upendra Nath Das , (1876) I. C. 356 (358) B'adlaugh and Annie Basant
(1878) 3 Q. B. D. 607 (623).

(y) See s. 98 of the Criminal Procedure Code as amended by Act VIII of
1925 which has also amended the form of the search warrant by inserting in Form
IX of the fifth Schedule to the Criminal Procedure, after the words “ or seals or coins "
the words " or obscene objects. "

(z) Upendra NatKvDus, (1876) I. C. 356 (358) ; Bradlaugh and Annie Besant.
(1878) 3 Q. B. D. 607 (623).

(a) Kailash Chandra Acharya , (Rameshdar Atmakatha Case) 60 C. 201 : 56
C. L. J. 123.

SEC. 292 ] OFFENCES AFFECTING THE PUBLIC HEALTH, ETC. 489

or objects, namely, and thereby committed an offence under

s. 292 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Obscene * — In considering publication of obscene prints, Cockburn, C. J.,
observed : “ The test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt thosewhose minds are open to
immoral influences and into whose hands a publication of this kind may fall (b).
In the case of Hicklin a person was indicted for selling a book called The Com*
fessional Unmasked * showing the depravity of the Romish priesthood and although
it was urged that the defendant did not sell the book for gain or for the purpose of
prejudicing morals but for the purpose of exposing what he considered to be the
error of the Church of Rome, the Court held that the immediate motive of the
defendant was immaterial, that the sale was a criminal offence as the pamphlet
suggested to the minds of the young of either sex or even to the persons of more
advanced years thoughts of a most impure and lascivious character (c).

It has been held to be a nuisance to expose the private parts of an individual in
a public place (d). A booklet called the Natu Chori , or the theft of tops being
a poem in the Orya language and ending with a Sanskrit Sloka was not considered
obscene simply on account of its containing some objectionable passages, because
the tendency of such publication was not to deprave or corrupt morals (e).

A religious or classical work does not become obscene within the meaning of
this section simply on account of its containing some objectionable passages because
the tendency of such passages is not to deprave or corrupt morals (f).

Following the decision of Cockburn, C. J., in Regina v. Hicklin , Bachelor, J. f
held : “ The test which we must apply is to see whether the language complained
of is such as is calculated to deprave or corrupt those whose minds are open to
immoral influences ” (g), and Jack and Mitter, J.J., held that the test of obscenity
is this, whether the tendency of the matter charged as obscenity is to deprave and
corrupt those whose minds are opep to such immoral influences and into whose
hands a publication of this sort may fall (h).

Where the accused, the editor of a newspaper, published in that paper extracts
from a religious book pointing out the various sexual acts prohibited during the
fast of Ramzan, held , he was rightly convicted because the tendency of the writing
was to arouse sensuous thoughts (i).

Intention It is the intention of law to suppress an obscene publication
which in the language of Cockburn, C. J., in Hicklin t (1868) L. R. 3 Q.. B. 260, is
• calculated to produce a pernicious effect in the minds of the persons into whose
hands it might come/ It was further held that the question whether a publication
is or is not obscene is a question of fact G). The motive in publishing a book does

(b) Hicklin (1868) L. R. 3 Q. B. 300 (371), followed in Indarman, (1881) 3 A.
837; Parashratn Yeshvant, (1895) 20 B. 193; Hari Singh, (1905) 28 A. 100; Sara*
Chandra Ghosh, (1004) 32 C. 247 ; Rahimatalli M. Molla, (1919) 22 Bom. L. R. 166;
Khirode Chandra Ray , (1911) 39 C. 377 ; Kailash Chandra Acharya, (1932) 60 C. 201.

(c) Ibid.

(d) Thallman, 33 L. J. M. C. 58.

(e) Kheroda Charon Roy Choudhuri, (1914) 39 C. 37 1 .

(g) Vishnu, (1917) 15 Bom. L. R. 307 (313) ; Man Tripragalla Mor Kundeyulu,

(h) Kailash Chandra Acharya, (1032) 60. C. 201 ; 66 C. L. J. 123.

(i) Ghulatn Hussain, (1917) P. R. No. 5 of 1917.

(j) Hari Singh , (1905) 28 A. 100.

490

THE INDIAN PENAL CODE

[ CHAP. XIV

not prevent it from being obscene, if the descriptions are in themselves obscene.
It may be taken into account as regards the question of sentence (k).

Purchase in order to bring the seller to book:— The sale of an obscene
print to a person in private, he having in the first instance requested such . prints
should be shown to him his object being to prosecute the seller, is sufficient to
support a charge under this section (I).

Obscene passages in a pamphlet are not excused because the rest of the publi-
cation is unobjectionable or because the publication is a medical one and sold only
to registered subscribers (I 1 ).

Publication necessary Where the defendant inserted in a newspaper of
which he was the editor advertisement which though not obscene in themselves
related, as he knew, to the sale of obscene books and photographs, it was held that
the defendant who aided, abetted, counselled or procured the commission of an
offence was guilty under the Post Office (Protection) Act, 1884, s. 4, as he had by
publishing the advertisements brought about the sale of the obscene publications and
other articles (m). Publication of an advertisement of a book ( Kashmiri Kok
Shastra) saying that it contained pictures of eighty-four postures of men and women
with interesting descriptions ’ when it did not in fact contain pictures of men and
women cohabiting was held not to be hit by this sections (n).

In Ramcsh das Alma Katha the author wrote a fictitious biography, describing
only a series of sexual adventures, both natural and unnatural, which the author
had from boyhood onwards, and which, it is apparent, he vastly enjoyed, and
ascribing similar indulgences to highly placed members of the society who arc
easily recognisable, it was held that the publication was obscene as the descriptions
were in themselves obscene, although there were not any gross details or indecent
language and although pious remarks about the ruinous effect of sexual vice had
been thrown in here and there in a flippant manner (o).

Distribution of obscene pamphlets : — The accused was convicted under
this section for publishing a certain obscene pamphlet, or rather broad-side, styled
‘ Itr Korani' or ‘Essence of the Koran.’ The pamphlet contained a series of
quotations from the Koran with the author’s comments. There were some passages
in it of a more or less objectionable nature, but that the subject-matter of the charge
consisted of the quotation of a part of a passage from the Koran relating to Virgin
Mary which was perverted by the incompleteness of the quotation and commented
on in a very offensive form, the language employed being not such as might be used
in a bona fide controversial treatise. It was found that the pamphlet was distributed
amongst students whose morality it was likely to corrupt, and Banerjee, J., upheld
the conviction of the accused (p).

Exception The section excepts religious prints, sculptures and engravings,
such as the figure of infant Christ, or the symbol of Siva or other deities of the
Hindu religion and also the allegorical engravings to be found on many Hindu
temples and cars used for the conveyance of idols or for religious purposes (q).

Medical publication It has been held however in Sarat Chandra
Ghosh* s case (q) that transmission of printed post-cards containing an advertise-
ment of a patent medicine in language of an obscene character is an offence under
8. 20 and s. 61 of the Post Office Act (VI of 1898).

(k) Kailask Chandra A charya, (1932) 60 C. 201 : 66 C. L. J. 123 : 30 C. W. N. 986.

(l) Carlile, (1846) 1 Cox. c. c. 22 9.

(ii) ThahurDntta. (1917) P. R. No. 26 of 1917.

(m) De Marney, (1907) 1 K. B. 388.

(n) (1927) 29 Cr. L. J. 773 : 110 I. C. 806 : A. I R. (1928) C. 849.

(o) Kailash Chandra Acharya, (1932} 00 C. 201 : 56 C. L. J. 123 : 30 C. W. N. 986.

(p) Hari Singh, (1905) 28 A 100.

(q) (1904)32 0.247.

SECS. 293 - 94 ] OFFENCES AFFECTING THE PUB. HEALTH, ETC. 491

Advocating checks to conception no offence : — There is nothing obscene
(within the meaning of that word as used in this section) in advocating checks to
conception (r).

Liability of a newspaper proprietor :~~It has been held that the proprietor
or a printer of a newspaper will not be liable if the management of the printing was
in the hands of his agent unless there is evidence that the matter complained of
was inserted by the order of the proprietor or owing to his negligence (s).

293. Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of
objects to young persons, twenty years any such obscene object as is
referred to in the last preceding section, or
offers or attempts so to do, shall be punished with imprisonment of
either description for a term which may extend to six months,
or with fine, or with both.

Legislative changes : — This section was substituted for the original by Act
VIII of 1925, and punishes sale of obscene objects to young persons under 21 years.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first or second class — Triable
summarily.

Order for destruction s— On a conviction under this section the Court may
order the destruction of all the copies of the thing in respect of which the convic-
tion was had and which are in the custody of the Court or remain in the
possession of the person convicted (t).

294. Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or (, b ) sings,

Obscene acts and songs. recit , es uttew any obscene songs, ballad or
words,* in or near any public place,
shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine, or
with both.

This section punishes any obscene act in a public place or a person singing,
reciting or uttering obscene songs in or near a public place.

Legislative changes s — This section was substituted for the original s. 294
by the Indian Criminal Law Amendment Act, 1895 (III of 1895), s. 3.

Procedure Cognizable-^Warrant— Bailable— Not compoundable — Triable
by ‘ any magistrate 9 (u) or Triable summarily.

A conviction under this section for uttering obscene abuse in a public place
may amount to a conviction for an offence involving a breach of the peace within the
meaning of s. 106 of the Criminal Procedure Code (v).

(r) Framji 1). Tarapovewalla, (1892) Rat. Unrcp. Cr. C. 020. See Sutherland
v. Slopes , (1925) A. C. 47.

(s) Mohammed Mohsin , (1890) A. W N. 175; Manilas Ali, (1905) P. R.
No. 35 of 1905.

(t) S. 521, Criminal Procedure Code.

(u) The words ' any magistrate ' were substituted for * Presidency Magistrate 1
by Act XV111 of 1923.

(v) MiKunya, (1904) U. B. R, (P. C.) 4.

492 THE INDIAN PENAL CODE [ CHAP. XIV

Charge : — Same as under s. 292. It should specify the obscene act or song
upon which the prosecution is based.

Where obscene words used by the accused were not set out in the charge, it
was held that the omission was not a sufficient ground for setting aside a convic-
tion under this section (w).

Public place:— One of the essential ingredients of an offence under this
section is that the obscene act must be done in any public place or the obscene song,
etc., must be sung in or near any public place. Thus an indecent exposure of one*s
person in an omnibus (x), in an urinal on a public foot-path (y), a public house (z),
or a place where the public go, no matter if they have any right to go, (a) have been
held to be a ‘public place.*

In England it has been held that an indecent exposure, though in a public
resort, if visible by one person only, is not a public nuisance (b). A railway carriage
whilst carrying passengers has been held to be a public place (c).

Obscene song : — A love song is not necessarily an obscene song unless it
suggests coarse and indecent associations. A lavni is not necessarily an obscene
song. It may be, and often it is so, but it must be proved that the words of it
were actually obscene before a conviction can be had under this section (d).

294 -A. Whoever keeps any office or place for the purpose
v of drawing any lottery not authorized by

Government shall be punished with im-
prisonment of either description for a term which may extend
to six months, or with fine, or with both.

And whoever publishes any proposal to pay any sum, or to
deliver any goods, or to do or forbear doing anything for the
benefit of any person, on any event or contingency relative or
applicable to the drawing of any ticket, lot, number or figure in
any such lottery shall be punished with fine which may extend to
one thousand rupees.

This section punishes keeping of lottery office unauthorised by Government.

Legislative changes .—This section was inserted by the Indian Penal Code
Amendment Act, 1870 (XXVII of 1870), s. 10. Chapters IV, V and XXVI of the
Code apply to offences punishable under this section ; — see the Indian Penal Code
Amendment Act, 1870 (XXVII of 1870), s. 13.

Procedure Non-cognizable — Summons— Bailable— Not compoundable—

Triable by any Magistrate Triable summarily.

Sanction : — No Court shall take cognizance of any offence punishable under
this section unless upon complaint made by order of, or under authority from, the
Governor-General in Council, the Local Government, or some officer empowered
by the Governor-General in Council in this behalf (e).

(w) Narasamma , (1882) 1 Weir. 251.

(x) Charles Holmes , (1852) 22 L. J. M. C. 122.

(y) Harris, (1871) L. R. 1 C. C. R. 282 : 40 L. J. M. C. 07.

(z) Bunyon , (1844) 1 Cox. 74.

(a) Wellard , (1884) 14 Q. B. D. 63 : 54 L. J. M. C. 114.

(b) Webb, (1848) 1 Den. Cr. C. 338 : 18 L. J. M. C. 39.

(c) Langrish v. Archer, (1880) 10 Q. B. D. 44.

(d) Ganubin Krishnagurav, (1867) 4 Bom. H. C. R. (Cr. C.) 25.

S. 196, Criminal Procedure Code.

SEC. 294-A ] OFFENCES AFFECTING THE PUBLI C HEALTH, ETC. 493

Scope : — 44 Taking the two paragraphs together, we think the words ‘ any
such lottery ’ mean upon a grammatical construction of them, any lottery not
authorised by Government. It does not matter in the least where a lottery is to be
drawn, whether in British India or out of it. If it is one 4 not authorised by
Government', any one who publishes such a proposal as is therein contemplated
relating to it renders himself liable to be punished under the second paragraph of
the section.

4 * The section does not touch authorized lotteries, but intends to save people
from the effects of those not authorized first by prohibiting the keeping of offices
or places for drawing them, and secondly by prohibiting the publication of any
advertisement relating to them.

44 If the section were to be narrowly construed as applying only to lotteries
to be drawn in British India, the object aimed at by the second prohibition, to
prevent the mischief of people in British India being drawn into temptation by
such publications, would be very nearly, if not utterly, defeated. The words of the
section are wide enough to include foreign lotteries, and we have no reason to
suppose the legislature intended to exclude advertisements relating to them from
the operation of s. 294-A of the Indian Penal Code " (f).

The word ‘ publisher ' includes the proprietor of a newspaper as well as the
person who sends the advertisement for publication (g).

Lottery 2 — In England under 10 Will. Ill, c. 17 and 42, Geo. Ill, c. 119 all
lotteries are common and public nuisances. Persons keeping them are liable to a
penalty of £500 and persons drawing at them to a penalty of £20 and the keepers of
lotteries are classed as rogues and vagabonds.

A lottery is a game of chance in which the event of either gain or loss of the
absolute right to a prize or prizes by the persons concerned is made wholly
dependent upon the drawing or casting of lots or chance (h).

In deciding the meaning of ‘ gaming * which has not been defined in the
Gambling Act (II B. C. of 1913), Mukerji, J., held that it is the existence of a stake
and not the character of the game which constitutes the distinction between gamb-
ling and playing a game (i). ,

In England it has been held that a contingency is not the less within s. 1 of the
Betting Act, 1853, because it relates to a game which affords scope for skill and is
not a game of pure chance (j). Of lotteries, pure and simple, it has been held
that they are transactions in which there is no scope for the exercise of skill and the
result of which is determined purely by chance. So where a horse was about to
be run when 155 persons subscribed £1 each upon the term that the names of the
horses should be placed on separate cards in one box, and the names of subscribers
on separate cards in another box, and two disinterested persons should then draw
these cards by chance, one from each box after the other, and that the person whose
name was drawn next after the name of the winning horse should be entitled to £100,
out of the fund, the transaction was held to be a lottery (k). In another case, where
tickets were drawn by subscribers of a shilling which entitled them, at all events

(f) Per Nanabhai Haridas, J., in Mancharji Kavasji Shapurji, (1865) 10 B. 97

( 100 , 101 ).

(g) Ibid. p. 100.

(h) Per Scotland, C. J., and Freece J., in Kamakshi Achari v. A-ppaon Pillai.
(1862) 1 M. H. C. 448, followed in Vazirally, (1928) 53 B. 57 : 30 Bom. L. R. 1426 :
A. I. R. (1928) B. 550.

(i) Arjoon Singh, (1929) 33 C. W. N. 910.

(j) Peers v. Caldwill, (1916) 1 K. B. 371.

(k) Allpost v. Null, (1846) 14 L. J. C. P. 272 ; Jetty v. Field, (1840) 15 L. J.

Q. B. 408.

494

THE INDIAN PENAL CODE

[CHAP. XIV

to what was proposed to be a shilling's worth of goods, and also to the chance of
certain bonuses of goods of greater value than the shilling, it was held to be a case
of illegal lottery (I).

The appellant sold packets of tea each containing a pound of tea at 2s. 6 d. a
packet. In each packet was an offer entitling the purchaser to a prize, and this was
publicly stated by the appellant before the sale, but the purchasers did not know
until after the sale what prizes they were entitled to, and the prizes varied in charac-
ter and value. The tea was good and in itself worth the money paid for it but
it was held that the act of the appellant did constitute lottery (m).

Where every subscriber paid Rs, 10-8 and obtained a negotiable bond for
Rs. 10 and on sale of 200 tickets the drawings were to commence, and further
drawings were to be made until every one got a prize or had his money refunded,
the scheme was held to be a lottery and the accused was held guilty of an offence
under the second part of this section (n). So where one Hunt who kept a shop
of confectionery sold penny packets of American Caramel several of which con-
tained a half-penny in addition to a fair penny worth of sweets— these prizes were
not advertised but it was held that Hunt was guilty of keeping a lottery (o).

In a case the defendant, who was the proprietor of a newspaper, carried on a
competition under the following conditions : He published in his paper a para-
graph omitting the last word. In the same paper he printed a coupon with a
direction that persons wishing to enter the competition must cut out the coupon
and send the missing word to the office of the newspaper with a postal order for Is. ;
it was further stated that the whole of the money received in entrance fees would
be divided amongst the successful competitors equally ; held that the competition
constituted a lottery within the meaning of 42 Geo. 3, c. 119, and was illegal (p).
Where the proprietors of a weekly newspaper caused medals to be distributed gra-
tuitously amongst the public, each medal bearing a distinctive mark, (l) * * 4 keep this,
it may be worth £100, see the Weekly Telegraph to day 4 and the winning members
were arbitrarily selected by a person in the employ of the paper, it was held that
the scheme was a lottery within s. 2 of the Gaming Act, 1802 (q). Where tickets
each bearing a different number were sold fo^ 6 d. each upon the terms that the
purchaser of the ticket bearing a number to be subsequently drawn by an inde-
pendent person should be entitled to a bicycle ; as a price of the bicycle was
presented as a gift by a firm of cycle manufacturers for the purpose of advertise-
ment, no part of the money paid by the purchasers of the tickets being used for
acquiring the bicycle, it was held that the scheme constituted a lottery within the
meaning of the Lotteries Act, 1823, s. 41, and it was immaterial that no part of the
money paid by the purchasers of the tickets was used for the purpose of the
price (r).

Where the proprietor of a music hall distributed gratuitously postal orders
to the audience and the determination was by choice or chance, held that he had
‘exercised lottery' contrary to s, 2 of the Lotteries Act, 1699 (s).

(l) Harris, (1866) 10 Cox. 352.

(m) Taylor v. Smetlon, (1883) 1 1 Q. B. D. 207 : 52 L. J. M. C. 101, followed in
V azirally (1928) 53 B. 57 : 30 Bom. L. K. 1426.

(n) Maian Gopal, (1910) P. R. No. 17 of 1910 : 6 I. C. 620.

(o) Hunt v. Williams (1888) 52 J. P. 821.

(p) Barclay v. Pearson, (1893) 3 Ch. 154. see contra, Per Lush, J., in Scott v.
Director of Public Prosecutions, (1914) 2 K. B. 868 (878).

(q) Willis v. Young, (1907) l K. B. 448, followed in Madan Gopal (1910) P. R.
No. 17 : 6 I. C. 620.

(r) Barlett v. Parker, (1912) 2 K. B. 497.

(s) Minty v. Sylvester, (1915) 25 Cox. 247.

SEC. 294-A] OFFENCES AFFECTING THE PUB. HEALTH, ETC. 495

1 keeps any office 9 : — The use of a room on one occasion for the drawing
of tickets in a lottery is not an offence under s. 2 of the Gaming Act, 1802, which
forbids the keeping of any place for the purpose of a lottery (t). The members of
the committee of a club who exercise full control over club matters inclusive of the
premises 4 keep 4 the premises of the club (u).

Keeping a lottery : — The keeping of a lottery is an indictable offence (v).
Where it is shown that the accused kept an office where they carried on the neces-
sary preliminary work for running a lottery and received the lottery moneys and
which they held out to the public as the place where the lottery would be drawn,
they are guilty of an offence under this section even though the lottery was not
actually drawn (w).

1 Drawing 9 s— The word 4 drawing * is used in the section in its physical
sense and actual drawing of lots is an essential ingredient of the offence (x).

No Lottery An agreement whereby a number of persons subscribe each a
certain sum, by periodical instalments, with the object that each in his turn (to be
decided by lot) shall take the whole subscription for each instalment, all such
persons having returned the amount of their contributions, the common fund being
lent to each subscriber in turn was held to be no lottery (y). A society constituted
for the benefit of its members, making certain of them entitled to particular bene-
fits by the process of periodical drawings, does not come within the Lottery
Acts (z). Where the proprietors of a newspaper published therein an advertise-
ment of a competition of money prizes the terms of which were that each competi-
tor was to select one of a number of given words and compose a short sentence
which defined the word 4 selected, ’ held , it was not a lottery (a). An offer of a
prize for naming the winners in races has been held not to be a lottery as the skilled
knowledge of the competition was an ingredient in the matter (b). This case
was followed in another case where the defendant published a newspaper con-
taining an offer of a money prize for a correct prediction of the number of births
and deaths in London during a named week and competitors who were not limited
to one prediction were to fill in the predicted numbers on coupons which were
published in the issue of the paper which contained the offer, held that this prize
competition was not a lottery (c). *

4 publishes any proposal, etc.:— The second paragraph of this section
punishes the publisher of any proposal, etc.

If A sends an advertisement to B the proprietor of a newspaper for publics*
tion, B is punishable as well as A for such publication (d).

Reading, C. J., observed: 44 Once it is established that the

appellant was responsible for sending^ the circular to the printing company to be
printed, and that it was printed, there is an end to this appeal, for it is inconceivable
that none of the printers read the circular. It was sent for the express purpose of
being reproduced. When received for that purpose the printers must have read

(t) Martin v. Benjamin , (1907) 1 K. B. 64.

(u) Cooke , (1914) 7 L. B. R. 319.

(v) James Crawshow, (1860) 8 Cox. 376.

(w) In re. Rameswami Mudaliar, (1922) 16 L. W. 757 : 32 M. L. T. 340 : 44

M. L. J. 595 : 23 Cr. L. J. 688 : 69 I. C. 272.

(x) Vazirally t (1928) 53 B. 57: 30 Bom. L. R. 1426: A. I. R. (1928) B. 550,
following Mukandi Lai, (1917) 35 P. R. 1917) Cr. : 18 Cr. L. J. 768.

(y) Vasudevan Nambudri , (1898) 22 M. 212.

(z) Wallingford V. Mutual Society, (1880) 5 App. Cas. 685.

(a) Scott v. Director of Public Prosecutions , (1914) 2 K. B. 868.

(b) Stoddart v. Sagar, (1895) 2 Q. B, 474.

(c) Hall v. Cox, (1899) 1 Q. B. 198.

(d) Mancherji Kavasji (1885) 10 B. 97 (100).

496

THE INDIAN PENAL CODE

[CHAP. XV

it. But it is argued that was not the publishing of a proposal. To my mind the
fallacy of that argument consists in saying that publication only means making
known the nature of the proposal. The moment the document has been made
known to another t then it is published (e).

A person publishing in a handbill the terms and conditions of the # Derby
Sweep for a certain year is guilty under this section. The word ‘ published * in this
section should be taken in the ordinary sense. If a person sends an advertisement
to the proprietor of a newspaper for publication and if it is published, then both
he and the proprietor of the newspaper will be liable for publication (f). The
circular of the Irish Sweep Stake which was referred to in one of the letters written
by or found in the possession of the petitioner, stated that the Irish Hospital
Sweep Stake was expected to reach the huge total of £5,00,00,000 or 7 crores of
rupees. The said letter stated that application should be made with Rs. 7*8 as.
per ticket to the petitioner. The ticket itself contained a proposal for the payment
of different sums for the benefit of the holders of such tickets. The money
would be divided on each unit of £1,00,000 as follows : 50 first prizes of £30,000
or over 4 lacs of rupees each, 50 second prizes of £10,000 or over 1 \ lacs of rupees
each, 1200 prizes of Rs. 12,000 to 15,000 each and 500 cash prizes of £200 or
Rs 2,750 each, held that the case fell within the mischief of this section (g).
But a mere publication that tickets in a certain unauthorised lottery can be had at
a particular place does not constitute ‘a publication of a proposal to pay* etc., within
the meaning of paragraph 2 of this section and is not an offence (h). Delivery of
ticket-books of a lottery with a view to the tickets therein being sold to others is a
sufficient publication (i).

* delivers any goods * s — Promotion of 1 Chit-fund ’ wherein the number of
subscribers is determined beforehand and every subscriber is to get from the
promoters the whole of the capital subscribed by him is not ‘ lottery * (j).

* goods 9 : — This expression is not confined to moveables (k). It has been
held in Peddas case (k ) that the publication of an advertisement of a lottery by
which the lucky winner would get a factory for less than its value is an offence under
this section.

CHAPTER XV.

Of Offences Relating to Religion.

The Authors of the Code observe : — “ The principle on which this Chapter
has been framed is a principle on which it would be desirable that all Govern-
ments should act, but from which the British Government in India cannot depart
without risking the dissolution of society ; it is this, that every man should be
suffered to profess his own religion, and that no man should be suffered to insult
the religion of another.

(e) Dm v. Director of Public Prostcucions (1920) 26 Cox. 604
(») Chimanlal, (1925) 27 Bom. L. R. 363’.

(g) Rabindra Nath Dhav , (1932) 56 C. L. J. 539.

(h) Rachappa , (1924) 26 Bom. L. R. 968.

(i) Diwan Chand Jolly , A. I. R. (1930) L. 81.

(j) Narayan Avanger v. Vsllachai Ambalam, (19M.7) 50: M. 96 (F. B.).

(k) Pedda Molla Reddi, (1926) 50 M. 479 : 51 6 L. J. 685 (1926) M. W. N.

949 *

SEC. 295 ] OFFENCES RELATING TO RELIGION

497

“ The question whether insults offered to a religion ought to be visited with
punishment does not appear to us at all to depend on the question whether that
religion true or false. The religion may be false, but the pain which such in-
sults give to the professors of that religion is real. It is often, as the most super-
ficial observation may convince us, as real a pain and as cut a pain as is caused
by almost any offence against the person, against property or against character.
Nor is there any compensating good whatsoever to be set off against this pain.
Discussion, indeed, tends to illicit truth ; but insults have no such tendency ; they
can be employed just as easily against the purest faith as against the most mon-
strous superstition. It is easier to argue against falsehood than against truth ; but
it is all easy to pull down or defile the temples of truth as those of falsehood ; it is
as easy to molest with ribaldry and clamour men assembled for purposes of pious
and rational worship, as men engaged in the most absurd ceremonies. Such insults,
when directed against erroneous opinions, seldom have any other effect than to fix
those opinions deeper, and to give a character of peculiar ferocity to theological
dissention ; instead of eliciting truth they only inflame fanaticism.

“ All these considerations apply with peculiar force to India. There is per-
haps no country in which the Government has so much to apprehend from reli-
gious excitement among the people. The Christians are numerically a very
small minority of the population, and in all the highest posts in the Government,
in the tribunals and in the Army. Under their rule are placed millions of Maho-
medans, of different sects, but all strongly attached to the fundamental articles of
the Mahomedan creed, and tens of millions of Hindus, strongly attached to doc-
trines and rites which Christians and Mahomedans join in reprobating. Such
a state of thing is pregnant with dangers which can only be averted by a firm adher-
ence to the true principles of toleration. On those principles the British Govern-
ment has hitherto acted with eminent judgment, and with no less eminent success,
and on these principles we propose to frame this part of the Penal Code ” (1).

295. Whoever destroys, damages or defiles any place of
injuring or defiling worship, or any object held sacred by any
place of wot ship, with class or persons with the intention ot thereby
'"f'" 1 , *»*"">'? the insulting *the religion of any class of persons
or with the knowledge that any class or
persons is likely to consider such destruction, damage or defile-
ment as an insult to their religion, shall be punished with im-*
prisonment of either description for a term which may extend to
two years, or with fine, or with both.

This section punishes the injuring or defiling of any place of worship or any
object held sacred by a class of persons with the intention of insulting the religion
of any class of persons. Intention is the main ingredient of the offence.

Scope : — This section makes punishable acts of destruction, damage or
defilement by whomsoever committed and quite irrespective of the person of the
offender — provided that such acts are done with the intention of insulting the
religion of any class of persons, or with the knowledge that such destruction,
damage or defilement will be considered by any class as an insult to their religion.
The mens rea is of the essence of the offence (m).

Procedure : — Cognizable — Summons — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class.

(l) Note Jr

(m) Per Parker, J., in Sivakoti Swami, (1885) 1 Weir. 253 (255-256).

38

498 THE INDIAN PENAL CODE [CHAP. XV

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (ipame
of the accused) as follows : —

That you, on or about the -day of ; — , at-

destroyed (or damaged or defiled) a certain place of worship, to wit ,

(or an object, namely ), held sacred by a class of persons,

namely, (specify the class) with the intention of thereby insulting the rdigioh ofcthat
class of persons (specify the class of persons insulted) [(or with the knowledge that
any class of persons, namely was likely to consider the said des-

truction (or damage or defilement) as an insult to their religion)] and thereby com-
mitted an offence under s. 295 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

‘defiles* : — The word ‘ defile * is not to be restricted in meaning to acts that
would make an object of worship unclean as a material object but extends to acts
done in relation to the object of worship which would render such object ritually
impure (n). This case was followed by Napier, J., who held that the word 4 defile*
cannot be confined to the idea of making 4 dirty * and must also be extended to
ceremonial pollution but it is certainly necessary to prove pollution (o).

This word does not include animate objects (p).

Any place of worship or any object Where a Hindu had sexual inter-
course with a woman within an enclosure surrounding a tomb or 4 in one corner of
the sepulchre * under which the remains of a Muhammadan 4 Fakir * venerated
by some of his co-religionists are buried, and who was convicted under this section,
the High Court of Madras, held, that in the absence of evidence that the place was
used for worship or otherwise held sacred, the conviction was bad, but altered the
conviction to one under s. 297. Brandt, J., observed in that case : 44 There is a
distinction, not arbitrary, between objects which are objects of respect and even
veneration and objects which are held sacred ; as an example of the former, I may
refer to a place of sepulchre (not actually consecrated, as in the case of ground
specially consecrated for that purpose according to the rites of the Christian
Churches), as distinguished from a place for worship to the deity or where an
idol or altar is kept ; and such distinction appears to have been kept in view by the
Legislature, for while s. 295 deals with the latter class of objects and places, s. 297
deals more especially with trespasses on places of sepulchre and places set apart for
the performance of funeral rites and as depositories for the remains of the dead ** (q).

Any class of persons: — The object with which the Legislature enacted
this section was, as indicated by the section itself, to prevent wanton insult to the
religious notions of that class of persons (r).

Intention of insulting the religion of any class of persons or the
knowledge that any class of persons is likely to consider such destruction,
etc., as an insult to their religion : — Intention to insult is the gist of the
offence.

Where the accused as a result of a quarrel with a relative threw a basket con-
taining cooked food (fowl, fish, rice, &c.) into a well, and without any intention to
wound the religious susceptibilities of any one, it was held that he cannot be con-

(n) Per Muttuswami Aiyar, J., in Sivakoti Swami, (1885) 1 Weir. 253.

(o) Kuttickami Mootman v. Rama Pattar, (1918) 41 M. 980 (981) : 24 M. L. T.
181 • 18 Cr. L 960 : 47 I C. 812.

(p) Imam Ali, (1887) 10 A. 150 F. B. ; Ramesh Chander Sanval v. Hira Mundat„

(1890) 17 C. 852. See Ali Muhammad , (1917) P. R. No. 10 of 1918 (F. B.), overruling
Hakim . (1884) P. R. No. 27 of 1884. .

(q) In re. Ratne Mitdali, (1886) 10 M. 126 (127-128).

(r) Sivakoti Swami , (1885) 1 Weir 253.

SEC. 205-A]

OFFENCES RELATING TO RELIGION

499

victe<J under this section (s). The accused, a Hindoo, was charged at the
instance of certain Mahomedans under this section for removing some old building
materials of a mosque, and was acquitted on the ground that the mosque which
was in charge of no one in particular had fallen into ruins. The complainant moved
the High Court in revision and Broadhurst, J., held that upon facts there was no
reason to belicve*that the accused in acting as he did, had any intention of insulting
the religion of the Mahomedan residents of the village or that he did so even with
the knowledge that any class of persons was likely to consider the removal of the
materials as an insult to their religion (t). In another case, the accused, a gold-
smith by caste, performed a ceremony called Abhisekam by pouring cocoanut oil
over the lingam of Shiva. It was held that the act of the accused would amount
to an offence under this section, if the idol could not be touched by any one except
the priests and if the accused performed the ceremony with the object of openly
ridiculing the established custom (u). Where the accused persons, who were of
low-caste servants of a Hindu worshipper, entered into the precints of a temple and
were convicted under this section, it was held that being themselves Hindus the
accused felt as much reverence for the idol as other Hindus and they could not be
convicted under this section as they had no desire or intention to insult the religion
of a class of persons (v).

“ 295* A. Whoever, with deliberate and malicious intention
of outraging the religious feelings of any class
of His Majesty’s subjects, by words, either
spoken or written, or by visible representa-
tions, insults or attempts to insult the
religious beliefs of that class, shall be
punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both/’

Deli be rate a nil ma J i -
cious acts in tender] to
outrage religious feel-
ings of any class, by in-
sulting its religion or
religious beliefs.

This section was inserted by s. 2 pf Act XXV of 1927 (Criminal Law Amend-
ment Act of 1927).

It was inserted to meet considerable agitation that was raised after the decision
of Dalip Singh, J., in the Rangila Rasul case (w) which held that s. 153-A was not
intended to cover a satire on the founder of a religion and that it was not meant to
stop polemics against deceased religious leaders however scurrilous and in bad
taste such attacks might be.

This section need not have been inserted because the same High Court in a
later decision (x) has held that although a criticism of a religious leader, whether
dead or alive may not fall within the mischief of s. 153-A, the writing of a scur-
rilous and foul attack on such a religious leader would prima facie be an
offence under the said section.

Procedure : — Not cognizable — Warrant*— Not bailable — Not compoundable
— Triable by Court of Session or Presidency Magistrate.

(s) Warn an Lakshman, (1898) Rat. Unrep. Cr. C. 979.

(t) Janmahammad v. Narain Das, (1883) 3 A. W. N. 39.

(u) Sivakoti Swami, (1985) 1 Weir 253.

(v) Must. Zingoo , (1893) 7 C. P. L. : R. 45.

(w) Rajpaul, (1927) 28 P. L. R. 514 : 103 I. C. 769 : A. I. R. (1927) L. 590.

(x) Per Broadway, J., in Devi Sheran Sarma, ( Risla-i-Vertman Case), (1927)
28 P. L. R. 497 : A. I. R. (1927) L. 594.

500 THE INDIAN PENAL CODE [ CHAP, XV

Sanction — of the Local Government is necessary for the institution of a pro-*
secution under this section (y).

For confiscation of scurrilous writings falling within the mischief of this sec-
tion see s. 99-A, Cr. P. Code, amended hy Act XXV of 1927.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at ,

by writing (or speaking) the words ( mention them) (or by visible representations,

viz., ) insulted or attempted to insult the religion (or the religious beliefs)

of a class of His Majesty’s subjects, to wit , with the deliberate and

malicious intention of outraging the religious feelings of that class, and thereby
committed an offence punishable under s. 295-A of the Indian Penal Code and
within my cognizance (or the cognizance of the Court of Session).

And I hereby direct that you be tried (by the said Court) on the said charge.

Statement of Objects and Reasons on Bill No. Ill of 1927 “ The pre-

valence of malicious writings intended to insult the religion or outrage the religious
feelings of various classes of His Majesty’s subjects has made it necessary to
examine the existing provisions of the law with a view to seeing whether they re-
quire to be strengthened. Chapter XV of the Indian Penal Code, which deals
with offences relating to religion, provides no penalty in respect of the kind de-
scribed above. Such writings can usually be dealt with under s. 153-A of the
Indian Penal Code as it is seldom that they do not represent an attempt to pro-
mote feelings of enmity or hatred between different classes. It must be recognised,
however, that this is only an indirect way of dealing with acts which may properly
be made punishable themselves apart from the question whether they have the
further effect of promoting feelings of enmity or hatred between classes. Accord-
ingly it is proposed to insert a new section in Chapter XV of the Indian Penal Code,
with the object of making it a specific offence intentionally to insult or attempt to
insult the religion or outrage or attempt to outrage the religious feelings of any
class of His Majesty’s subjects. Certain amendments are also proposed in the
Code of Criminal Procedure in pursuance of ‘the object of the Bill M (z).

Report of the Select Committee : — “ We have given long and careful
consideration to the provisions of the Bill word by word and propose to explain
our conclusions separately under each clause.

44 Clause 2 : — The proposed new section 295-A is by far the most important
provision contained in the Bill and we have examined it in the light of such criticism
as have been expressed since the Bill was introduced whether by Members of the
Legislature or of the general public and we now proceed to set forth our conclu-
sions in detail.

“ In the first place, we are of opinion that the simple use of the word * inten-
tionally 1 does not sufficiently bring out what we consider is the essence of the
offence, namely, that the insult to religion or the outrage to religious feelings must
be the sole, or primary, or at least the deliberate and conscious intention. We
have accordingly decided to adopt the phraseology of s. 298 which requires
deliberate intention in order to constitute the offence with which it deals.

“ Secondly , we think that to penalise even an intentional outrage or attempted
outrage upon the religious feeling of any class would be casting the net too wide
for the cases with particular reference to which the Bill has been introduced. At
the same time we realise that the reference to the outraging of religious feelings

(y) S. 196, Cr. P. Code. ^

(z) P. I., 27th August, 1927, Part V, p. 213.

SEC. 296]

OFFENCES RELATING TO RELIGION

601

was inserted to provide for the case of an insult to the founder of a religion or a
person held sacred by the followers of a particular religion where such an outrage
does not amount to an insult of the religion. It has in one instance been held that
an insult to the founder of a religion is not necessarily an insult to the religion
although it may outrage the religious feelings of the followers of that religion. We
have therefore provided that the new section shall only apply in cases where a
religion is insulted with the deliberate intention of outraging the religious feelings
of its followers ; and to make it clear that an attack on a founder is not omitted
from the scope of the section, we have specifically made punishable as insult to the
* religious beliefs* of the followers of any religion.

^ " Further we are impressed by an argument to the effect that an insult to a
religion or to the religious beliefs of the followers of a religion may be inflicted in
good faith by a writer with the object of facilitating some measures of social reform
by administering such a shock to the followers of the religion as would ensure
notice being taken of any criticism so made. We have therefore amplified the
words 4 with deliberate intention ’ by inserting reference to malice, and we think
that the section which we have now evolved will be both comprehensive and at
the same time of not too wide an application.

“Finally, we have limited the scope of the original section by the omission of the
words or by signs * and the words ‘ or otherwise.’ Indeed, we find difficulty in
imagining cases to which the latter words * or by signs * are not necessary for the
purpose of the particular classes of offences with which it is intended to deal.

M Clause 3 : — The amendments which we have made in sub-clause (i) of this
clause are consequential upon these which we have made in sub-clause 2. As regards
sub-clause (ii) we are of opinion that a provision requiring the sanction of Govern-
ment to the institution of a prosecution under this section is necessary in order to
avoid factitious or vindictive proceedings which would not be likely to result in a
conviction.

44 In sub-clause (iii) we have provided that cases under the new section shall be
triable exclusively by Courts of Session, or in Presidency-towns by Presidency
Magistrates. By so doing, we avoid the possibility of a trial followed by an appeal
to the Court of Sessions and an application for revision to the High Court. At the
same time, we think that the Court of Sessions should have direct cognizance of
cases many of which are likely to raise difficult points of law or of fact and law com-
bined. We desire to observe that by the reference to a Court of Sessions we mean
a Court of Sessions sitting with assessors ” (a).

Although the Select Committee recommended that the offence should be
bailable, subsequently they accepted the minority report that the offence should
be non-bailable (b).

296 . Whoever voluntarily causes disturbance to any
x . . ... assembly lawfully engaged in the perform-

as Sb“? n8 rehgl0US ance of religious worship, or religious
ceremonies, shall be punished with imprison-
ment of either description tor a term which may extend to one
year, or with fine, or with both.

Essential ingredients of an offence under this section To constitute
an offence under this section there must be ( I ) a voluntary disturbance caused,
(2) the disturbance must be caused to an assembly engaged in religious worship or

(a) G. L, 17th September, 1927, Part V, pp. 251-262.

(b) G. I., 17th September, 1927, Part V, pp, 253.

502

THE INDIAN PENAL CODE

[CHAP. XV

religious ceremonies, and (3) the assembly must be lawfully engaged in such
worship or ceremonies, i\e., they must be doing what they have a right to do (c).

Procedure : — Cognizable — Summons Bailable Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge : — 1 (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

voluntarily caused disturbance to an assembly, namely , lawfully

engaged in the performance of religious worship (or religious ceremonies) and there-
by committed an offence punishable under s. 296 of the Indian Penal Code and
within my cognizance. ^

And I hereby direct that you be tried on the said charge.

Disturbing religious assembly -A mas j id was used by the members of
a sect of Muhammadans called the Hanafis, according to whose tenets the word
* Amin ’ should be spoken in a low tone of voice. While the Hanafis were at
prayers, R t a Muhammadan of another sect, entered the masjid , and in the course
of the prayers, according to the tenets of his sect called out * Amin * in a loud tone of
voice. For this act he was convicted of voluntarily disturbing an assembly engaged
in religious worship, an offence punishable under s. 296 of the Penal Code. A
Full Bench of the Allahabad High Court ordered the case to be re-tried and directed
that in re-trying it, the Magistrate should have regard to the following questions,
viz. t (1) Was there an assembly lawfully engaged in the performance of religious
worship ? (2) Was such assembly, in fact, disturbed by the accused ? and (3) Was
such disturbance caused by acts and conduct on the part of the accused by which
he intended to cause such disturbance, or which acts and conduct, at the time of
such acts and conduct, he knew or believed to be likely to cause disturbance ? (d).

A mosque which has been dedicated to God cannot be appropriated exclusively
to or by any particular sect of Muhammadans. It is a place where all Muhammadans
are entitled to go and perform their devotions as of right, according to their con-
science. But a Muhammadan would bring himself within the grasp of the criminal
law who, not in the bona fide performance of his devotions, but mala fide for pur-
poses of disturbing others engaged in their devotions, makes any demonstration,
oral or otherwise, in a mosque, and disturbance is the result (e).

Where the accused spread false rumours which caused a religious procession
to come to an end, the Allahabad High Court held that they could not be convicted
of voluntarily causing disturbance to the procession within the meaning of this
section (f).

The worship referred to in this section must be a real worship and not a
cloak for doing something else, and the assembly must be lawfully engaged in wor-
ship and persons disturbing such assembly would be guilty of an offence under this
section (g).

Te object of this section presumably is to secure freedom from molestation
when people meet for the performance of acts in a quiet spot vested fot the time
in the assembly exclusively ; and not when they engage in wo^faip in an unquiet
place open to all the public as a thoroughfare (h).

(c) Jaipal Gir v. D harm ap ala , (1895) 23 C. 60 (74).

(d) Ramzan, (1895) 7 All. 461 (F. B.).

<e) Ataulla v. Azimxtlla , (1889) 12 A. 494 (F. B.) ; Jangu V. Ahmad Ullah,
(1889) 13 A. 419 (F. B.) ; Kurban Ali , (1908) 12 C. W. N. 289.

(i) Mohammed Husain , (1919) 17 A. L. J. 820.

(g) • Jaipal Gir v. Dharmapala , (1899) 23 C. 60 (72).

(h) Vijiaqaraghavachariar , (1902) 26 M. 654 (F. B.).

SEC. 297] OFFENCES RELATING TO RELIGION

503

To constitute a * disturbance * within the meaning of this section
a religious service need not be stopped or actually prevented from being
carried on ; nor a religious assembly should be really disturbed (i).

Music before Mosque : — It was held by a Full Bench of the Madras High
Court that no sect is entitled to deprive others forever of the right to use the
public streets for processions, on the plea of the sanctity of their place of
worship, or on the plea that worship is carried on therein day and night (j).
In this connetion reference may usefully be made to the Salvation Army case (k)
as also to the Privy Council decision in Mansur Hasan v. Mohammed
Zamman (1).

In the Full Bench decision of Viswanath Row (m) which followed the leading
case *of Sundaram Chetty , an earlier Full Bench decision (j), it was held that in
case of a conflict between public interest and a private right the former must
prevail and the High Court did not interfere with an order under s. 144, Cr.
P. Code. It is not necessary for the purpose of this section that the accused
should tave an active intention to disturb religious worship. It is sufficient,
if knowing they were likely to disturb it by their music they took the risk
and did actually cause disturbance (n).

It is an offence under this section to pass a mosque with music so as to disturb
religious worship carried on during hours notified therefor. S. 79 cannot be
pleaded in such a case (o).

297. Whoever, with the intention of wounding the feelings
of any person, or of insulting the religion
r iac^ SP eTc‘ ngon of any person, or with the knowledge that

the feelings of any person are likely to be
wounded, or that the religion of any person is likely to be insulted
thereby,

commits any trespass in any place of worship or on any

{ dace of sepulchre, or any place set apart for the performance of
uneral rites or as a depository for the remains of the dead, or
offers any indignity to any human corpse, or causes disturbance
to any persons assembled for the performance of funeral cere-
monies,

shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine, or with both.

Scop*: — The provisions of this section become applicable where there is a
trespass in a place of religious worship with the knowledge that the feeling of
persons would be wounded thereby (p).

Procedure : — Cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge I .(name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

(i) (1880) l'Weir 259.

(i) Sundaram Chetti , 6 M. 203 (F. B.).

(k) Beatty v. Gilbanks, (1882) 9 Q. B. D. 308, explained in Reg. v. Justices of
Londonderry , 28 L. R. Ir. 400.

(1) (1924) 62 I. A. 61 : 29 C. VV. N. 486 : 47 A. 151 (P. C.).

(m) (1926) M. W. N. 616 (F. B.).

(n) Public Prosecutor v. Sanku Sathiah , (1910) 34 M. 92.

(o) Ibid.

(p) Bhagya, (1880) Rat. Unrep. Cr. C. 148.

504

THE INDIAN PENAL CODE

[ CHAP. XV

That you, on or about the 'day ofr* , at ,

with the intention of wounding the feelings of (or of insulting the

religion of ) or (with the knowledge that the feelings of—

a^e likely to be wounded) (or that the religion of “is likely to be insulted

thereby), committed a trespass in a place of worship, to wit ,

(or on a place of sepulchre, to wit or a place set apart for the

performance of funeral rites or as a depository of the remains of the dead) or

offered any indignity to any human corpse (or caused disturbance to

A 9 B f C, D, persons assembled for the performance of funeral ceremonies) and
thereby committed an offence punishable under s. 297, I. P. C., and within my
cognizance.

And I hereby direct that you be tried on the said charge.

Trespassing in burial places, etc. :—A t B, C, D were owners of a plot
of land in which they were accustomed to bury their dead ; A and B opened
a saw-pit close to the graves of D’s relatives, but did not disturb any of the graves.
It was held that they cannot be convicted under this section (q).

Persons, who enter upon a burial place and plough up the graves, are liable
to be convicted under this section, notwithstanding that their entry on the land
wae by the consent of the owner thereof (r).

Trespass in this section must be taken in its original meaning and not in
the meaning of criminal trespass in other parts of the Code and this would cover
injury or offence done coupled with entry upon property. Where A w r as
found having sexual connection with B in a mosque, the Allahabad High Court
held both A and B guilty under this section (s).

R, a Hindu, had sexual intercourse with a woman within an enclosure sur-
rounding the tomb of a Muhammadan fakir. It was held that in the absence of
proof that the place was used for worship or otherwise held sacred, a conviction
under s. 297 and not under s. 295, ought to be made (t).

Where a person entered upon a grave for the purpose of demarcating his
share therein and in doing so dug up certain graves and exposed the bones of the
persons buried there in spite of the remonstrances of the relations of the buried
persons, it was held that he was properly convicted under this section and none
the less because he happened to be part owner of the grave (u).

Place of Sepulchre : — An act of a person who destroys or disturbs a place
of sepulchre with the intention of wounding the feelings of any person or with the
knowledge that the feelings of any person are likely to be wounded is wrongful and
amounts to 4 a trespass * within the meaning of this section, no matter whether the
land in which the place of 4 sepulchre * is included does or does not belong to the
persons who are guilty of the acts of destruction (v).

The erection of a shed over a visible grave belonging to the complainant’s
family in a disguised grave yard, claimed to be private property of the trespasser,
with the knowledge that the feelings of the complainant would be likely to be
thereby wounded, is an offence under this section (w).

(q) Khaja Mahomed Hamin Khan , (1881) 3 M. 178.

(r) Subhan, (1896) 18 A. 395.

(s) Maqsud, (1923) 45 A. 529 : 21 A. L. J. 455 : 24 Cr. L. J. 711 : 73 I. C. 935:

I. R. (1924) All. 9, following Subhan, (1896) 18 A. 395.

(t) Ratna Mudali, (1886) 10 M. 126.

(u) Ramprosad , (1911) 33 A. 773.

(v) Umar Din , (1915) 23 P. R. 1915; 10 Cr. L. J. 088: 30 I. C. 731.

(w) Jhulan Sain , (1913) 40 C. 548 (551) ; 17 C. \V. N. 534.

SEC. 298]

OFFENCES RELATING TO RELIGION

505

Where certain persons by- using their influence prevented the grave-digger
from digging a grave for the corpse of complainant’s son on account of the
complainant not having joined the Khilafat party, it was held that they were not
guilty for having offered an indignity to a human corpse (x).

298. Whoever, with deliberate intention of wounding the
1T .. . . . religious feelings of any person, utters any

with deliberate intent to word or makes any sound m the hearing ot
wound religious feel- that person or makes any gesture in the
sight ot that person, or places any object in
the sight of that person, shall be punished with imprisonment
of either description for a term which may extend to one year,
or with fine, or with both.

The framers of the Code observe : “ In framing clause 282 (this section) we
had two objects In view. We wish to allow all fair latitude to religious discussion,
and at the same time to prevent the professors of any religion from offering, under
the pretext of such discussion, intentional insult to what is held sacred by others.
We do not conceive that any person can be justified in wounding with deliberate
intention the religious feelings of his neighbours by words, gesture or exhibition.
A warm expression dropped in the heat of controversy, or an argument urged by a
person not for the purpose of insulting and annoying the professors of a different
creed, but in good faith or the purpose of vindicating his own, will not fall under
the definition contained in this clause ” (y).

Procedure s — Non-cognizable— Summons— Bailable— Compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at *

with deliberate intention of wounding the religious feelings of XY uttered the

words (specify it) in the hearing of , (or made a sound, to wit ,

in the hearing of , or made a gesture, to wit ,

in the light of ; or placed any object, to wit in the

light of ) and thereby shall be punished under s. 298, I. P. C.,

and within my cognizance.

And I hereby direct that you be tried on the said charge.

Uttering words, etc., with deliberate intent to wound religious feelings :

— Where the accused threw down a shoe among certain Hindus seated to a caste
dinner, in consequence whereof the latter considering their food poluted left eating,
it was held that they could not be convicted under this section (z).

(x) Asmanat , (1021) 20 A. L. J. 03.

(y) Note J.

(z) Motilal, (1001) 24 A. 155;'

THE INDIAN PENAL CODE

[ CHAP. XVI

906

CHAPTER XVI.

Of Offences affecting the Human Body.

Of Offences affecting Life.

299. Whoever causes death by doing an act with the
Culpable homicide. jntcntjon of causing death, or with the
intention of causing such bodily injury as
is likely to cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of culpable homi-
cide.

Illustrations.

(a) A lays sticks and turf over a pit, with the intention of thereby causing death,
or with the knowledge that death is likely to be thereby caused. Z, believing the
ground to be firm, treads on it, falls in and is killed. A has committed the offence
of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it. A, intending to
cause, or knowing it to be likely to cause, Z's death induces B to fire at the bush. B
fifes and kills Z. Here B may be guilty of no offence; but A has committed the
offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind
a bush, A not knowing that he was there. Here, although A was doing an unlaw-
ful act, he was not guilty of culpable homic ide, as he did not intend to kill B, or cause
death by doing an act that he knew was likely to cause death.

Explanation 1. — A person who causes bodily injury to
another who is labouring under a disorder, disease or bodily
infirmity, and thereby accelerates the death of that other, shall
be deemed to have caused his death.

Explanation 2. — Where death is caused by bodily injury,
the person who causes such bodily, injury shall be deemed to
have caused the death, although by resorting to proper remedies
and skilful treatment the death might have been prevented.

Explanation 3. — The causing of the death of a child in the
mother’s womb is not homicide. But it may amount to culpable
homicide to cause the death of a living child, if any part of that
child has been brought forth, though the child may not have
breathed or been completely born.

“ It is to be borne in mind that the definitions, penal provisions, and illus-
trations of this Chapter (as of all the other Chapters) of the Code, must be under-
stood subject to the general exceptions, contained in the 4th Chapter. Many things
which cause death or hurt or otherwise affect injuriously the human body, are by
virtue of those exceptions, exempt from punishment, and therefore, are not offences
within the Code.*’

* ' Of offences affecting life : — “The first portion of the Chapter of offences
against the body, consists of those offences which affect human life. As this is the
most important division of the Chapter, the attention of the reader must be
especially given to those General Exceptions which shew when the causing of the
death of a human being is not an offence. Homicides, which in their circum-
stances can be brought within any one of the General Exceptions cannot, it is

SEC. 299] OFFENCES AFFECTING THE HtIMAN BODY 507

needless to state, be deemed culpable homicide within the definftion given in s. I
of the present Chapter. Those homicides which are not culpable, and therefore
not offences, may be generally described as being (1) Accidental, or (2) Justifiable^

" I. Accidental homicide is, where death is caused by accident or misfortune
without any criminal intention or knowledge by one who does a lawful act in a lawful
manner and with proper care and caution. See s. 80, ante .

“ There may sometimes be great difficulty in giving any legal certainty to such
vague terms as ‘accident*, * proper care and caution,' and others which occur in this
General Exception. But it is nevertheless the duty of the Court to ascertain in
each case after a careful consideration of the facts, what is their true meaning as
applied to those facts.

“ Suppose A and Z engage in some game or sport together, in the course of
which A unintentionally causes Z's death. If the sport is not dangerous, and is
likely to cause no harm or only very slight harm ( see s. 95), A has committed no
offence. But, if the sport is a very dangerous one, carried on roughly and care-
lessly, — or if ill-will to the deceased person is proved, or unfair play, or such undue
advantage taken in the course even of a harmless pastime, the Court will probably
conclude that A , having caused Z's death in a cruel or unusual manner^ has
committed either the offence of culpable homicide or some other offence.
See s. 87.

“ Again suppose a parent whips his child and death follows the whipping.
The Court, having ascertained satisfactorily that the punishment wap not of a cruel
or unusual kind, but was only such moderate chastisement as the law allows to a
parent for the child’s benefit, would doubtless decide that the death of the child
was caused by accident or misfortune, and that the father had committed no
offence. See s. 89.

“ In these and similar instances it is the duty of the Court first to ascertain,
and then to apply, the rule of law which is applicable. It must determine the
extent of the power of a parent over his child, — the lawfulness of a particular act,
game, or of the manner in which it is performed or played, — what degree of caution
the law requires in the particular*case under consideration, etc. If A causes B’s
death unintentionally by shooting him with a gun which A did not know to be
loaded, and the question arises whether this homicide is accidental or culpable, —
A, if he proved that he had reasonable grounds to suppose that the gun was not
loaded (as if he had himself discharged it an hour before and put it in a place of
safe custody where he again found it), would probably be deemed to have acted
with proper care and caution. The utmost caution that can be used is not requisite,
— but only that reasonable caution which is usual and ordinary in like cases.

“ 2. Justifiable homicide is where the taking away of life is justified because
it is taken by a judicial act, or in pursuance of a judicial sentence pronounced by
some Court or Judge, — or because it is taken in the exercise of a power given, or
supposed in good faith to be given, by law.

“ The execution of a person who has been duly convicted of murder and
sentenced to be punished with death, is an obvious instance of death warranted
by the sentence of a Court of Justice and therefore justified. *

“ The execution of a criminal in pursuance of the judgment of a Court, even
though the Court had not jurisdiction to pass the judgment, if the executioner
in good faith believed that the Court had such jurisdiction, is also an instance of
justifiable homicide. And not only is the* executioner justified in such a case,
but the Court or Judge passing judgment in the exercise of some anuthority which
they believe in good feith, to, fee conferred by law, are equally justified.

508

THE INDIAN PENAL CODE

[CHAP. XVI

“ Where life is taken in the exercise of a power given to a person by law,
without any judicial act or order, the homicide is equally justifiable. Thus in the
exercise of the right of private defence the causing of death, is in many cases,
justifiable. See Chapter IV, Ss. 96- 1 06.

44 It is also justifiable where a person in good faith believes himself bound by
law to do an act which causes death. For instance, the soldier who fires on a mob
by the order of his superior officer and thus causes the death of an innocent person,
is justified. And it may be under peculiar circumstances that an officer of justice
in hot pursuit of a criminal, whom he has authority to arrest, would be held justified
for an act intended only to stop the flight, but which may have caused, and been
likely to cause, the fugitive’s death.

44 It is also justifiable in certain cases to cause a person’s death for the purpose
of avoiding or preventing further loss of life. See s. 81.

" Of some of these kinds of justifiable homicide, it may be observed that the
conduct of both the slayer and the person slain in each case requires the most
careful examination. The justification of the taking away of human life by private
persons ought to be confined strictly within those limits which are compatible with
the instincts of nature, the security of society, and the due administration of public
justice ” (a).

Stephen says : ” Homicide is the killing of a human being by a human being.

44 A child becomes a human being within the meaning of this definition when
it has completely proceeded in a living state from the body of its mother, whether
it has or has not breathed, and whether the navel string has or has not been divided,
and the killing of such a child is homicide whether it is killed by injuries inflicted
before, during, or after the birth.

44 A living child in its mother’s womb, or a child in the act of birth, even though
such child may have breathed, is not a human being within the meaning of this
definition, and the killing of such a child is not homicide ” (b).

Foster says : “ 1 shall consider the law torching homicide under the follow-
ing distinctions.

It is either occasioned by accident, which human prudence could not foresee
or prevent. —

Or it is found in justice ;

Or in necessity ;

Or it is owing to a sudden transport of passion which, through the benignity
of the law, is imputed to human infirmity ; or it is founded in malice ” (c).

One should be careful in applying the English law, as the English law and
the Indian law approach 4 Culpable homicide ' from different standpoints, although
in many cases the result arrived at is the same. In England, the nature and charac-
ter of the act is the determining factor. In India, the nature or the character of the
act is immaterial. Indian law judges whether or not the act caused death and was
done with the intention or knowledge of causing death.

4 Whoever causes death V-' The word ‘ death ' denotes the death of a human
being. ^ (s. 46).

44 Malice may be exerted against a party in his absence ; as where A lays poison
for B in his victuals, which B afterwards takes and dies. So where A procures an

(a) Morgan and Macpherson, * Penal Code ■ pp. 221 -224.

(b) Stephen's * Digest of Criminal Law, ' Sigrtfe Edition, Article 23S.

(c) Foster^ ‘ Crown Law/ p. 255.

SEC. 299] OFFENCES AFFECTING THE HUMAN BODY 509

idiot or lunatic to kill B, which he does. In both instances A is guilty of the murder
as principal, and B is merely an instrument.

M If one persuade another to kill himself, the adviser is guilty of murder. The
same, if he kill the party by his own command " (d).

As Lord Hale says : “ If a man, either by working upon the fancy of another,
or possibly by harsh or unkind usage, puts another into such passion of grief or
fear that the party either dies suddenly or contracts some disease whereof he dies,
this may be murder or manslaughter in the sight of God, but not in foro humano ,
because no external act of violence was offered, whereof the common law can take
notice and secret things belong to God ” (e).

Where S with the intention of killing N gave him poisoned sweetmeat, N
after eating a little threw the rest away and this was picked up by R who ate it and
died, the Madras High Court held that this section does not require that the offender
should intend to kill (or know himself to be likely to kill) any particular person.
It is enough if the accused 4 causes the death ' of any one by doing an act with the
intention of * causing death * to any one whether the person intended to be killed
or any one else. This is clear from the first illustration . Nor is it necessary that the
death should be caused directly by the action of the offender, without contri-
butory action by the person whose death is caused or by some other person. Con-
tributory action by a third person will not necessarily prevent the act of the offender
from being culpable homicide, even if the death could not have occurred without
such contributory action, is clear from the second illustration. The accused S
was held guilty of murder (f).

Where a person intending to kill one person kills another person by mistake,
he is as much guilty of murder as if he killed the person whom he intended to kill.
The intention of 4 causing death ' is not the intention of causing death to any
particular person (g). Where the accused sent sweetmeats containing arsenic to A
with the intention of causing her death, B and C also share the sweetmeats with
A and although all three of them became ill, none of them died, it was held that the
accused was guilty of an attempt to murder not only A but also B and C (h). The
Allahabad High Court has held tha* if two or more persons are found to have had
a common intention of 'causing such bodily injury as is likely to cause death * and
such bodily injury is caused resulting in death, both of them are guilty of the
offence of culpable homicide not amounting to murder. It is immaterial which
of these persons caused the particular injury which directly led to the death of the
injured man (i). Where the accused assaulted by kicks, blows, and slaps his wife
who became unconscious, and thinking her to be dead he hung her up to give an
appearance of suicide, but the medical evidence showed that she died of hanging,
held that the accused could not be convicted under s. 302, as there was no inten-
tion to kill her and as he thought that she was already dead. He was convicted
under s. 328 (j). Where the accused struck the deceased three blows on the head

(d) L East. P. C. 228.

(e) 1 Hale. P. C. 429.

(f) Suryanarayana Murathv . (1912) 22 M. L. J. 333 (336) : (1912) M. W. N.
136 : 13 I. C. 833.

(g) Jeoni, (1916) 39 A. 161 : 13 A. L. J. 13 : 17 Cr. L. J. 505 : 36 I. C. 473,

following Public Prosecutor v. Survanarayana Muvathy, (1912) 22 M.I..J 333.

(b) Ladha Singh, (1920) 3 L. L. J. 191 : 22 O .L. J. 194 : 60 I. C. 50 (Lab.).

(i) Bhola Singh , (1907) 29 A. 282 : (1907) A. W. N. 51 : 4 A. L. J. 207 : 5 Cr.

L. J. 130, followed in Chandan Singh, (1918) 40£A. 103, but this view was not approved
of in Gulab , (1918) 40 A. 686 : 16 A. L. J. 731 : 19 Cr. L J. 953 : 47 1. C. 805 ; Ram
Newaz, (1913). 35 A. 506 : 11 A. L. J. 804 : 21 I. C. 663 : 14 Cr. L. J. 615 and Hanu -
man , (1913) 35 A. 560 : 11 A. L. J. 926 : 14 Cr. L. J. 685 ; Kedar . (1923) 26 Cr. L. J.
76 : 83 I. C. 630 : A, 1. R (1925) Oudh 284.

(j) Dalu Sardar t (1914) 18 C. W. N. 1279 : 15 Cr. L. J. 709; 26 I. C. 157.

510

THE INDIAN PENAL CODE

[CHAP. XVI

with a stick with the intention of killing him, the deceased fell down senseless on
the ground ; the accused believing that he was dead, set fire to the hut in which he
was lying with a view to remove all evidence of the crime ; the medical evidence
showed that the injuries inflicted by the accused were not likely to cause death and
did not in fact cause death, and that death was caused by the fire which was set to
the hut, the Bombay High Court held that the accused was guilty under s. 307 (k).

The first clause of this section requires the intention of causing death ; the third
clause requires a knowledge that he is likely by such act to cause death — where an
accused struck his wife a blow on her head with a plough-share which though not
shewn to be a blow likely to cause death, did in fact render her unconscious^ and
believing her to be dead, in order to lay the foundation of a false defence of suicide
by hanging, the accused hanged her on a beam by a rope and thereby caused her
death by strangulation, the Madras High Court by a Full Bench held that the
accused was not guilty of either murder or culpable homicide not amounting to
murder and the accused was convicted under s. 326 (1).

* by doing an act* : — Although this section only speaks of acts done, s. 32,
supra , says 4 (excepts) where a contrary intention appears from the context, words
which refer to acts done extend also to illegal omissions).’ In the Code as originally
framed the definition ran thus : — 44 Whoever does any act or omits what he is legally
bound to do with the intention etc.” So the Authors of the Code observe:
” When acts are mace punishable on the ground that those acts produce, or are
intended to produce, or are known to be likely to produce certain evil effects, to what
extent ought omissions which produce, which are intended to produce, or which
are known to be likely to produce the same evil effects to be made punishable?

44 Two things we take to be evident ; first that some of these omissions ought
to be punished in exactly the same manner in which acts are punished. It will
hardly be disputed that a gaoler who voluntarily causes the death of a prisoner by
omitting to supply that prisoner with food, or a nurse who voluntarily causes the
death of a prisoner by omitting to supply that prisoner with food, or a nurse who
voluntarily causes the death of an infant entrusted to her care by omitting to take
it out of a tub of water into which it has fallen, ought to be treated as guilty of
murder. On the Other hand, it will hardly be maintained that a man should be
punished as a murderer because he omitted to relieve a beggar, even though there
might be the clearest proof that the death of the beggar was the effect of this omis-
sion, and that the man who omitted to give the alms knew that the death of the
beggar was the effect of the omission. It will hardly be maintained that a sur-
geon ought to be treated as murderer for refusing to go from Calcutta to Meerut
to perform an operation, although it should be absolutely certain that this surgeon
was the only person in India who could perform it, and that if it were not performed
the person who required it would die. It is difficult to say whether a Penal Code
which should put no omissions on the same footing with acts, or a Penal Code which
should put all omissions on the same footing with acts, would produce consequences
more absurd and revolting. There is no country in which either of these principles
is adopted. Indeed, it is hard to conceive how, if either were adopted, society
could be held together.

44 It is plain, therefore, that a middle course must be taken. But it is not easy
to determine what that middle course ought to be. The absurdity of the two
extremes is obvious. But there are innumerable intermediate points ; and wherever
the line of demarcation may be drawn it will, we fear, include some cases which
we might wish to exempt and will exempt some which we might wish to include
“What we propose is this, that where acts are made

(k) Khanduvalad Bhavani , (1800) 15 Bom. 194.

(l) In re . Palani Gounden , (1919) 42 M. 547 (F. B.) : 37 M L 1 17: (1919)
M. W. N. 340 : 26 M. L. J. 68 : 10 L. W. 45 ; 20 Cr. L. J. 404 : 51* I. C.164.

SEC. 299] OFFENCES AFFECTING THE HUMAN BOBy 511

punishable on the ground that they have caused, or have been intended to cause,
or have been known to be likely to cause, a certain evil effect, omissions which
have caused, which have been intended to cause, or which have been known likely
to cause the same effect, shall be punishable in the same manner ; provided that
such omissions were on other grounds illegal.

“ An omission is illegal if it be an offence, if it be a breach of some direction of
law, or if it be such a wrong as would be a good ground for civil action.

We cannot defend this rule better than by giving a few illustrations of the
way in which it will operate. A omits to give Z food and by that omission volun-
tarily causes Z % s death. Is this murder? Under our rule it is murder if A was
Z’s gaoler, directed by the law to furnish Z with food. It is murder if Z was
the infant child of A t and had therefore a legal right to sustenance, which right a
civil Court would enforce against A. It is murder if Z was a bed-ridden invalid,
and A a nurse hired to feed Z. It i* a murder if A was detaining Z in unlawful
confinement, and had thus contracted a legal obligation to furnish Z, during the
continuance of the confinement, with necessaries. It is not murder if Z is a beggar
who has no other claim on A than that of humanity.

44 A omits to tell Z that a river is swollen so high that Z cannot safely attempt
to ford it, and by this omission voluntarily causes Z*s death. This is murder, if
A is a peon stationed by authority to warn travellers from attempting to ford the
river. It is murder, if A is a guide who had contracted to conduct Z. It is not
murder if A is a person on whom Z has no other claim than that of humanity.

“ A savage dog fastens on Z. A omits to call off the dog, knowing that if the
dog be not called off it is likely that Z will be killed. Z is killed. This is murder
in A, if the dog belonged to A t inasmuch as his omission to take proper order with
the dog is illegal. But if A be a mere passer-by it is not murder ” (m).

Every illegal omission cannot be charged as 4 causing death ' So Stephen
observes —

“ Hence, in order to ascertain what kinds of killing by omission are criminal,
it is necessary, in the first place, to,ascertain the duties which tend to the preserva-
tion of life. They are as follows A duty in certain cases to provide the necessaries
of life ; a duty to do dangerous acts in a careful manner, and to employ reasonable
knowledge, skill, care and caution therein ; a duty to take proper precautions in deal-
ing with dangerous things : and a duty to do any act undertaken to be done, by
contract or otherwise, the omission of which would be dangerous to life’* (n).

In order to constitute an offence under this section it must be a wilful omis-
sion of a duty which is cast upon a person by law fo). If a mistress culpably
neglects to supply proper food and lodging to her servant, at a time when the servant
is reduced to such an enfeebled state of rody or mind as to be helpless and unable
to take care of herself, or is so undet; the dominion and restraint of the mistress, as
to be unable to withdraw herself from her control and the death of the servant is
caused or accelerated by such neglect, the mistress is liable to be convicted of
manslaughter (p). If game-keepers attempt to apprehend a gang of night poachers,
and one of the game-keepers be shot by one of the ooachers, this will be murder
in all the poachers, unless it be proved that either of them separated himself from
the rest so as to shew that he did not join in the act (q).

(m) Note M.

(n) Stephen. 1 Criminal Law, 1 10.

(o) Shepherd , (1882) 31 L. J. N. S. M. C. 102.

(p) Smith , 34 L. J. M. C. 133.

(q) Edmeads , (1828) 3 C. and P. 390 ; Howell, (1840) 9 C. and P. 523.

512 THE INDIAN PENAL CODE [CHAP. XVI

/with the intention of causing death * r— Intention or knowledge that
the act is likely to cause death is the gist of the offence.

Under the Penal Code, no constructive but an actual intention to cause death
is required to constitute murder. Thus, where a lad of 15 years, in course of dis-
covery of the deceased in the act of adultery with a near relative's wife, and without
the use of any lethal or other weapon joined that relative in committing an assault
on the deceased who died from the effects thereof, held that the offence committed
was culpable homicide not amounting to murder fr).

The presumption of law is that a man intends the natural and inevitable
consequence of his own acts (s). Mukerji, J., in Hazrat Gul Khan's case (t) observed
that the presumption that one must be taken to intend the natural or probable con-
sequence of his act— a rule of English criminal law which originally put a rule of
evidence has now acquired the dignity of a legal axiom, but which it is not always
quite easy to apply to the Indian criminal law in view of the distinction that the
Indian Penal Code makes between intention and knowledge.

If a person strikes another on a vital part with a cutting instrument;^!* striker
should be presumed to have intended to cause bodily injury sufficient in the ordi-
nary course of nature to cause death; but it does not follow that the striker must
be found guilty of murder ; his act may fall within one of the exceptions to s. 300(u).

• with the intention of causing such bodily injury as is likely to cause
death 9 : — The difference between this clause and the preceding clause (with the
intention of causing death) is evidently a degree of criminality (v).

Evidence of intention must be gathered from the act itself. As Lord Ellen-
borough, C. J. f observed : “ It is a universal principle that when a man is charged
with doing an act of which the probable consequence may be highly injurious, the
intention is an inference of law resulting from the doing of the act " (w).

The Authors of the Code observe : We long considered whether it would
be advisable to except from this definition any description cf act or illegal omissions,
on the ground that such acts or illegal omissions do not ordinarily cause death, or
that they cause death very remotely. We have determined, however, to leave the
clause in its present simple and comprehensive form.

“There is undoubtedly a great difference between acts which cause death
immediately and acts which cause death remotely ; between acts which are almost
certain to cause death, and acts which cause death only under very extraordinary
circumstances. But that difference, we conceive, is a matter to be considered by
the tribunals when estimating the effect of the evidence in a particular case, not by
the legislature in framing the general law. It will require strong evidence to prove
that an act of a kind which very seldom causes death very remotely, has actually
caused death in a particular case. It will require still stronger evidence to prove
that such an act was contemplated by the person who did it likely to cause death.
But if it be proved by satisfactory evidence th|it death has been so caused, and has
been caused voluntarily, we see no reascu>%r Exempting the person who caused it
from the punishment of voluntary culpable homicide ” (x).

Where a body of six persons attacked another with cattle goads in a violent
and determined manner, inflicting sixteen wounds on his body and causing several

(r) GurrebooUah, (1866) 5 W. R. (Cr.) 42. “ ~

(s) (1886) 1 Weir 300.

(t) Huzral Gul Khan , (1927) 32 C. W. N. 345 : 47 C. L. j. 240 (249 Sc 250) •

I. R. (1928) C. 430 ; Gahbar Pande, (1927) 7 p. 638 (643) : 29 Cr. L. J. 17

(u) Kolia, (1914) 7 Bur. L. T. 290 : 15 Cr. L. J. 513 : 24 I. C. 601.

(v) Nga Min Po, (1900) 7 Eur. L. R. 247 : I. U. B. R. 288.

(w) Dixon , 3 M. and S. 11 (15).

(x) Note M.

SEC. 299] OFFENCES AFFECTING THE HUMAN BODY 513

and severe ruptures of his spleen and so caused his death, it was held that the offence
committed by the accused is murder and that such acts, committed by several per-
sons on one in such a manner, apparently regardless of the consequences and with
such results» warranted the inference that the acts done by the accused were done
with the intention of causing death or with the knowledge that it was likely to cause
death (y).

In the case of certain classes of injuries resulting in death, e.g., injuries of
which death is not a natural or ordinary consequence, to support a conviction for
murder there must be a specific finding of the intention to cause death (z).

Where in committing a dacoity the accused stuffed a cloth into the deceased*s
mouth in order to silence him and not with any idea of killing him, it was held that
the offence was not murder hut one punishable under s. 304 (a).

Where the accused gave blows on the head of the deceased with sticks and
they intended or knew themselves to be likely to smash their victim's skull, held
that they, must be taken to have known that they were likely to cause the death
of the viififn, and were, therefore, guilty of culpable homicide not amounting
to murder (b).

The Patna High Court has held that the accused in order to come under this
section must do something which a reasonable person would contemplate as being
likely to cause injury which would result in the death of the deceased. Thus where
a youth of 18 without any ancillary violence had sexual intercourse with a well-
developed girl probably under 12 years of age without her consent, with the result
that her vagina was ruptured and she died of shock, held that as death was not the
natural consequence to be expected from a simple sexual intercourse the accused
was not guilty under s. 304 (c).

‘ with the knowledge that he is likely by such act to cause death ’

In judging of knowledge had by the accused, the Court must consider the cir-
cumstances : the blow that to one person, or under ordinary circumstances, may
nol, in the ordinary course of nature, be likely to cause death, may yet be immi-
nently dangerous to another or under special circumstances.

To kick a girl of tender age with* such force as to produce a rupture of the
abdomen in a healthy subject, appears to be an act of such a character that no
reasonable man could be ignorant of the likelihood of its causing death (d). Whe-
ther the act amounts to murder or not will depend on the intention or knowledge
which the offender had in regard to the person intended or known to be likely to
be killed or injured, and not with reference to the person actually killed (fe). A
person striking another with a highly lethal weapon like a sharp dao and inflicting
dangerous injuries must be considered to have known that such injuries were likely
to cause death ; and therefore although the prisoner had no intention of killing the
child by a blow intended for the ngipttyer he 'Would be punishable for culpable
homicide under s. 301 (f). A person^ho ^ministers a well-known poison like
arsenic to another must be taken to ktiptf jj&at his act is so imminently dangerous
that it must in all probability cause death of such bodily injury as is likely to cause

(y) Elem Molla , (1907) 37 C. 2115.

U) Muvala Kondaiya, (1881) I Weir 300.

(a) In re. Sengoda Gottndev , (1915) 18 M. L. T. 103 ; (1915) M. W. N. 021 : 10
Cr. L. J. 014 : 30 I. C. 438.

(b) Mana, (1930 ) 32 Bom. L. R. 1 143.

(c) Shambhu Khetri, (1924) 3 P. 410.

(d) Ketabdi Mondal , (1879) 4jC. 764.

(e) Public Prosecutor v. Mushonooru Surayanarayana, (1912) 22 M. I-. J. 33 ;
(1912) M. W. N. 136 : 11 M. L. T. 127 : 13 Cr. L. J. 145 : 13 I. t\ 833

(f) Phomonee Ahum , (1867) 8 W. R. (Cr.) 78 ;

39

514

THE INDIAN PEjNAL CODE

[CHAP. XVI

death, and if death ensues, he is guilty of murder (g). Where accused suspected
his wife of criminal intimacy with another man, waylaid her as she was returning
with two other women, attacked her with a clasp knife with a^ Hade five inches
long and three-fourth of an inch broad, and inflicted several injuries, one of which
proved fatal, while she ran up to the deceased, her aunt, for protection and accused
plunged the knife into the deceased’s back, it was held that the accused was guilty
of culpable homicide as he had no intention of killing the deceased (h). Where
R struck G three blows with a lathi, one blow fractured the bones of the left fore-arm,
another fractured a bone in the right hand, while the third fractured both bones
of the left leg, and in consequence of the third injury gangrene supervened, it
was held that R was guilty either of culpable homicide not amounting to murder
or of causing grievous hurt (i). Where four persons set upon an unarmed man,
knocked him down and gave him a most merciless thrashing with sticks breaking
his bone and ribs and causing the fracture of his skull which resulted in his death,
it was held that the assailants must be considered to have committed these acts with
the intention either of causing death or of causing such injuries as they knew to be
likely to cause death and that therefore they were guilty of murdef* (j). The
infliction of eight severe wounds on the face of the deceased with a hatchet is a clear
indication that something more than mere disfigurement was intended by the person
who inflicted the wounds and the latter must be taken to have intended to cause
the death of the deceased or to cause such bodily injuries as he knew to be likely
to cause death (k).

Bona fide belief that the object struck is not a human being but some*
thing supernatural Where the culpability of the accused consisted in striking
deadly blows without taking the slightest precaution with the view of ascertaining
whether the object of which he struck was a human being or not, the Allahabad High
Court on appeal set aside the conviction of murder and convicted the accused of
culpable homicide holding aa follows : — “ The general principle of law seems to
us to be that if a man strikes deadly blows and is so negligent that he takes no
reasonable means to satisfy himself as to whether he is striking at a man or not, and
the death of a human being ensues, he is guilty of killing, which has no legal justi-
fication or excuse, and therefore amounts to the culpability which is necessary to
show the commission of the crime of culpable homicide not amounting to murder.
In other words, it removes the case from the category of death by misadventure or
justifiable homicide ” (1).

Accepting risk Where a man of full age, (i. e., above 18 years) submitted
hims^f to emasculation, performed neither by a skilful hand, nor in the least
dangerous way, and dies from the injury, the persons concerned in the act are
guilty of culpable homicide not amounting to murder (m). Where a Kabiraj
operated on a man for internal piles by cutting them out with an ordinary knife
and the man died from haemorrhage, the Kabiraj was charged under s. 304-A, it
was held that the prisoner was rightly convicted unde s. 304-A (n). Where the
accused who professed to be snake-charmers persuaded the deceased to allow

~ (g) Gouri Shan her, (IBIS) 40 A: 300 : 16 A. L. J. 178 : 19 Cr. L. J. 382 : 44

I. C. 681.

(h) In re. Penimal Naicken , (1912) M. W. N. 193 : 13 Cr. L. J. 129: 13 I. C.

817.

(i) Rama Singh, (1920) 42 A. 302.

(j) Samand Singh , (1918) 3 P. R. (1919) (Cr.) : 6 P. W. R. (1919) (Cr.) : 20 Cr.
L. J. 157 : 49 I. C. 349, distinguished in Belt, A. I. R. (1925) Lah. 621.

(k) Kutab AH, (1911) P. R. No. 14 of 1911 (Cr.) : P. W. R. No. 42 of 1011 (Cr:) :

12 Cr. L. J.597: 12 1. C. 973. ; v

(l) Kangla, (1898) A. W. N. 103.

(m) Baboolum Hijraj , (1850) 5 W. R. (Cr.) 7.

(n) Sukaroo Kabiraj, (1887) 14 C. 500.

SEC. 299 ] OFFENCES AFFECTING THE HUMAN BODY 615

themselves to be bitten by a poisonous snake, inducing them to believe that
they had power to protect them from harm, it was held that the offence would
have been murder under s. 300 if under the circumstances of the case, it did
not fall within the 5th exception (q).

Where the prisoner by gripping and squeezing the testicles of her husband the
deceased reduced them to a pulpy condition thereby causing an injury which re-
sulted in death due to the shock so inflicted on the nervous system, it was held that
the death was a probable consequence of the prisoner’s act and she was guilty under
s. 304, I. P. C. (p). Where in a sudden quarrel with the deceased the accused
woman seized him by the testicles and squeezed them with considerable force and
for a considerable time, the former who was in a very unsound bodily condition
from the shock of the pain died soon after, and the medical evidence showed that
the injury inflicted by the accused upon the deceased would not in normal condi-
tions have endangered his life, it was held that she was guilty only of causing simple
hurt (q).

Possessed by evil spirit Where accused believing the deceased to be
possessed by an evil spirit, beat her to death in the hope of curing her and the
deceased protested that she was not possessed and did not consent to be beaten,
it was held that the accused was guilty of an offence under the second part of
8. 304 (r). Where the accused in exorcising the spirits of a girl whom they believed
to be possessed but who did not consent to violence, beat her and thereupon she
died, it was held that the accused was guilty of culpable homicide and was con-
victed under the last part of s. 304 (s).

Explanation 1. — This Explanation is in accordance with the English law
but it must be read with illustration ( b ) to s. 300 which alters the law laid down in
1 Hale, 428.

If a person was suffering from an injury which would render injury, which
would not have a fatal effect to one ordinary man, fatal to that person, it does not
necessarily follow, as it would in the case of a healthy man, that the person inflicting
those injuries knew it to be likely that death would be caused thereby. The
Calcutta High Court held that the Sessions Judge in not pointing out this to the
Jury misdirected them (t). *

Enlarged spleen and liver : — Where the deceased was suffering from a
diseased spleen and the weapon used was a light bamboo stick held , when there is
neither intention, knowledge, nor likelihood that the injury inflicted in an assault
will or can cause death, the offence is not culpable homicide not amounting to
murder, but grievous hurt (u). Where a person hurt another, who was suffering
from spleen disease, intentionally, but without the intention of causing death, or
causing such bodily injury as was likely to cause death, or the knowledge that he
was likely by his act to cause death, and by his act caused death, it was held that he
was properly convicted under s. 323 (v). Where a wife died from a chance-kick
in the spleen inflicted by her husband or* provocation given by the wife, the husband
not knowing that the spleen was diseased, and where it was found that he had no
intention or knowledge that the act was likely ft) cause hurt endangering human
life, it was held that the accused was guilty of the offence under s. 319 and not

(o) Poonia Fattemah , (1860) 12 W. R. (Cr.) 7.

(p) Kaliyani , (1896) 19 M. 356.

(q) Bat Jiba, (1917) 19 Bom. L. R. 824 : 18 Cr. L. J. 1010 : 42 I. C. 754.

(r) Nga Po Tha, (1917) 3 U. B. R. 54 : 19 Cr. L. J. 375 : 44 I. C. 679.

(s) Jamaluddin , (1892) Rat. Unrep. Cr, C. 603.

(t) Ainuddin Chowkidar, (1921) 34 C. L. J. 515 : 23 Cr. L. J. 344 : 66 I. C. 1000.

(u) Megha Meah , (1805) 2 W. R. (Cr.) 39; Madur jolaba , (1867) 8 W. R. (Cr.)
28, where difference between culpable homicide and murder pointed out.

(v) Fox t (1879) 2 A. 522. >

516

THE INDIAN PENAL CODE

[CHAP. XVI

under s. 321 or Ss. 320 and 322 (w). Where the accused took up a brick and threw
it at the deceased from five spaces and it struck the deceased over the spleen which,
being in a diseased state, was ruptured and death ensued and it was found that
the accused had no intention or knowledge that he was likely to cause grievous
hurt, it was held that the offence was one of voluntarily causing hurt (x).

Death from push or kick In the case of a trivial dispute the accused gave
the deceased a severe push on the back which caused him to fall to the road below,
a distance of two and a half cubits and in falling the deceased sustained an injury
from which tetanus resulted which caused his death on the fifth day after the occur-
rence, the Madras High Court held that the case was not one of culpable homicide
not amounting to murder, because there was no likelihood of the result following,
and a fortiori, no designed causing of it (y). Where according to the prisoner s own
confession which was the only evidence against her, she, with a view to chastise her
daughter 8 years old, gave her a kick on the back and two slaps on the face which
resulted in her death, it was held that the conviction should be one under s. 323 (z).

Explanation 2 : — This Explanation is substantially the same as the English
law. As Hale observes : “ If a man receives a wound which is not itself mortal,
but either for want of helpful applications, or neglect thereof, it turns out to a
gangrene or a fever, and that gangrene or fever be the immediate cause of death,
yet this is murder or manslaughter in him that gave the stroke or wound, though
it were not the immediate cause of his death ; yet if it were the immediate cause
thereof, and the fever or gangrene was the mediate cause of his death, yet the
wound was the cause of the gangrene or fever, and so consequently is causa
cawati” (a).

Maule, J., told the jury : “ If the prisoner wilfully, and without any justifiable
cause, inflicted the wound on the party, which wound was ultimately the cause of
death, the prisoner was guilty of murder ; that for this purpose it made no difference
whether the wound was in its own nature instantly mortal, or whether it became the
cause of death by reason of the deceased not having adopted the best mode of treat-
ment ; the real question is, whether in the end the wound inflicted by the prisoner
was the cause of death ? M (b).

The Authors of the Code observe : " We see no reason for excepting such
cases (the cases of persons who die of slight wound which from neglect, or from
the application of improper remedies, has proved mortal). It will, indeed, be, in
general, more difficult to prove that death has been caused by a scratch, than by a
stab which has reached the heart ; and it will in a still greater degree be more
difficult to prove that a scratch was intended to cause death, than that a stab was
intended to cause death. Y et both these points might be fully established. Suppose
such a pise as the following:— It is proved that A inflicted a slight wound on
Z, a child who stood between him and a large property; it is proved that the
ignorant and superstitious servants of Z applied the most absurd remedies to the
wound ; it is proved that under their treatment the wound mortified, and the child
died. Letters from A to a confidant are produced ; in these letters, A congratulates
himself on his skill, remarks that he could not have inflicted a more severe wound
without exposing himself to be punished as a murderer, relates with exhultation
the mode of treatment followed by the people who have charge of Z, and boasts
that he always foresaw that they would turn the slightest incision into a mortal

(w) By sagoo Noshyo, (1867) 8 W. R. (Cr.) 29. — —

(x) Randhir Singh, (1 881 ) 3 A. 597.

(y) Ackarjy’s , (1877) 1 M. 224.

(z) Beshor Bewa , (1872) 18 VV. R. (Cr.) 29.

(a) 1 Hale, P. C. 428.

(b) Holland , (1841) 2 M. and Rob. 3|1 ,

Stic. 300] OFFENCES AFFECTING THE HUMAN BODY

517

wound. It appears to u$ that if such evidence were produced, A ought to be
punished as a murderer" (c).

Explanation 3 s — The Explanation which should be read with s. 315 differs
from the English law and does away with*the great difficulty to prove that the
child killed has a separate independent existence. This Explanation contemplates
that no act done before the birth of a child can amount to 4 culpable homicide.*
S. 315 punishes an act done with intent to prevent child being born alive or cause
it to die after birth. But this explanation says : — " If any part of the child was been
brought forth it may amount to culpable homicide to cause the death of such
child."

Under the English law complete emergence is necessary to constitute the child
a human being. But under this explanation it must be proved not only that the
child breathed and was therefore a living being for it is pointed that the child
breathed while it was entirely in the mother’s womb but that it breathed after it
had wholly or partially emerged from its mother’s womb (d).

300 . Except in the cases hereinafter excepted, culpable
Murder. homicide is murder, if the act by which the

death is caused is done with the intention
of causing death, or —

Secondly . — If it is done with the intention of causing such
bodily injury as the offender knows to be
likely to cause the death of the person to
whom the harm is caused, or —

Thirdly— If it is done with the intention of causing bodily
injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of
nature to cause death, or —

Fourthly .— It the person committing the act knows that
it is so imminently dangerous that it must in all
probability cause death, or such bodily injury as is
likely to cause death, and commits such act without
any excuse, for incurring the risk of causing death
or such injury as aforesaid.

Illustrations.

(а) A shoots Z with the intention of killing him. Z dies in consequence. A
commits murder.

(б) A, knowing that Z is labouring under such a disease that a blow* is likely
to cause his death, strikes him with the intention of causing bodily injury. Z dies
in consequence of the blow. A is guilty of murder, although the blow might not
have been sufficient in the ordinary course of nature to cause the death of a person
in a sound state of health. But if A, not knowing that Z is labouring under any
disease, gives him such a blow as would not in the ordinary course of nature kill »
person in a sound state of health, here A, although he may intend to cause bodily
injury, is not guilty of murder, if he did not intend to cause death or such bodily
injury as in the ordinary course of nature would cause death.

(c)

17 Cr L

Note M.

Mussama t Budko, (1915) P. W. R. No. 46 of 1016 :
J„ 20 : 32 I. C. 148.

P. R. No. 29 of 1915 :

518

tilE INDIAN PENAL CObfe

[CHAP. XVI

(e) A intentionally gives Z a sword-cut or club-wound sufficient to cause the
death of a man in the ordinary course of nature. Z dies in consequence. Here A
is guilty of murder, although he may not have intended to cause Z^s death.

(d) A without arty excuse fires a loaded cannon into a crowd of persons and
kills one of them. A is guilty of murder, although he may not have had a premeditated
design to kill any particular individual.

Exception I . — Culpable homicilde is not murder if the offen-
.... . der, whilst deprived of the power of self-

cide inoTmurder homi control by grave and sudden provocation,

causes the death of the person who gave the
provocation or causes the death of any other person by mistake or
accident.

The above exception is subject to the following provisos : —

Firstly. — That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing
or doing harm to any person.

Secondly. — That the provocation is not given by anything
done in obedience to the law, or by a public servant
in the lawful exercise of the powers of such public
servant.

• • •

Thirdly. — That the provocation is not given by anythifig.
done in the lawful exercise of the right of private
defence.

Explanation. — Whether the provocation was grave and
sudden enough to prevent the offence from amounting to murder
is a question of fact.

Illustvalidns.

(а) A , under the influence of passion excited by a provocation given by Z,
intentionally kills Y, Z ' s child. This is murder, inasmuch as the provocation was
not given by the child, and the death of the child was not caused by accident or mis-
fortune in doing an act caused by the provocation.

(б) Y gives grave and sudden provocation to A . A, on this provocation, fires
a pistol at Y, neither intending nor knowing himself t& be likely to kill Z, who is near
him, but out of sight. A kills Z. Here A has not committed murder, but merely
culpable homicide.

( c ) A is lawfully arrested by Z % a bailiff. A is excited to sudden and violent
passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was
given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z t a Magistrate. Z says that he does not
believe a word of ^’s deposition, and that A has perjured himself. A is moved to
sudden passion by these words, and kills Z, This is murder.

(e) A attempts to pull 2's nose. Z , in the exercise of the right of private defence,
lays hold of A to prevent him from doing so. A is moved to sudden and violent
passion in consequence, and kills Z. This is murder, inasnlhch as the provocation
was given by a thing done in the exercise of the right of private defence.

(/) Z strikes B, B is by this provocation excited to violent rage. A, a
bystander, intending to take advantage of B' s rage, and to cause him to kill Z t puts
a knife into B's hand for that purpose. J3 kills Z with the knife. Here B may have
committed only culpable homicide, but 4 A is guilty of murder. ^

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY 519

Exception 2. — Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of private defence
of person or property exceeds the power given to him by law and
causes the death of the person against whom he is exercising such
right of defence without premeditation, and without any inten-
tion of doing more harm than is necessary for the purpose of such
defence.

Illustration.

Z attempts to horsewhip A t not in such a manner as to cause grievous hurt to
A. A draws out a pistol. Z persists in the assault. A, believing in good faith that
he can by no other means prevent himself from being horsewhipped, shoots Z dead.
A has not committed murder, but only culpable homicide.

Exception 3. — Culpable homicide is not murder if the
offender, being a public servant or aiding a public servant acting
for the advancement of public justice, exceeds the powers given
to him by law, and causes death by doing an act which he, in
good faith, believes to be lawful and necessary for the due dis-
charge of his duty as such public servant and without ill-will
towards the person whose death is caused.

Exception 4. — Culpable homicide is not murder if it is com-
mitted without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender’s having
taken undue advantage or acted in a cruel or unusual manner.

Explanation . — It is immaterial in such cases which party
offers the provocation or commits the first assault.

Exception 5. — Culpable homicide is not murder when the
person whose death is caused, being above the age of eighteen
years, suffers death or takes the risk of death with his own
consent.

Illustration.

A , by instigation, voluntarily causes Z , a person under eighteen years of age,
to commit suicide. Here, on Account of Z’s youth, he was incapable of giving consent
to his own death ; A lias therefore abetted murder.

This section defines murder . It says when culpable homicide is murder and
when not. So the distinction between culpable homicide and murder as noticed
hereafter is important.

Analogous law s— i Murder is a felony at common law. The essential elements
of ‘ murder * are not defined in Statute (24 and 25 Viet., c. 100).

“Murder is the unlawful killing, by any person of sound memory and dis-
cretion, of any person under the King’s peace, with malice afore-thought, either
express or implied by law. This malice afore-thought which distinguishes murder
from other species of homicide is not limited to particular ill-will against the person
slain, but means that the fact has been attended with such circumstances as arc the
ordinary symptoms of a wicked, depraved, and malignant spirit ; a heart regardless
of social duty, and deliberately bent upon mischief. Any formed design of doing
mischief may be called malice ; and therefore not only killing from premeditated
hatred of revenge against the person killed ,* but also, in many other cases, killing

£20

THE INDIAN PENAL CODfc

[CHAP. XVI

accompanied with circumstances that shew the heart to be previously wicked, is
adjudged to be killing of malice afore-thought, and consequently murder.

“ Malice may be either express or implied by law. Express malice is, when one
person kills another with a sedate deliberate mind and formed design evidenced by
external circumstances, which discloses the inward intention ; as lying in wait, ante-
cedent menaces, former grudges, and concerted schemes to do the deceased some
bodily harm. And malice is implied by law from any deliberate cruel act com-
mitted by one person against another, however sudden. Thus where a man kills
another suddenly without any, or without considerable provocation, the law im-
plies malice ; considering that no person, unless of an abandoned heart, would be
guilty of such an act upon a slight or no apparent cause. So if a man wilfully
poisons another the law presumes malice, though no particular enmity can be proved.
And in cases of killing by a wilful act of such a nature as shews the person by whom
it is committed, to be an enemy to all mankind, the law will infer a general malice
from such depraved inclination to mischief. As a general rule, homicide is pre-
sumed to be malicious, and murder, until the contrary appears from circum-
stances of alleviation, excuse, or justification ; and it is incumbent upon the prisoner
to make out such circumstances to the satisfaction of the Court and the Jury, unless
they arise out of his^ evidence produced against him. A defence grounded upon
violent provocation will not avail, however grievous the provocation, if there was an
interval of reflection, or a reasonable time for the blood to cool before the deadly
purpose was effected. And provocation is no answer if express malice
be proved. Thus if a man, having received provocation, deliberately and advisedly
threatens vengeance against the other, as by declaring that he will have his blbod,
or the like, and afterwards carries his design into execution, he is guilty of
murder ; although the killing followed so soon after the provocation that the law
might, apart from evidence of such express malice, have imputed the act to
unadvised passion. But where fresh provocation intervenes between
preconceived malice and the death, it ought clearly to appear that the killing was
upon the antecedent malice ; for if there is an old quarrel between A and B, and
they are reconciled again, and then, upon a new and sudden falling out, A kills B,
this is not murder. But if it appears that thf reconciliation was but pretended or
counterfeit, and that the hurt done was upon the score of the old malice, then such
killing will be murder.

“Where knowledge of some fact is necessary to make a killing ‘ murder,’ and
several persons are concerned in the killing, those who have the knowledge will
be guilty of murder, and those who have it not, of manslaughter only. Thus, if A
assaults B out of malice , and they fight , and A*s servant come to aid his master,
and B is killed. A is guilty of murder ; but the servant, if he knew not of A's malice,
is guilty of manslaughter only ” (e).

Scope : — S. 299 defines * culpable homicide.' ‘ Murder * is defined by
s. 300 and four states of mind are indicated and any one of which is sufficient to
constitute murder where death is caused. The precise significance of these four
several states of mind is sometimes missed, but there is no reason why this should
be, for each mental state is aptly explained by one or other of the four several illus-
trations appended to the section*

But then the section goes on to formulate five exceptions any one of which
suffices to reduce the degree of criminality from murder to culpable homicide not
amounting to murder. These exceptions substantially are these: (1) where the
offender is deprived of the power of self-control by grave and sudden provocation,
(2) where the offender exercises the right of private defence in good faith, (3) were

(e) Russel on Crimes and Misdemeanours, 8th Ed. f Vol. 1, pp. 613, 616.

SEC. 300 ] OFFENCES AFFECTING THE HUMAN BODY 521

the offender is or aids a public servant acting for the advancement of public justice,
(4) where there is a sudden fight and so forth, and (5) where the victim consents (f).

Distinction between culpable homicide and murder For a comparison
between the two sections they are printed in parallel columns.

S. 299. (J) Whoever causes death by
doing an act with the intention of caus-
ing death, 01 * (2) with the intention of
causing such bodily injury as is likely to
cause death or, (3) with the knowledge
that he is likely by such act to cause
death, commits the offence of culpable
homicide.

S. 300. Except, in the cases herein-
after excepted, culpable homicide is
murder, if the act by which the death
is caused is done with the intention of
causing death, or

2 ndly . — If it is done with the inten-
tion of causing such bodily injury as
the offender knows to be likely to
cause the death of the person to whom
the hurt is caused, or

jrdly . — If it is done with the inten-
tion of causing bodily injury to any
person and tlic bodily injury intended
to bo inflicted is sufficient in the
ordinary course of nature to cause
death, or

4thly .~ If the person committing the
act knows that it is so imminently
dangerous that it must, in all proba-
bility cause death, or such bodily
injury as is likely to cause death, and
commits such act without any excuse
for incurring the risk of causing death
or such injury as aforesaid.

Sir Barnes Peacock pointed out the distinction as follows: — “There arc,
in my opinion, several important distinctions between murder and culpable homi-
cide. An offence cannot amount to murder unless it falls within the definition of
culpable homicide : for s. 300 merely points out the case in which ‘ culpable
homicide is murder/ But any offence may amount to culpable homicide without
amounting to murder.

“ Culpable homicide is not murder if the case falls within any of the excep-
tions mentioned in s. 300.

u The causing of death by doing an act with the intention of causing death is
culpable homicide. It is also murder, unless the case falls within one of the ex-
ceptions in s. 300.

M Causing death with the intention of causing bodily injury to any persons
if the bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death, in my opinion, falls within the words of s. 299, * with the
intention of causing such bodily injury as is likely to cause death ’ and is culpable
homicide. It is also murder, unless the case falls within one of the exceptions in
s. 300.

“ Causing death by doing an act with the knowledge that such act is likely to
cause death is culpable homicide, but it is not murder even if it does not fall within
any of the exceptions mentioned in s. 300, unless it falls within clause 2, 3, or 4 of
s. 300 ; that is to say, unless the act by which the death is caused is done with the
intention of causing such bbdily injury as the offender knows to be likely to cause

(f) Per Jenkins, C. J., in U pen dr a Nath Das, (1914) 19 C. W. JN. Odd (F. 13.) at
pp. 662, 683 : 21 C. L. J. 377 : 16 Cr, L. J. p. 561 : 30 1. C. 113.

522

THE INDIAN PENAL CODfe [CHAfr. XVI

the death of the person to whom the harm is caused, or with the intention of
causing bodily injury to any person, and the bodily injury intended to be inflicted
is sufficient in the ordinary course of nature, to cause death, or unless the person
committing the act knows that it is so imminently dangerous that it must in all
probability, cause death, or such bodily injury as is likely to cause death.

In speaking of acts, I, of course, include illegal omissions.

There are many cases falling within the words of s. 299, or with the know*
ledge that he is likely by such act to cause death, that do not fall within the 2nd,
3rd, or 4th clause of s. 300 ; such for instance, as the offences described in Ss. 279,
280, 281, 282, 284, 285, 286, 287, 288, and 289, if the offender knows that his a<ft
or illegal omission is likely to cause death, and if, in fact, it does cause death. But,
although he may know that the act or illegal omission is so dangerous that it is likely
to cause death, it is not murder, even if death is caused thereby, unless the offender
knows that it must in all probability, cause death, or such bodily injury as is likely
to cause death, or unless he intends thereby to cause death, or such bodily injury
as is described in cl. 2 or 3 of s. 300.

As an illustration : suppose a gentleman should drive a buggy in a rash and
negligent manner, or furiously, along a narrow crowded street. He might know that
he was likely to kill some person, but he might not intend to kill any one, or to cause
bodily injury to any one. In such a case, if he should cause death, I apprehend
he would be guilty of culpable homicide not amounting to murder, unless it should
be found, as a fact, that he knew that his act was so imminently dangerous that it
must, in all probability, cause death, or such bodily injury, etc., as to bring the case
within the 4th clause of s. 300. In an ordinary case of furious driving, the facts
would scarcely warrant such a finding. If found guilty of culpable homicide not
amounting to murder, the offender might be punished to the extent of transporta-
tion for ten years, or imprisonment for ten years with fine (see Ss. 304 & 59) ; or,
if a European or American, he would be subject to penal servitude instead of trans-
portation. It would not be right in such a case that the offender should not be liable
to capital punishment for murder. The first part of s. 304 would not apply to the
case. That applies only to cases which would be murder, if not falling within
one of the exceptions in s. 300. If a man should drive a buggy furiously, not
merely along a crowded street, but intentionally into the midst of a crowd of
persons, it would probably be found, as a fact, that he knew that his act was so
imminently dangerous that it must, in all probability, cause death or such bodily
injury, etc., as in cl. 4, s. 300.

From the fact of a man’s doing an act with the knowledge that he is Jikcly
to cause death, it^ may be presumed that he did it with the intention of causing
death, if all the circumstances of the case justify such presumption ; but I should
never presume an intention to cause death merely from the fact of furious driving
in a crowded street in which the driver might know that his act would be likely
to cause death. Presumption must depend upon the facts of each particular case.

Suppose a gentleman should cause death by furiously driving up to a railway
station. Suppose that it should be proved that he had business in a distant part
of the country, say at the opposite terminus, that he was intending to go by a
particular train, and that he could not arrive at his destination in time for his busi-
ness by any other train ; that at the time of the furious driving it wanted only two
minutes to the time of the train’s starting ; that the road was so crowded that he
must have known that he was likely to run over some one and to cause death ;
would any one under the circumstances presume that his intention was to cause
death? Would it not be more reasonable to presume that his intention was to
save the train ? If the Judge or Jury should find that his intention was to save the
train, but that he must have known that he was likely to cause death, he would be
guilty of culpable homicide not amounting to murder, unless they should also

SEC. 300] OFFENCES AFFECtING T«E HUMAN BODY 523

find that the risk of causing death was such that he must have known and did know,
that his act must, in all probability, cause death, etc., within the meaning of cl. 4,
s. 300.

“ If they should go further and infer from the knowledge that he was likely
to cause death, he would be guilty of murder and4iable to capital punishment “ (g).

“ From a comparison of s. 299 with s. 300 it appears that, if death is caused
*by doing an act with the intention of causing death, the offence committed is
murder unless it happens to fall within the exceptions to s. 300. It is also clear
that if an act is done with the knowledge that the doer is likely by such act to cause
death, the offence is culpable homicide unless the act done is so imminently
dangerous that it must in all probability cause death and is committed without any
excuse in which case the offence is ‘ murder.’ If the act is done with the inten-
tion of causing such bodily injury as is likely to cause death, the offence is culpable
homicide unless the offender knows that the act done is likely to cause the death
of the person to whom the harm is caused or if the bodily injury is sufficient in the
ordinary course of nature to cause death. It thus appears that the first part of s. 299
corresponds to the first clause of s. 300 ; the second part of s. 299 to the second and
third clauses of s. 300 ; and the third part of s. 299 corresponds to the fourth clause
of s. 300. Little difficulty arises in the case of the first part of s. 299 and the first
clause of s. 300. Generally speaking the offence committed, where the intention
is to cause death, is murder unless it comes within one of the exceptions. The
second clause of s. 300 differs from the second part of s. 299 in that stress is laid on

the knowledge of the offender that he is likely to cause death by the act done

The third clause of s. 300 differs from the second part of s. 299 in a matter of
degree only. If the bodily injury intended to be inflicted is likely to cause death
it comes within s. 299. If the bodily injury is sufficient in the ordinary course of

nature to cause death, it comes within the third clause of s. 300

The third part of s. 299 and the fourth clause of s. 300 differ from the preceding
parts and clauses respectively, in that intention is not a necessary element of the
offence. All that is needed is a knowledge that the act is likely to cause death. The
third part of s. 299 differs from the second clause of s. 300 by reason of the absence
of intention as a necessary ingredient of the offence. It differs from the fourth
clause of s. 300 again in a matter of degree only ” (h). Straight, J., observed in
Idu Beg's case (i) : “ Putting it shortly, all acts of killing done with the intention to
kill, or to inflict bodily injury likely to cause death, or with the knowledge that
death mufct be the most probable result, are prima facie murder, while those com-
mitted with the knowledge that death will be a likely result are culpable homicide
not%nounting to murder.” Melville, J., in Govindas case (j) compared Ss. 299
and 300 and pointed out the distinction and observed : “ Whether the offence is
culpable homicide or murder, depends upon the degree of risk to human life. If
death is a likely result, it is culpable homicide ; if it is the most probable result, it is
murder.”

Cases -Where an accused struck his wife a blow on her head with a plough-
share which though not shown to be a blow likely to cause death, did in fact render
her unconscious, and believing her to be dead, in order to lay the foundation of a
false defence of suicide by hanging, the accused hanged her on a beam by a rope and
thereby caused her death by strangulation, the Madras High Court by a Full Bench
held that a man is not guilty of culpable homicide if his intention was directed only
to what he believed to be a lifeless body and the accused could not be convicted of

(g) Gora Chand Gope, (18GG) 5 W. R. (Cr.) 45 (F. B.) to the same effect, see
Per Melville, J.. in Govind* ( 1876) 1 B. 342 (344, 346).

(h) Inder Singh , (1928) 10 L. 477 (480 : 482) ; Inder Singh, (1928) 30 Cr. L. J.

141.

(i) (1881) 3 A. 776 (778).

(j) (1876) 1 B. 342 (344, 345).

524

THE INDIAN PENAL CODE

[CHAP. XVI

murder or culpable homicide and in the case coming before the Division Bench,
the accused was committed under s. 326 (k). Where R struck G blows with a
lathi and one blow fractured the bones of the left forearm, another fractured a
bone in the right hand, while the third fractured both bones on the left leg, and
gangrene followed the third injury as a result of which G died, it was held that R
was either guilty ofculpable homicide not amounting to murder or under s. 325 (1).
Where the accused suspected his wife, and made preparations to catch her with the
paramour and the person whom he had employed to keep watch called him outside
his house and showed him the spot where the wife and the paramour were together,
the accused returned to the house, took a solid Sal pole and came upon his wife
and the deceased in the act of intercourse and as the deceased arose he struck him
one blow on the head, killing him on the spot ; the Allahabad High Court held
that the offence was murder, but in consideration of the nature of the provocation
the sentence of death was commuted to transportation for life with a recommenda-
ation to the Local Government to exercise its prerogative of mercy and further
reduce the sentence (m). Where the accused and the deceased having quarrelled
the accused took an iron-shod stick, and struck one blow on the head of the deceased
which caused his death, the accused was convicted of murder. On appeal, the
Bombay High Court held that the offence was not murder but culpable homicide
not amounting to murder as it is possible the blow the accused struck exceeded
in violence the injury he had in view at the moment of striking it (n). Where a
man stabbed his wife in the chest the wound having gone 2\ inches deep and pene-
trating the pericardium so that she bled profusely and died in a very short time
from shock and haemorrhage, the Madras High Court held that in law a man is
held to intend the ordinary and natural consequences of his acts, and when manag-
ing a stab of this kind which is sufficient in the ordinary course of nature to cause
death, the presumption is that he intended to cau?e death and it lies on the offender
to show that such was not his intention (o). Where the accused stabbed a person
with the intention of causing such injury as was likely to cause death and death
supervened, it was held that the accused should be convicted of culpable homicide
not amounting to murder and not under s. 302 (p).

Manslaughter Neglect to provide medical aid Where the father of
the child neglected to call in medical aid and the child died. Lord Coleridge, C. J.,
affirmed the conviction because the Statute 31 and 32 Viet., c. 122, s. 37 provided
for Summary conviction for wilful neglect of children under fourteen years and had
it not been for the Statute he would have entertained great doubt upon the case (q).
In Salmons case (r) the conviction was affirmed where A, B and C went into a field
in proximity to certain roads and all of them fired shots directed at a board withotit
taking proper precautions with the result that a boy who was at a distance of 393
yards from the firing sport was killed (r). It had been held in Goudes case (s)
that a parent, who has the means to supply necessaries, but who negligently, though
not wilfully, withholds from a child food which, if administered, would sustain its

(k) Iv re. Palani Goundtn, '1919) 42 M. 547 (F. B> : 37 M. L. J. 17: (1919)
M. W. N. 340 : 20 M. L. J. 68 : 10 L. \\\ 45: 20 Cr. L J. 404 : 51 1. C. 104, dis-
tinguished in.

' (1) Rama Singh, (1920) 42 A. 302 : IS A. L. ]. 224 : 21 Cr. L. J. 783 : 58 I. C.

463.

(m) Gosain, (1920) 18 A. L. J. 851 : 21 Cr. L. J. 007 : 57 1. C 175.

(n) Sardarkhan Jaridkhan, (19J6) 41 B. 27 : 18 Bom. L. It. 793: 17 Cr. L. J.
530 : 30 I. C. 578.

(o) Sved Batcha Sahib, (1913) M. W, N. 550 : 14 Cr. L. J. 115: 18 I. C. 075.-

(p) Maitng Aung Tan, (1910) 17 Cr. L. j. 544 : 30 I C. 592 (R.).

(q) Reg. v. Downes, (1875) 1 p. 6. D.

(r) (1880) 6 Q. B. D. 79.

(s) (1867) 10 Cox. C. C. 547, to the same eliect see Reg. v. Narrieht , (1838) 8
C. and P. 425 (murder of an aged and infirm woman by not providing food).

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY 525

life, and the child consequently dies, is guilty of manslaughter, but the offence
would be * murder ’ if the parent had wilfully withheld necessary food.

Death from failure of mother to make provision for confinement

To warrant the conviction of a woman for manslaughter of her new-born child,
whose death was caused by want of proper care at birth, it is not enough to show
that such woman was guilty of criminal negligence of purposely arranging to be
unattended at her confinement. She must also be proved to have been further
guilty of negligence towards the child after it was completely born (t). The above
English cases, it may be observed, turned upon the construction of English
Statutes which have no corresponding sections in the Code and as such need not
be further considered.

Clause 1 s — Act by which the death is caused is done with the intention
of causing death : — Act includes illegal omissions (s. 33)— see also commentary
on s. 299, supra .

Clause 2 : — If it is done with the intention of causing such bodily
injury as the offender knows to he likely to cause the death of the person
to whom the harm is caused - See commentary on s. 299.

Death caused by blows : —Two parties met each other in a drunken state and
commenced a quarrel, during which they became grossly abusive to each other.
Thereafter one of them ran to his house and came back with a heavy pestle with
which he struck the other a heavy blow on the left temple as the latter was rising
from the ground, causing instant death. Held that the offence was murder as it
fell within clauses 2 and 3 of this section (u). Where a person snatches up a log
of heavy wood and strikes another with it on the vital part with so much force and
vindictiveness as to cause that person’s death almost on the spot the act must be held
to have been done with the knowledge that it was likely to cause death ; but if it
was done without premeditation in the heat of passion on a sudden quairel, the
offence committed is culpable homicide not amounting to murder (v).

If a man strike another on the head with a stick when he is asleep, and frac-
tures his skull, knowledge of likelihood of causing death must be presumed ; and
that if none of the exceptions undei' this section are pleaded or probable, the offence
committed is murder (w). Where a Judge acquits a prisoner of intention to kill,
but admits that the prisoner struck the deceased with a highly lethal weapon with the
knowledge that the act was likely to cause death, the conviction should be for murder
and not cujpabie homicide not amounting to murder (x). Where four men beat
another^at intervals and so severely that death ensues from the injuries, they must
be presumed to know that by such acts they were likely to cause death and unless
the exceptions are pleaded, the offence is murder which is not reduced to culpable
homicide by the absence of intention (y). When the accused brutally beat a
defenceless man, with whom they had a grudge, but without an intention to kill,
and gate him such a blow that caused his death, the Allahabad High Court held
that they were guilty of murder unless they could show that they were protected by
one of the provisos to this section (z). Where the attack which was made on the
deceased was of a violent and determined character so much so that 16 injuries
were found on his bfedy and his spleen which appeared to have been in a healthy

(t) Rex . v. Izod t (1904) 20 Cox. C. C. 090.

(u) Dasser Bhooyan , (1867) 8 W. R. (Cr.) 71.

(v) Rajoo Ghose, (1867) 7 W. R. (Cr.) 106.

(w) Sheikh Chooley, (1865) 4 W. R. (Cr.) 35.

(x) Sobul Mahee, (1866) 5 W. R. (Cr.) 32 see contra Tayab Sheikh , (I860) 5 W. R.
(Cr.) 2 (F. B.).

(y) Poshoo, (1865) 4 W. R. (Cr.) 33.

(z) Garib, (1019) 17 A, L. J. 985.

526

THE INDIAN PENAL CODE

[CHAP. XVI

condition was ruptured, there was no doubt that the persons who attacked him
either intended to cause his death, or that they attacked him in such a brutal
manner, regardless of the consequences, well knowing that they would be likely
to cause his death (a). Where three persons attack with lathis the blows being
directed at the head they must be imputed with the knowledge that they were
likely to cause death (b). Where the accused came to the punchayat unwillingly,
resented his action and dealt him a blow with a heavy chopper on the forehead,
the accused had carried under the chador , held , he was guilty of murder (c).

Death caused by kicks : — A is guilty of murder if he several times kicks B,
who after having been severely beaten, has fallen down senseless ; as A must have
fully known when he gave several kicks that such kicks were likely to cause death
in the state in which B then was (d).

Death caused by attack with sharp»edged weapon Where the accused
suddenly struck the deceased with a sharp-edged weapon causing two wounds of a
penetrating nature, one of which completely perforated the heart and the other
penetrating the abdomen divided the intestines, from the effect of which the deceased
died and the medical evidence was that death was due to shock and haemorrhage,
held that the accused was guilty of murder (e).

Killing with poison : — Where the accused was convicted of murder and
sentenced to death for having caused the death of her husband and her mother-
in-law by administering aconite in their food, held that the mere administering of
a love potion or drug, which a person thinks might be beneficial, is not in itself an
offence ; but when it is supposed to have effect upon persons with whom the para-
mour of the accused had enmity, and when she administers it without due care
and caution or any enquiry as to what it really is, her act certainly falls within
s. 304-A (f).

Where a woman of twenty years of age was found to have administered
dhutara to three members of her family, the Allahabad High Court held that she
must be presumed to have known that the administration of dhutura was likely to
cause death, although she might not have administered it with that intention (g).
This case was not followed in another case by the same High Court where, for
the purpose of facilitating robbery dhutura was administered by two persons to
certain travellers in consequence of which one of the travellers died and others
were made seriously ill. There it was held that the offence in respect of the traveller
who died was s. 326, and in respect of others s. 328, (h). The Allahabad High
Court in another case where dhutura was administered for the object of facilitating
robbery held that the accused was rightly convicted under s. 302 (i), 4 * Fawcett, J.,
in Shetya Thimmas case (j) agreed with the view taken in Sadfkis case
P.R.No. 19 of 1919 (i).

Arsenic poisoning : — Where a person administers a well-known pqison like
the arsenic in sugar to some boys, taking precautions at the same time that his own
sons should not have any share of it, he is to be found guilty of murder, eveft though

(a) Elem Molla, (1907) 37 C. 315.

(b) Harnama, (1920) Cr. L. J. 27G : 60 I. C. 076.

(c) Baba Naya, (1927) 5 R. 817. *

(d) Nilmadhah Sircar , (1865) 3 W. R. (Cr.) 22.

(e) Lachman Singh , (1925) 7 L. L. J. 682 : 26 P. L. R. 829.

(f) Rahmat , (1912) 39 C. 855.

(g) Tulsha, (1897) 20 A. 143.

(h) Bhagwan Din , (1908) 30 A. 668.

(i) Gutali, (1908) 31 A. 148. followed in Sadhu, (1918) P. R. No. 19 of 1919, also
followed in Nanhu, (1923) 45 A. 557 : 24 Cr y L. J. 937 : 75 I. C. 361 : A. I. R. (1923)
AH. 608.

(j) (1924) 28 Bom. L. R. 1003 : 27 Cr. L. J. 1134 : 97 I. 654 : A. I. R. (196)

B. 618 .

527

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY

his intention at the time may not have been (and probably was not) to cause the
death cf the child. The accused knew it to be so imminently dangerous that it
must in all probability cause to the boys such bodily injury and he was convicted
of murder (k). Where it was not shown that the accused had arsenic in her
possession or she gave anything to eat to the deceased, held that the accused could
not be convicted of murder (1).

Intention of killing one person but death of another is caused

Where S with the intention of killing of N gave him some sweetmeats (halua) in
which arsenic and mercury were mixed, A/ ate a little and threw the rest away, and
this was picked up by R who ate it and died, the Madras High Court held that S
was guilty of the murder of R (m).

In Gahber Pandes case (n), a Dusedhin aged 15 had snatched away some gram
from a girl B aged 8 or 9 who had taken some gram from a Dusedh’s field and the
appellant, a young man of 19 fractured the Dusedhin's skull with a lathi blow on
the back of the sculp (from which wound she died) and also dealt her two blows
on the thigh, held , by Ross, J., agreeing with Kulwant Sahay, J., that neither the
circumstances of the assault nor the weapon used necessarily suggested an inten-
tion to kill, or an intention of causing such bodily injury as the appellant knew to be
likely to cause death, or an intention to cause such bodily injury as would, in the
ordinary course of nature, cause death and therefore the appellant was acquitted of
the charge under s. 302 but convicted under s. 304.

Clause 3.— If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death ' The distinction between
this clause and clause 2 is a degree of probability. The 2nd clause deals with the
intention to * cause such bodily injury as the offender knew it to be likely to cause
death here the offender intends causing bodily injury as is sufficient in the ordi-
nary course of nature to cause death.

Where the prisoner took a stout bamboo stick and with it struck a furious blow
on the head which fractured his skull, it was held that the accused must have known
death to be a very probable result oj the act committed by him as the presumption
of law is that a man intends the natural and probable consequences of his acts (o),
but where the accused stabbed a person and death followed some time afterwards,
held , the offence was one under s. 304 (p).

If a person strikes another on a vital part with a cutting instrument the striker
should be presumed to have intended to cause bodily injury sufficient in the ordi-
nary course of nature to cause death ; but it does not follow that the striker must be
found guilty of murder ; his act may fall under one of the exceptions to this sec-
tion (q). Where the injuries proved to have been inflicted were found not sufficient
in the drdinary course of nature to cause death, but quite likely to have produced
death Shield that the offence committed did not amount to murder, but only to
culpable homicide not amounting to murder (r). Where death was caused by
beating a number of blows with a lathi but the injuries inflicted upon the deceased
were all simple except one which fractured a finger bone, and death was due to the

♦ " (k) Gourishanker , (1918) 40 A. 360.

(l) Anandi , 17 Cr. L. J. 102 : 32 I. C. 838.

(m) Public Prosecutor v. Sooryanarayan Moorty , (1912) 11 M. L. T. 127: 13
I. C. 833. (1912* M. W. N. 136 : 13 Cr. L. J. 145, followed in Jeoli, (1916) 39 A. 161.

(n) (1927) 7 P. 638: 29 Cr. L. J. 17 : A. I. R. (1928) Pat. 169.

■ (o) (1881) r Weir 300 ; Jek Singh , (1925) P. L. R. No. 221 of 1926.

(p) Maung Aung Juv . (1916) 17 Cr, L. J. 544 : 36 I. C. 592 (R.).

(q) Kotiya, (1914) 7 Bur. L. T. 290 r 15 Cr. L. J. 513 : 24 I. C. 601.

(r) Darhoon, (1914) 8 S. L. R. 337 : 16 Cr. L. J. 472 ; 29 I. C. 10 4.

528

THE INDIAN PENAL CODE

[ CHAP. XVI

shock and the accused were convicted under s. 302 or s. 304 (l) f the Lahore High
Court held that it would not be safe to hold under the circumstances of the case
that the accused intended to cause death or such bodily injury as was sufficient in
the ordinary course of nature to cause death* and accordingly altered the convic-
tion to one under s. 304, part (2) (s).

Clause At -If the person committing the act knows that it is so imminently
dangerous that it must in all probability cause death, or such bodily injury as is likely
to cause death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid The fourth clause says nothing of inten-
tion like clauses, 1 , 2 and 3 (t). From the definition of * murder * in cl. 4, it follows
that if a person does an act of the nature described in the clause, he is guilty of
attempt to murder (u). Causing death by branding a thief without the knowledge
that the act was so imminently dangerous that it would, in all probability, cause
death, or such bodily injury as was likely to cause death, is punishable under s. 304
as culpable homicide not amounting to murder (v).

Where a snake-charmer exhibited in public a venomous snake, whose fangs
he did not know had been extracted and a boy who tried to push off the snake
was bitten and died in consequence, held that as the act was done with the
knowledge that it was likely to cause death, but without the intention of causing
the death, the accused was guilty under s. 304 (w).

Where death was caused by a blow with a heavy stick and there was reason to
think that the accused knew no more than that the blow was possibly dangerous
to life* held that the conviction should be of culpable homicide not amounting to
murder (x).

Where A caused crops to be sewn on the land, as to the enjoyment of which
there was a dispute between her and B and persons having proceeded to reap the
crops on behalf of B, the servants of A went to the place with the station-house
officer and some constables who were armed : the station-house officer ordered
the reapers to leave off reaping and to disperse, but they did not do so ; he then told
one of the constables to fire, and he fired in the air. Some of the reapers then
assumed a threatening attitude ; then the head-constable again gave orders to shoot
and one of the constable fired and mortally v/ounded one of the reapers. It was
found that neither the station-house officer nor the last mentioned constable be-
lieved that it was necessary for the public security to disperse the reapers by firing,
held that the police officers were not acting in good faith and the constable was not
protected in that he obeyed the orders of his superior officer and both were guilty
of murder (y).

Where a woman jumped into a well to commit suicide with a child hid on her
back, but not conscious of its presence, and the child died, but the woman did not,
the Bombay High Court held that this clause was not applicable as there was not
such knowledge of the accused as to bring her under this clause, but that she was
guilty under s. 304- A because the lack of consciousness implied negligence (z).

Exception The onus is on the prosecution to prove facts which would
bring the accused under any of the clauses of this section. But the onus is on the
accused to prove any of the five exceptions of this section if he takes such a plea.

~ ( S ) Bakshish Singh , (1924) 26 Cr. L. J. 890 : A. I. R. (1925) Lah. 549.

(t) Abdul Karim, (1914) P. R. No. 82 of 1914.

(u) Bhagat Singh , (1930) 31 P. L. R, 73: A. I. R. (1930) Lain 266.

(v) Khedun Misser , (1867) 7 W. R, (Cr.) 54.

(w) Ganesh Dooley , (1879) 5 C. 351. *

(x) Middle Venkappa 4 (1881) l Weir 299.

(y) Subba Natch , (1898) 21 M. 249.

(z) Supadi , (1925) 27 Bom.L. R. 604,

529

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY

This is also in consonance with the English Jaw. As Foster says: “The cases
falling under the head of ‘Manslaughter’, which must frequently occur, are these —
where death ensueth upon a sudden affray and in heat of blood, upon some provo-
cation given or conceived.

“ I have already premised that whoever shelters himself under the plea of
provocation must prove his case to the satisfaction of the Jury. The presumption
of law is against him till that presumption is repelled by contrary evidence. What
degree of provocation, and under what circumstances heat of blood, the furor brevis ,
will or will not avail the defendant is to be considered “ (a).

This is what is laid down in s. 105 of the Indian Evidence Act. See also s. 221 ,
illustrations (a) and (c), Criminal Procedure Code.

In all criminal cases it is incumbent on the accused to prove the existence of
circumstances which bring the offence charged within the general or special
exceptions or provisos contained in any part of the Penal Code (b).

If a man takes a lathi and deliberately assaults another on the head with the
result that the skull is fractured, that act is murder unless the accused can show
that it was removed from the category of murder by one of the exceptions to
s. 300 (c).

Exception 1.— Killing under grave and sudden provocation : — This
is the most important of these five exceptions. Provocation never justifies homicide.
It only extenuates the offence when, because of the grave and sudden provocation,
the offender being deprived of the power of self-control causes the death of the
person giving the provocation or of some other person by mistake or accident.*

English law : — Foster says : “ Words of reproach, how grievous soever,
are not a provocation sufficient to free the party killing from the guilt of murder. ,

“ Nor are indecent provoking actions or gestures expressive of contempt or
reproach, without an assault upon the person (d).

“ No provocation whatever can render homicide justifiable or even excusable ;
but provocation may reduce the offence to 4 manslaughter’. If a man kills another
suddenly, without any, or indeed, without a considerable provocation, the law
implies malice, and the homicide is murder ; R. v. Noom , 6 Cox. 137 ; R. v. Welsh ,

1 1 Cox. 336 ; but if the provocation were great and such as must have greatly ex-
cited him, the killing is manslaughter only, R . v. Matvgridge, 17 St., Tr. 57 ; 1 Hale
466, Fost. 290, 296, 299. The test to be applied is whether the provocation was
sufficient to depiive of his self-control the particular person charged, e.g ., a person
afflicted with want of rifiental balance or defective self-control, /?. v. Lesbini , (1914)
3 K. B. 11 16 : 24 Cox. 516 : 1 1 Cr. A PP . R. 24 ” (e).

The general rule of law is that provocation by words will not reduce the
crime of murder to that of manslaughter. But special circumstances attending
such a provocation might be held to take the case out of the general rule (0* So
the Authors of the Code observe : “ In general, however, we would not visit
homicidof’Committed m violent passion which had been suddenly provoked with the
highest penalties of the law. We think that to a person guilty of such homicide
as we should treat a murder would be a highly inexpedient course, — a course
whiclv would shock the universal feeling of mankind, and would engage the public
sympathy on the side of the delinquent against the law ” (g).

(a) Foster, ‘ Crown Law, * 255 (290).

(b) In re. Shibo Prasad Pandah, (1873) 4 C. 124.

(c) Piare, (1919) 17 A. L. J. 8GG.

(d) Foster,* Crown Law, ‘ 290.

(e) Archbold’s ' Criminal Evidence and Practice, * 25th Ed., p. 840,

(f) Rothwell , (1871) 12 Cox, 134; Palmer, (1913) 2 K. B, 29,

(g) Note N. "

40

530

THE INDIAN PENAL CODE

I CHAP. XVI

The Law Commissioners say : “ The framers of the Code deemed it in-
advisable to lay it down as a rule that insults by words or gestures should be con-
sidered as an adequate cause 6f provocation, while they thought it proper to allow
the plea of provocation where it may be evident that such insults have as great a
tendency as bodily injuries to excite violent passion " (h).

Before exception I can be applied , the provocation must be such as will upset
not merely a hasty and hot-tempered person but one of ordinary sense and calm-
ness (i). So far as exception I is concerned it makes no difference whether the
man who was so provoked (by grave and sudden provocation) had a knife already
or was given a knife by a bye-stander. The mere possession of the dagger by the
accused cannot make the crime one of murder any more than the possession of
pistol by A in the illustration to exception II (j), To give an accused the benefit
of exception I, it ought to be shewn distinctly, not only that the act was done under
the influence of some feeling which took away from the person doing it all control
over his action, but that that feeling had an adequate cause (k). Mere abuse cannot
be viewed as grave provocation to reduce the offence of murder to one of culpable
homicide (1).

The provocation contemplated by this section should be of a character to
deprive the offender of his self-control. In determining whether it was so, it is
admissible to take into account the condition of mind in which the offender was
at the time of the provocation (m), but it is not a necessary consequence of anger,
or other emotion, that the power of self-control should be lost (n).

Intrigue or Adultery, — Cases Where the deceased had, for about a month
prior to her death, carried on an intrigue with A , the prisoner suddenly cut off
throat and the prisoner in his defence stated that on the day before the occurrence
he found his wife sleeping with A, it was held that the act was done while the
offender was deprived of the power of self-control by grave and sudden provoca-
tion and therefore the case fell within Exception I of this section (o). On a certain
evening M , a common workman, saw N committing adultery with M’s wife and
in the following morning, while labouring under the excitement provoked by their
misconduct, he came upon them while they were eating together. M took up a
bill-hook and killed N on the spot ; it was held that the provocation was grave
enough and sudden enough to deprive him of his self-control, and reduced the
offence from murder to culpable homicide not amounting to murder (p). So,
Rolfe, B., said : " To take away the life of a woman, even your own wife, be-
cause you suspect that she has been engaged in some illicit intrigue, would be
murder, however strongly you may suspect it, it would unquestionably be
murder ” (q).

(li) First Report, S. 271.

(i) Shorab, (1924) 5 L. 97, following the principle enunciated in Reg. v. Walsh,

11 Cox. C. C. 336 (338) and cited with approval in King v. Lcshbini , (1914) 3 K. b!
1116; Khadim Hussain , (1916) 7 L. 488; Rahman Shah, 6 L. L. J. 437. '

(j) Guturu N again, (1927) M. W. N. 796.

(k) Hari Girt, (1868) 10 W. R. (Cr.) 20; Gokool fJowrie, (1866) 3 W. R. (Cr )
33.

(!) Pratapa, 25 Cr. L. J. 298 : 76 I. C. 970 ; Rahman, A. I. R. (1930) Lah. J144 (1).

(m) Khogavi, (1879) 2 M. 122.

(n) Deoji Goundji , (189 5) 20 B. 215.

(o) Nokul Nushyo, (1867) 7 W. R. (Cr.) 27 ; Uechoo Sant, (1873) 19 W. R. (Cr.)
35 ; Samiruddin , (1875) 24 W. R. (Cr.) 48 ; Devji Govindaji, (1895) 20 B. 215 ; Ghatu
Pramanik , (1909) 28 C. 613.

(p) Boye Manigadu, (1881) 3 M. 33; Chunni, (1896) 18 A. *497: Abalu Das,
(1901) 28 C. 57.

(q) Mattias Kelly, (1848) 2 C. and K, 814 ; Oadubhai , (1895) Rat. Unrep. Cr. C.

768 .

531

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY

Where the accused returned home unexpectedly and met the paramour of
lus wife coming out of his house, and he remonstrated with his wife to no effect
and killed her with a hoe which was lying near him, it was held that the circum-
stances under which he killed his wife did bring his act within this exception (r).
Where accused suspected his wife of being intimate with M and frequently remon-
strated with her and warned her, and one night accused and his wife were sleeping
together and after some time not finding the wife in the bed he proceeded to a
neighbouring khola. and found his wife and M together and killed his wife and
M, the Lahore High Court held that the provocation was grave and sudden and the
accused was entitled to the mitigation provided in. exception Ms). Where an
accused finding his wife inside his house lying on a cot with a man with whom she
had previously an intrigue, murdered the wife, it was held that the accused was
protected under this exception, but could be convicted under s. 304 (t).

Where accused killed his wife whom he knew to be a woman of depraved
character because she refused to have sexual intercourse with him, it was held that
the accused could not be said to have acted under grave and sudden provocation,
the woman having often before refused such intercourse and the accused was guilty
of murder (u) ; but where wife’s persistent immorality coupled with her refusal
to sever her connexion with her husband has been held not to amount.to grave and
sudden provocation (v). Where the accused met his sister travelling with a stranger
and brought them home and thus killed both, it was held that mere suspicion
cannot amount to grave provocation within the meaning of this exception (w).
Where the prisoner’s concubine refused to abandon another connection notwith-
standing his remonstrances and the accused went after her and stabbed her twice
with a dagger which he had, as he stated before the Sub-Magistrate, purchased
with the intention of killing her, it was held that her conduct may have been a
grave source of provocation, it was not provocation of a sudden character as to
reduce the offence to culpable homicide (x). If the husband discovers his wife in
the act of adultery and thereupon kills her, he is guilty of manslaughter only and
not of murder. But that rule has no application where the relationship between
the parties is not that of husband and wife.

A belief in having been the victim of witchcraft during a period extending over
three or four months, even if a real provocation, is not so sudden as to reduce the
offence from murder to culpable homicide (z). It has been held in Haku s case (a)
following Nga Po Thas case (b) that the offence fell under the 2nd part of s. 304
where the accused questioned the deceased who said that she was an evil spirit and
flogged her to death by having recourse to a chain and it was in evidence that there
was no consent in the case.

The evidence of a wife is not admissible against her husband in corroboration
of other evidence. Where the two prisoners who were uterine brothers confessed
having caught the deceased in the act of having sexual intercourse with the wife of
one of them, and they then and there killed him, it was held that the very grave

(r) Rallia, (1912) P. L. R. No. 209 of 1913 : P. R. No. 3 of 1913 (Cr.) : 14 Cr. L. J.

“° 8 '{^^adifBuksK (1920 ) 2 Lah. L. J. 406 : 23 Cr. L. J. 563 : 68 I. C. 403, following
Abdul Das, 28 C. 571 : 5 C. W. N. 708 ; Jan Muhammad , A. I. R. (1929) Lah. 861.

(t) Ajudhi, 16 Cr. L. J. 625: 30 I. C. 449 (Oudh).

(u) Ghazi, (1921) 23 Cr. L. J. 140 : 65 I. C. 572.

(v Nattekalappe , (1886) 1 Weir 308; Dadubhai , (1895) Rat. Unrep. Cr. C. 766.

w) Rahim Khan, (1913) 7 S. L. R. 118 : 15 Cr. L. J. 501 : 24 T. C. 589.

(x) Ghafttappa, (1882) 1 Weir 306.

(y) Key Mitter, J., in Dinobandhu Orrya , A. I. R. (1930) C. 199, following Rex.
v. Palmer, (1913) 2 K. B. 29.

v (z) &anduva Nay aka, (1881) l Weir 305,

(a) (1928) 10 L. 555.

(b) (19*8)44 1.0.679,

532 THE INDIAN PENAL CODE [ CHAP. XVI

provocation given to them was such as to reduce the crime from murder to culpable
homicide not amounting to murder (c).

Intriguing with a sister is a sufficient grave provocation to justify a conviction
of culpable homicide not amounting to murder as against the brothers who, finding
the deceased lying with their sister in the same bed, ill-treated him, from the effects
of which ill-treatment he died (d). Where the accused saw a stranger in his house
at midnight taking liberties with his sister and killed the paramour when he had
put his arms round the sister of the accused, it was held that the accused must have
lost his power of self-control and had received a grave and sudden provocation and
that he was guilty of culpable homicide not amounting to murder (e).

A prisoner s confession must be taken in its entirety .—Where a prisoner con-
fessed that he did not suspect his wife's fidelity ; that he left home on business, and
that on his return after two days’ absence he looked through a small hole in the wall
used for the purpose of ventilation and saw his wife and another man engaged
in criminal intercourse with each other, and that maddened at the sight, he killed
both, her and her paramour, it was held that he was guilty of culpable homicide
not amounting to murder and the case was one in which the accused ought to be
treated with lenity (f).

Where the wife of the prisoner had been forcibly taken to the house of the
deceased, a native physician, who alleged that her presence was necessary to the due
performance of certain incantations and the prisoner armed with a sword and
watching from the roof of the house saw his wife being actually violated by the de-
ceased and he jumped down from the roof and struck the deceased with the sword,
it was held that the accused committed the offence of culpable homicide not
amounting to murder (g). To take the offence of homicide out of the category
of murder by reason of grave and sudden provocation, the act must be done whilst
the person doing it is deprived of self-control by the grave and sudden provoca-
tion (h).

Wife-murder— is exceedingly common and mere suspicion of a wife’s con-
duct is no extenuation of a deliberate act of murder. Men cannot butcher their
wives and escape hanging on the plea that they suspected them of misconduct.
The sentence in Dasaris case was one of transportation for life which was enhanced
to one of capital sentence by the High Court. In Chava Indrammis case (j)
which was also a case of wife-murder and based on circumstancial evidence as in
Dasus case (i) sentence was enhanced to one of capital sentence because the motive
of the murder was not even jealousy but to get rid of an encumbrance in order to
marry again.

Upon the trial of a person charged with the murder of his wife, it was proved
that the accused had entertained well-founded suspicion that his wife had formed
a criminal intimacy with another person ; that one night the deceased woman think-
ing that her husband was asleep, stealthily left his side with the intention of going
to her paramour ; that the accused took up an axe and found her in conversation
with her paramour and immediately killed her, it was held that the act of the accused

(c) Gour Chander Polee, (1864) I W. K. (Cr.) 17; Asha Gopal, (1897) Rat.
Unrep. Cr. C. 932.

(d) Kasimuddin, (1865) 4 W. R. (Cr.) 38 ; Mailhya Gazee , (1866) 6 W. R. (Cr.) 42.

(e) Makommed Var, 5 L. L. J. 40 : A. I. R. (1924) L. 62.

(f) Sheikh Boodhoo , (1867) 8 W. R. (Cr.) 38 ; sec Supdl., and Remembrancer,
Bengal v.Lalitmohan Singh Roy, (1920) 25 C. W. N. 788, and on confession the leading
case of Panchkauri Dutt , (1924) 52 C. 67.

(g) Ramtahal Kahar, (1869) 3 Beng. L. R. (Cr.) 33.

(h) Yasin Sheikh, (i860) 12 W. R. (Cr.) 68; Khadim Hussain, 7 C 488.

(i) (1929) M. W. N. 269.

(j) (1929) M. W. N. 270. % *

SEC. 300 ] OFFENCES AFFECTING THE HUMAN BODY

533

constituted the offence of murder and although he received provocation, it was not
such as to bring his case within this exception (k). Where the accused found his
wife in the act of connection with her paramour and was convicted of culpable
homicide but the evidence shpwed that the accused was seen to follow the deceased
for a considerable distance with a Gandassa or chopper under circumstances which
indicated a belief on his part that she was going to keep an assignation and with the
purpose of detecting her in doing so he followed her and found her in the act of
connection with her paramour, it was held that the accused was guilty of murder (1).

Where the wife of the accused, and the deceased, his elder brother s wife, were
one day laughing and joking among themselves in the presence of the accused who
resented this disrespectful behaviour and abused the two ladies and at night he got
up from his bed and with a heavy hammer struck the deceased on the head and
killed her, and the defence was a plea of insanity, the Allahabad High Court held
that it is imperatively necessary that this question under Ss. 464 and 465, Cr. P.
Code, should be inquired into before the accused could be tried on the substantive
charge (m).

Where the husband, a low-caste man, was abused by his wife as a ‘ pig/ ‘son
of a pig * and picked up an axe and inflicted with it two blows on her neck which
almost severed her head from the trunk, held, such abuse did not constitute a grave
provocation but the sentence of death was commutted as the husband acted without
premeditation under some provocation which, though not grave, was sudden (n).

To enable a person to plead the extenuating circumstances provided in this
exception, the provocation and its effects must be sudden as well as grave ; and the de-
privation of self-control must continue in order to benefit a man who kills another
under circumstances of grave provocation (o).

Where the accused had been married to a girl and the ceremony of tadbil parchat
was # to take place on the day of occurrence when the deceased took the girl away
stating that she would not be married to the accused, who thereupon attacked both
the girl and the deceased and inflicted one injury to each in the abdomen with a
pen-knife, but the girl survived, it was held that this exception applied (p).

English cases : — “ The mere length of time intervening between the in-
jury and the retaliation aids very much the presumption of malice in law; for
that is in some cases evidence in itself of deliberation. Therefore, though if upon
a sudden quarrel the parties agree to fight upon the spot ; or if not having their
weapons there, they presently without any other matter intervening, fetch them
and go into the field and fight ; and one fall, it will be but manslaughter ; yet if
they appoint to fight the next day, or even upon the same day at such an interval
of time as that the passion might have subsided ; or if, before any blows passed
or words of anger, they agree to fight at a more convenient place, or the fight other-
wise appear to be upon deliberation, and death ensue, it will be murder ’* (q).
The test to be applied in order to determine whether homicide which could other-
wise be murder is manslaughter by reason of provocation is whether the provo-
cation was sufficient to deprive a reasonable man of his self-control, not whether
it was sufficient to deprive the particular person charged with murder of his self-
control (r). If from circumstances it appear that the party before any provocation

(k) Mohan, (1886) 8 A. 622.

(l) Lochan, (1886) 8 A. 635.
tm) Jhabu , (1919) 42 A. 137.

- (n) Rahman, A. I. R. (1930) Lah. 344 (l).

(o) Bechu Saout, (1873) 19 W. R. (Cr.) 85.

(p) Allah Din , (1923) 24 Cr. L. J. 663 : 73 I. C. 696 : A. I. R. (1924) Lah. 234.

(q ) Orieby's case, 1 East, P. C. 253; Hayward , 8 C. and P. 157.

'r) Lesibini, (1914) 3 K. B. 1116, following Alexander, 9 Cr App. R. 139 and

634

THE INDIAN PENAL CODE

[ CHAP. XVI

given intended to use a deadly weapon towards any one who might assault him,
this would shew that the crime was not to be attributed to the provocation and
the crime would be murder (s). Attempting illegally to arrest a man is sufficient
to reduce killing the person making the attempt to manslaughter, though the arrest
was not actually made, and though the prisoner had armed himself with a deadly
weapon to resist such attempt ; if the prisoner was in such a situation that he
could not have escaped from the arrest ; and it is not necessary that he should have
given warning to the person attempting to arrest him before he struck the blow (t).
Although a confession of adultery by a wife to her husband, who in consequence
kills her, may be such provocation as will entitle the Jury in their discretion to
find a verdict of manslaughter instead of murder, a similar confession of illicit
intercourse by a woman, who was not the prisoner’s wife but only engaged to be
married to him, cannot, if he kills her in consequence, justify such a verdict (u).

Proviso It— That the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person : — ” A and B, are at
some difference, A bids B take a pin out of the sleeve of A , intending thereby to
takefeh occasion to strike or wound B , which B doth accordingly and then A strikes
B , whereof he died; this was ruled murder, (1) because it was no provocation,
when he did it by the consent of A, (2) because it appeared to be a malicious and
deliberate artifice thereby to take occasion to kill B.

M If there be chiding between husband and wife, and the husband strikes his
wife thereupon with a pestle, that she dies presently, it is murder, and the chiding
will not be a provocation to extenuate it to manslaughter ” (v).

If on any sudden quarrel blows pass without any intention to kill or injure
another materially and in course of the scuffle, after the parties are heated by the
contest, one kill the other with a deadly weapon, it is only manslaughter (w).

Where the accused went deliberately in search of the provocation which at the
trial was sought to be made the mitigation of his offence, and whereupon the
circumstances disclosed it could not be said that he was deprived of self-control
by grave and sudden provocation, it was* held that the accused should be
convicted of murder and not of culpable homicide (x).

Proviso 2* — That the provocation is not given by anything done in obedience
to the law , or by any public servant in the lawf ul exercise of the powers of such public
servant : — Under s. 99, supra, there is no right of private defence against an act
which does not reasonably cause the apprehension of death or grievous hurt, if done
or attempted to be done by a public servant acting in good faith and under colour
of his office, though that act may not be strictly justifiable by law. This proviso
•ays that the acts of a public servant may furnish provocation unless they are lawful.
See illustrations (c) and (d) to exception I.

So the Law Commissioners observed : — “ We apprehend that grave provocation
given by anything done under cover of obedience to the law, or under cover of its
authority, or by a public servant, or in defence in excess of what is strictly warranted
by the law, in point of violence, or as regards the means used, or the manner of using
them and the like, would be admissible in extenuation of homicide under this clause.”
For example, take the ease of Wat Tyler. He was a public officer, a tax-gatherer
who came to exercise his lawful powers in that capacity, but doing so in a manner

(s) John Thomas , (1837) 7 C. and P. 817. *

(t) William Thompson, (1825) 1 Mood. C, C. 80.

(u) Palmer , (1913) 2 K. B. 29, followed in Dinabandhu Oriyya, A.I.R. (1930) C 199

(v) 1 Hale, P. C. 457 ; 1 Hawk, P. C. 90. V 9

(w) William Snow , (1776) 1 Leach 151 : 1 East P. C. 244 ; see the case of John
Brown , (1778) 1 Leach 148.

(x) Lochan, (1808) $ A. 635 ; Mohan, (1868) 8 A. 622.

SEC. 300] . OFFENCES AFFECTING THE HUMAN BODY 536

unwarranted and highly offensive. Tyler was excited to ‘ violent passion ’ and
in his rage killed him on the spot. The Commissioners upon this say : So far,
indeed, should we be from ranking a man who acted like Tyler with murderers,
that we conceive that a Judge would exercise a sound discretion in sentencing such
a man to the lowest punishment fixed by the law for manslaughter ” (y).

Proviso 3.—‘ That the provocation is not given by anything done in the lawful
exercise of the right of private defence ’ A person exercising the right of private
defence gives provocation. This proviso says that nobody can claim exemption
on that ground. Illustration (e) to exception I furnishes an example of practically
working this ‘ proviso/

See commentary on Ss. 96-106, supra .

Explanation : — Whether the provocation was grave and sudden is a question
of fact .

Foster says : “ In every charge of murder, the fact of killing being first proved ,
all the circumstances of accident, necessity, or infirmity are to be satisfactorily
proved by the prisoner, unless they arise out of the evidence produced against him ;
for the law presumeth the fact to have been founded in malice, until the contrary
appeareth " (z).

To give an accused the benefit of exception I, it ought to be shewn distinctly,
not only that the act was done under the influence of some feeling which took
away from the person doing it all control over his actions, but that that feeling had
an adequate cause (a).

Foster says : “ In the case of justifiable self-defence the injured party may
repeal force by force in defence of his person, habitation or property against one
who manifestly intendeth and endeavoureth by violence or surprise to commit a
known felony upon either. In these cases he is not obliged to retreat, but may
pursue his adversary till he findeth himself out of danger, and if in a conflict be-
tween them he happeneth to kill, such killing is justifiable *’ (b).

The onus is on the accused to show that his case falls within one of the excep-
tions to this section (c). •

Where the accused left his wife for eight months exposed to temptation during
which period she misbehaved and became pregnant, and on returning home he killed
her lover when he was asleep, held that the accused was not entitled to a lenient
treatment and must receive a capital sentence inasmuch as the murder could not be
said to have been committed on grave and sudden provocation (d).

Exception 2.— Culpable homicide is not murder if the offender , in the exercise
in good faith of the right of private defence of person or property , exceeds the powers
given to him by law and causes the death of the person against whom he is exercising
such right of defence without premeditation , and without any intention of doing more
harm than is necessary for the purpose of such defence : This is the most important
exception.

So the Authors of the Code observed “ Wherever the limits of the right
of private defence may be placed, and with whatever degree of accuracy they may
be marked, we are inclined to think that it will always Jbe expedient to make a

(y) First Report, S. 277.

(z) Foster, ' Crown Law, ’ 255.

(a) Hari Giri , (1868) 1 B. L. R. (A. Or.) 11: 10 W. R. (Cr.) 20.

(b) Foster, • Crown Law, ’ 273.

\c) Kanshi , (1926) 8 L. L. J. 188 : 27 P. L. R. 244 : 27 Cr. L. J. 666 : 94 I. C.
134 A. I. R. (1926) L. 361.

^ Patis * wa n Prasad, (1928) 29 Cr. L. J, 466 : 109 I. 113 : A. I. R. (1928)

Oudh 241.,

536

THE INDIAN PENAL CODE

[ CHAP. XVI

separation between murder and what we have designated as voluntary culpable
homicide in defence.

44 The chief reason for making this separation is that the law itself invites men
to the very verge of the crime which we have designated as voluntary culpable
homicide in defence. It prohibits such homicide indeed ; but it authorises acts
which lie very near to such homicide ; and this circumstance, we think, greatly
mitigates the guilt of such homicide.

44 That a man who deliberately kills another in order to prevent that other
from pulling his nose should be allowed to go absolutely unpunished would be most
dangerous. The law punishes and ought to punish such killing ; but we cannot
think that the law ought to punish such killing as murder ; for the law itself has
encouraged the slayer to inflict on the assailant any harm short of death which may
be necessary for the purpose of repelling the outrage ; to give the assailant a cut with
a knife across the fingers which may render his right hand useless to him for life, or
to hurl him downstairs with such force as to break his leg ; and it seems difficult
to conceive that circumstances which would be a full justification of any violence
short of homicide should not be a mitigation of the guilt of homicide. That a man
should be merely exercising a right by fracturing the skull and knocking out the
eye of an assailant, and should be guilty of the highest crime in the Code if he kills
the same assailant ; that there should be only a single step between perfect inno-
cence and murder, between perfect impunity and liability to capital punishment,
seems unreasonable. In a case in which the law itself empowers an individual to
inflict any harm short of death, it ought hardly, we think, to visit him with the
highest punishment if he inflicts death.

“ It is to be considered also that the line between those aggressions which it is
lawful to repel by killing, and those which it is not lawful so to repel, is in our
Code, and must be in every Code, to a great extent, an arbitrary line, and that many
individual cases will fall on one side of that line, which, if we had framed the law
with a view to those cases alone, we should place on the other. Thus we allow a
man to kill if he has no other means of preventing an incendiary from burning a
house ; and we do not allow him to kill for the purpose of preventing the commission
of a simple theft. But a house may be a wretched heap of mats and thatch, prop-
ped by a few bamboos, and not worth altogether twenty rupees. A simple theft
may deprive a man of a pocket-book which contains bills to a great amount, the
savings of a long and laborious life, the sole dependants of a large family. That
in these cases the man who kills the incendiary should be pronounced guiltless
of any offence, and that the man who kills the thief should be sentenced to the
gallows, or, if he is treated with the utmost lenity which the Courts can show, to
perpetual transportation or imprisonment, would be generally condemned as a
shocking injustice. We are, therefore, clearly of opinion that the offence which
we have designated as voluntary culpable homicide in defence ought to be dis-
tinguished from murder in such a manner that the Courts may have it in their
power to inflict a slight or a merely nominal punishment on acts which, though not
within the letter of the law which authorises killing in self-defence, are yet within
the reason of that law” (e).

Archbold says : ” If two men fight upon a sudden quarrel and one of them
after a while endeavours !© avoid any further struggle and retreats as far as he can,
until at fength no means of escaping his assailant remain to him and he then turns
round and kills his assailant in order to avoid destruction ; this homicide is excusable,
as being committed in self-defence ; Fost. 277, and Malice apart, it is little matter
in such a case, which struck the first blow at the beginning of the contest (f).

(e) Note M. &

(f) Archbold, * Criminal Practice and Evidence ’ "25th Ed., p, 844.

SEC. 300 ]

OFFENCES AFFECTING THE HUMAN BODY 637

See commentary on Ss. 96-106, supra .

Where a prisoner had intended to inflict such injury on a thief as would have
prevented him from escaping, and had, in so doing, accidentally killed him, the
case would probably fall under the 2nd exception to this section, but when the
prisoner intended to kill the thief and where the evidence indicted that killing was
not necessary for the purpose of private defence either of person or of property,
nor was it done under grave and sudden provocation, it was held that the accused
was guilty of murder (g). Where a thief was caught house-breaking by night with
half his body and his head through the wall of a house occupied by none but
women except the prisoner and his young idiot son, and where this prisoner suddenly
caught up a sort of pole-axe, and with it struck the thief five times on the neck and
nearly cut off his head, it was held that the prisoner's offence was not murder as
it was committed in good faith in the exercise of the right of private defence and
the case fell within the 2nd exception (h). A case in which the accused pursued
after a thief and killed him after the house- 1 respars had ceased was held not to fall
within this exception, the right of private defence of property continuing under
cl. 5, s. 105, only so long as the house-trespass continues (i). Where the
accused and the deceased and another person met one day at a liquor-shop and
there drank together and in course of an altercation which took place in respect of
the deceased person having, as alleged by the prisoner, caused the death of the pri-
soner’s four children by his incantations and the deceased having told the prisoner
that he would bring about the death of the prisoner, the accused killed him with
severe blows of a heavy lathi , it was held that the case was not taken out of the
category of murder by reason of the 2nd exception. Held , further that the prisoner
having pleaded guilty to a charge of murder, he could not, without trial, be convicted
of culpable homicide not amounting to murder (j). A head-constable making
an investigation into a case of house-breaking and theft searched the tents of certain
gipsies for the stolen property but discovered nothing. He demanded from the
gipsies some money which they paid but he demanded more which they refused.
Thereupon he ordered his subordinates to bind them and take them away and the
gipsies took up a threatening attitude and before actual violence was used by the
crowd of gipsies, the head-constable fired with a gun at the crowd and killed one
of the gipsies. It was held that the head-constable had no right of private
defence (k). Where the accused, who was appointed to protect the crops of a
field, went round one night and saw in the darkness a man cutting the crop, but the
thief on seeing the accused rose and at once the accused struck him a blow on the
head felling him on the ground, it was held that he was protected under this exception
and the conviction was altered from one under s. 325 to 304 (1). Where there
was mutual stone throwing and the accused by a stone of considerable weight
hit the deceased and ruptured his liver and another accused struck him on the leg
with a sword, it was held that the accused could not be held guilty of murder as they
were acting in the exercise of the right of private defence but the individual ac-
cused who caused the injury in the leg was guilty under s. 325 (m). Where the
accused sets up a plea of self-defence, the question to consider is whether the
accused had any reasonable apprehension that he would be hurt ; and particularly
in a case where he was under any reasonable apprehension of grievous hurt or death
to himself, it is his apprehension that is the important point and not the injuries

i

(g) Durwan Geer, (1866) 6 W. R. (Cr.) 73.

(h) Fukera Chatnar, (1866) 6 W. R. (Cr.) 60.

(i) Eolakee Jolahed , (1868) 10 W. R. (Cr.) 9.

S Gobadur Bhooyan, (1870) 13 W. R. (Cr.) 65.

) Abdul Hakim^ 1880) 3 A. 263.

(1) Kallu , (1921) 22 Cr. L. J. 741: 64 I. C; 133.

(m) Dattu Nana Pawar , (1917) 19 Bom. L. R. 902 19 Cr. L. J. 93 : 43 I. C.

263 . a ■£ -

538

THE INDIAN PENAL CODE

[CHAP. XVI

suffered by him (n). Where the two accused who were being searched by an armed
gang shouting 4 din, din * and announcing their intention to kill the accused, took
refuge in the dark kitchen of a house belonging to their friend and the mob broke
open the lock of the house and forced their way into the house and proceeded to
loot and burn the contents and two of the rioters attacked the accused and when
handled by the accused, one of the rioters escaped and the other received fourteen
wounds and died on the spot, the Bombay High Court held that the accused in the
dark night when they were fighting for life like rats in a trap with the murderous
mob in front of them, did their best to make sure that the enemy was dead and
acquitted the accused of the charge under s. 304 and set them at liberty (o). Where
accused, who were armed with chhavis and dangs , attacked two persons who were
cutting the former's rice crop, one of whom was killed on the spot as a result of the
repeated blows dealt to him on the head by the accused, it was held that the accused
were guilty of murder (p). But where the accused fired at dacoits in self-defence
at night and all the shots were received in front and at the back which demolished
the lower Court’s theory that the gun was fired at an enemy who was running away,
Dalai, J., sitting singly quashed the conviction of the appellant and ordered his
release (q). Where the accused fired at the deceased, who was one of his watch-
men, mistaking him for a thief and inflicted a fatal wound in the chest and the watch-
man died immediately, it was held that the accused could not get the benefit of this
exception (r), but where a proclaimed offender was tried for murdering a police
officer trying to arrest him and the prosecution failed to file the statement referred
to in clause (3), s. 87, Criminal Procedure Code, as also to adduce any other evidence
of publication, it was held that the accused might be entitled to the benefit of this
exception, and where the accused, who was concealing himself from the police, was
seized by the deceased and in order to rescue himself from the unauthorised act of
the deceased he dealt him a severe blow on the head, it was held that he was
protected under this exception (t).

Where G, who was ill-treating his wife, was chased by a village headman and
then the accused killed the deceased, a member of the party chasing G, it was held
that the accused cut the deceased in self-defence but exceeded his right and was
convicted under s. 304, 1st part (u). Where the accused takes the plea of the right
of private defence the onus is on him to show that he did not exceed that right and
to prove the circumstances from which the Court might conclude that he was justi-
fied in going to such an extreme length as causing grievous hurt by killing a man (v).

Exception 3. — Culpable homicide is not murder if the o0ender, being a public
servant or aiding a public servant acting for the advancement of public justice, exceeds
the powers given to him by law , and causes death by doing an act which he, in good
faith , believes to be lawful and necessary for the due discharge of his duty as such
public servant and without ill-will towards the person whose death is caused.

This exception protects a public servant so long as he believes in good faith
that the act is lawful and necessary for the due discharge of his duty as a public
servant and is not inspired by malice. The English law is the same. As roster
says : “ The protection of the law extends to its officers, not only while actually <

M Kesavalu Naidu , (1930) M. W. N. 502.

to) Gurultttgappa Shfdramappa, (192!) 23 Bom. L. R. 817; 22 Cr. L J 618 •
63 I. C. 154. '

(p) Mamun (1900) P. R. No 35 of 1916 (Cr.) : 18 Cr. L. J. 367 : 38 I C 751

(q) Dhu Ram, (1928) 27 A. L. J. 148: A. I. R. (1929) A. 299.

(r) Tkekumathal Kelukutti, (1912) 13 Cr. L. J. 782 : 17 I. C. 414 (Mad )

(s) Kayambu, (1916) 17 Cr. L, J. 78 : 32 I. C. 670 (Mad.T.

(t) Farid , (1911) 12 Cr. L. J. 81 * 9 I. C. 452 (Sind).

(u) Nga Tun Nyein, (1917) 18 Cr. L. J. 284 : 38 I. C. 316.

(v) Asirudddn Ahmed , (1904) 8 Cj W. N. 714; see Ghulam Rasul, (1926) 27
P. L. K« 430,

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY 539

engaged in the execution of their duty at the scene of action, but also emdo t morando ,
et redundo. And therefore if one come to execute his offices, and meeting with
^great opposition retire, and in the retreat be killed, this will be murder. And on
the same principle, if he meet with opposition, and be killed before he come to the
place ; such opposition being intended to prevent his doing his duty ; this will also
amount to murder; however, the homicide might otherwise have admitted of
alleviation.

“ But though it be not necessary that the officer should retreat at all, yet he
ought not to come to extremities upon every slight interruption, nor unless upon a
reasonable necessity, in order to execute his duty. And therefore where a collector
having distrained for a duty laid hold of a maid-servant who stood at the door to
prevent the distress being carried away, and beat her head and back several times
against the door-post, of which she died : although the Court held her opposition
to the officer to be a sufficient provocation to extenuate the homicide ; yet they were
clearly of opinion that he was guilty of manslaughter in so far exceeding the neces-
sity of the case. And where no reliance at all is made, and yet the officer kills, it
will be murder. So if the officer kill the party after the lesistance be over, and the
necessity has ceased, it is manslaughter at least ; and if the blood has time to cool,
it would, I conceive, be murder “ (w).

Hale says : “An officer or bailiff, that in execution of his office kills a person
that assaults him, — the officer gives not back to the wall, for the officer is under the
protection of the law, and the books tell us it is not felony in such case “ (x).

Foster says : “ In the case of private persons using their endeavours to
bring felons to justice, these cautions ought to be observed : —

“ That a felony hath been actually committed. For if no felony hath been com-
mitted, no suspicion, how well soever grounded, will bring the person so inter-
posing within the protection of the law “ (y).

A choukeedar seeking to arrest a fugitive thief and seeing no other means of cap-
turing him is fully justified in using so much violence as is necessary to effect this
object (z). Where the prisoners, ffearful of being punished if they allowed the
deceased to escape, and thinking that they were acting lawfully in furtherance of
a plan arranged for them by a police constable and the lumbardar of a village for the
capture of an outlaw for whose arrest a reward had been offered and in pursuance
thereof killed him, while endeavouring to escape, it was held that the offence com-
mitted came under the third exception in this section and was culpable homicide
not amounting to murder (a). Where a head-constable of police, after giving orders
to the rioters to disperse, did not try to arrest the leaders of the assembly and without
giving any warning to the rioters that they would be fired at, gave orders to shoot,
and a constable fired and mortally wounded a rioter, held , the head-constable was
not protected under the 2nd exception and the constable was not protected in that
he obeyed the orders of his superior officer (b). Where the accused and the de-

* (eased having quarrelled, the accused took an iron-rhod stick and struck one blow
on the head of the deceased which caused his death and he was convicted of murder,

* tKe Bombay High Court altered the conviction to one under s. 304 holding that
the* blow the accused struck exceeded in violence the injury he had in view at the
moment of striking it. But the learned Judges in saying this observed: — “We
do not wish* to encourage loose applications of such inferential processes giving

(x)

I!

(to

Foster, ‘ Crown Law, ' 318.

1 Hale, P. C. 494.

Foster, ‘ Crown Law, ’ 318. *

Protab Chowheedar, (1865) 2 W. R. (Cr.) 9.
A man, (1873) 5 N, W. P„ H. C. R. 130.
Subba Naik, (1808f 21 M. 249.*

540

THE INDIAN PENAL CODE

[ CHAP. XVI *

too liberal an extention to the provision of s. 300, cl. 3” (c). This exception
is meant to apply to cases wherein, in whatsoever way the quarrel originated, the
subsequent conduct of both the parties puts them upon an equal footing (d). *

Exception 4 . — Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
without the offender's having acted in a cruel or unusual manner .

Explanation . — It is immaterial in such cases which party offers the provoca-
tion or commits the first assault . — This exception is on the same lines as the English
law.

Hale says : " If A and B fall suddenly out, and they presently agree to fight
in the field, and run and fetch their weapons, and go into the field and fight, and A
kills S, this is not murder but homicide, for it is but a continuance of the sudden
falling out, and the blood was never cooled ; but if there were deliberation, as that
they meet the next day, nay, though it were the same day, if there were such a
distance of time, that in common presumption they had time of deliberation, then
it is murder ” (e). Where there was no sufficient evidence that the prisoner lay
in wait for the deceased with a malicious design to provoke him, and under that
colour to revenge his former quarrel by stabbing him, it was held that the offence
was manslaughter (f).

Foster says : “ And where the circumstances of deliberation and cruelty
concur, the fact is undoubtedly murder ; as flowing from a wicked heart, a mind
grievously depraved and acting from motives highly criminal, which is the genuine
notion of malice in our law ” (g).

All persons, who by their presence encourage a fight from which death en-
sues to one of the combatants, are guilty of manslaughter although they neither
say nor do anything. But if the death be caused not by blows given in the fight
itself but by other parties breaking the ring and striking the deceased with blud-
geons, the persons, who merely encouraged the fight by their presence, are *ii-
swerable (h). Jenner, B„ said to the Jury : If I had no design to kill a man, aind
kill another with whom I do not quarrel, that cannot be any premeditated malice ;

And if there was no malice premeditated, then the accused

cannot be found guilty of nothing but manslaughter (i).

Where the prisoner was found guilty on his own confession of having assualted
his wife with a heavy stool with which he struck her so violent a blow on the head
that he caused her immediate death, it was held that it is not sufficient to find simply
that the blow was given on the heat of passion but all the facts mentioned in the 4th
exception must be found (j). Where a homicide was committed without premedi~
tation in a sudden fight, in the heat of passion, and no undue advantage was taken
and the act was not a cruel or deliberate one, it was held that the act of the accused
fell within this exception (k). So Foster says : “ In a case of homicide upon
provocation, how great soe er it be, if there is sufficient time for passion to subside,
and for reason to interpose, such homicide will be murder. ^

" A findeth a man in the act of adultery with his wife, and in the first trans-
port of passion killed him ; this is no mo*e than manslaughter ; but had he killed the *

(c) SardarJthan Jaridkhan, (1916) 41 B. 27 : 18 Bom. L. R. 793 ; 17 CiTlT v

630 : 36 I. C. 578. ' * ?

(d) Karam Singh , (1926) 8 L. L. J. 93 : 27 P. L. R. 132 : A. I. R. (1926) U 219

(e) 1 Hale, P. C., 453 ; I Hawk, P. C. 97. * *

(f) 1 East, P. C. 245.

(g) Foster, ' Crown Law, ’ 188?

(h) Edward Murphy , (1833) 6 C, and P. 103 ; Cuddy, (1843) ; 1 C. and K. 210 "

(i) Walters, (1688) 12 St. Trial 118. *- ' ’ •

(j) Akul Mahomed, (1866) 3 W. R. (Cr.) 18.

(k) Zalim, (1864) 1 W. R. (Cr.) 33; Rajoo Ghose, (1867) 7 W. R. (Cr,) TO.

541

SEC. 300] OFFENCES AFFECTING THE HUMAN BODY

adulterer deliberately and upon revenge after the fact and sufficient cooling -
time % it had been undoubtedly murder. For let it be observed that in all possible
cases deliberate homicide upon a principle of revenge is murder. No man under
the law is to be the avenger of his own wrongs " (1).

The 4th exception clearly indicates that culpable homicide in a fight is murder
unless the fight is unpremeditated and is such as is therein described, sudden in
the heat of passion and on a sudden quarrel ; a fight is not per se a palliating cir-
circumstance, only an unpremeditated fight can be such (m).

In order to reduce killing of a person to the crime of manslaughter, there must
not only be sufficient provocation, but the July must be satisfied that the fatal
blow was given in consequence of that provocation (n).

Parke, B., said : “ But the law requires two things, first, that there should be
that provocation, and secondly, that the fatal blow should be clearly traced to the
influence of passion arising from that provocation " (o). Lord Tenterden, in
summing up said : “ It is every slight provocation , even by a blow, which will,
when the party receiving it strikes with a deadly weapon, reduce the crime from
murder to manslaughter ” (p). Repeated blows or even a single blow, forcibly
delivered with a heavy weapon, would make the offence a ‘ murder/ but where a
sudden blow is struck with a stick that is not heavy, the offence would be culpable
homicide not amounting to murder (q), but the offence is murder where a person
deals a violent blow with a lethal weapon like a dang on a vulnerable part of the
body such as the head (r).

Where it appeared in a case of a person charged with murder that while
smarting from a severe blow from a stick in the midst of a sudden fight, and
possibly apprehensive of further violence, finding a knife at hand he took it up, and
in the melee inflicted the wound which caused the death of the deceased,, it was held
that the act of the accused came within the language of exception 4, s. 300, and he
was found guilty under s. 304 (s). When the accused’s party pursued the com-
phsnants in three boats for a long distance and then when they had them in their
power they landed and attacked them with spears and killed three of them deli-
berately, their action was held not X° come within exception 4 to this section and
the act of the accused was murder (t). Where in the course of a faction fight, the
accused inflicted a fatal wound on the deceased who was not actually engaged in the
fight and who cried out that he was unarmed ; it was held that the accused was
entitled to the benefit of 4th exception and the conviction under s. 302 was altered
to one under s. 304 (u). Where on a sudden quarrel the accused on the spur of
the moment and without premeditation struck a blow with a chhavi on the head of
the complainant which resulted in the latter’s death, it was held that the offence
of the accused fell within the second part of s. 304 (v). Where in a sudden fight
between certain persons, blows of ordinary sticks and of fists were exchanged and a
severe blow was given which fractured skull bone of one of the persons engaged in
the fight and instantly resulted in his death, but it was not proved conclusively as to

(1) Faster, ' Crown Law, ' 296.

(m) Rohimuddin, (1879) 5 C. 31 (34).

(n) William Kirkham, (1837) 8 C. and P. 116.

(p) John Thomas , (1837) 7 C. and P. 817 (819).

(p) Dqiiel Lynch , (1832) 6 C. and P.4124.

fo) Baba Nashya , (1927) 6 R. 817.

* (;) Preman , (1925) 26 P. L. R. 363 : A. I. R. (1928) L. 93.

(s) Somiruddin , (1875) 24 W. R. (Cr.) 48.

(t) Adil Mahmed, (1908) 8 C. L. J. 561 .

(u) Nga Thwe t (1911) 5 Bur. L. T. 17 : 13 Cr. L. J. 272 : 14 I C. 656.

(v) Kunda Singh , (1913) P. L. R. No. 3 o i 1914 P. W. R. No. 4 of 1914 : 15
Cr.LrJ. 178: 22 I. C. 754.

542

THE INDIAN PENAL CODE

[CHAP. XVI

who caused the fatal blow nor was it proved that any of the accused originally intend-
ed or knew it to be likely that such injury would be caused, it was held that the
accused was only responsible for simple hurt under s. 323 (vl).

Where the accused was found to have caused four injuries to the deceased
with a clasp knife and the only serious injury was one in the abdomen of the
deceased and the accused to save himself received at the hands of the. deceased not
less than twelve injuries including a contused wound on the front of his head and a
fracture of metacarpal bone of the index finger of the right hand, the Lahore High
Court held that the offence was committed without premeditation in a sudden
fight and the accused was entitled to the benefit of this exception (w).

Where the accused conjointly beat the deceased and caused his death under
s. 34 they are all equally guilty of murder. This exception would have been
applicable but for the fact that the assailants took undue advantage and acted in a
cruel and unusual manner in inflicting serious injuries upon an old man of 69
years (x). See Barendras case (y). Where two persons were present when a
third committed murder, and, so far from attempting to prevent the murder, stood
by and gave moral support, if not physical help, held that these two were equally
guilty with the man who committed the murder with his own hand, and were
sentenced to death (z).

This exception does not apply to the case of an accused who uses a knife
where there is no appreciable risk of even serious hurt to his person (a).

Exception 5. — Culpable homicide is not murder when the person whose death
is caused , being above the age of eighteen years , suffers death or takes the risk °f death
with his own consent.

This provision is a departure from the English law under which homicide is
neither justified nor extenuated by consent (b). So the Authors of the Code
observe : In the first place, the motives which prompt men to the commission

of the offence are generally far more respectable than those which prompt men
to the commission of murder. Sometimes it is the effect of a strong sense of religious
duty, sometimes of a strong sense of honour, not unfrequently of humanity. *The
soldier who, at the entreaty of a wounded comrade, puts that comrade out of pain,
the friend who supplies laudanum to a person suffering the torment of a lingering
disease, the freed man who in ancient times held out the sword that his master
might fall on it, the high born native of India who stabs the females of his family
at their own entreaty in order to save them from the licentiousness of a band of
marauders, would, except in Christian societies, scarcely be thought culpable and
even in Christian societies, would not be regarded by the public, and ought not to
be treated by the law, as assassins.

“ Again, this crime is by no means productive of so much evil to the com-
munity as murder, one evil ingredient of the utmost importance is altogether wanting
to the offence of voluntary culpable homicide by consent. It does not produce
general insecurity. It does not produce terror through society. When we punish
murder with such signal severity, we have two ends in view, viz., one end is that
people may not be murdered, another end is, that people may not live in constant
dread of being murdered. The second end is perhaps the more important of the

~~lv 1) Dhani Ram , (1912) P. L. R. No. 162 of 1913 : P. W. R. No. 1 of 1918 (Cr.):
14Cr. L. J. 104: 18 I.C. 004. ' *.

(w) Feroze, (1924) P. L. R. No. 26 of 1924: A. I.'R. (1925) Lah. 033.'

(x) Allah Ditta , 4 Lah. L. J. 276 : A. T. R. (1922) Lah. 260. -

(y) 52 I. A 40 : 52 C. 197.

(z) Tulli, (1924) 47 A. 276.

(a) In re. MtUhu Madav Nan dan, (191 5) 16 Cr. L. J. 747 : 31 I. C. 347 (Mad.),
(b 1 Hawk, P. C. c, 13 s. 39.

543

SEC. 300 ] OFFENCES AFFECTING THE HUMAN BODY

two. For, if assassination were left unpunished, the number of persons assassinated
would probably bear a very small proportion to the whole population, but the life of
every human being would be passed in constant anxiety and alarm. This pro-
perty of the offence of murder is not found in the voluntary culpable homicide by
consent* Every man who has not given his consent to be put to death is perfectly
certain that the latter offence cannot at present be committed on him and that it
never will be committed unless he shall first be convinced that it is his interest to
consent to it. We know that two or three midnight assassinations are sufficient
to keep a city of a million of inhabitants in a state of consternation during several
weeks, and to cause every private family to lay in arms and watchmen’s rattles.
No number of suicides or of homicide committed with the unextorted consent of
the person killed could possibly produce such alarm among the survivors ” (c).

* Consent * 4 Consent * here must be such consent as is defined in s. 90.

The case of Suttee is a noted example of this exception (d). It is not a good
defence to a charge of abetting the suicide of a Hindu widow who immolated her-
self on her husband’s funeral pyre ( suttee ) to show that the abettors were, in fact,
expecting a miracle and did not anticipate that the pyre would be ignited by human
agency (e).

Pigot, J., held : “ I think the exception (5) should be considered in applying
it, first , with reference to the act consented to or authorised. And I think that as
to each of these, some degree of particularity at least should appear upon the facts
proved, before the exception can be said to apply. I cannot read it as referring to
anything short of suffering the infliction of death, or running the risk of having
death inflicted, under some definite circumstances not merely of time, but of mode
of inflicting it, specifically consented to, as for instance, in the case of suttee , or of
duelling which were no doubt, chiefly in the minds of the framers of the Code.

“ Nor can I understand that it contemplates a consent to the acts of persons
not known or ascertained at the time of the consent being given. I do not doubt
tliat the consent may be inferred from circumstances and does not absolutely need
to be established by actual proof of express consent ” (f).

Where a person kills another who is more than eighteen years of age, and pleads
it was done with the consent of the deceased, in circumstances in which the Court
can hold that it is not impossible that the deceased, feeling desperate and depressed,
asked to be killed, and no motive is proved against the accused for deliberately
killing the deceased of his own free will, he is entitled to the benefit of exception 5
to s. 300, and must be convicted only of culpable homicide not amounting to mur-
der under the earlier part of s. 304 (g).

Where a man of full age (i.e., above 18 years) submits himself to emasculation,
performed neither by a skilful hand, nor in the least dangerous way, and dies from
the injury, it was held that the accused was guilty of culpable homicide not
amounting to murder. Held further that the Judge or Magistrate had not
noticed an important point, viz., whether the deceased was above 18 years so that
his consent should suffice (other points apart) to exempt the prisoners from a charge
of murder under the 5th exception (h).

(c) Note M.

(d) Rohimuddin, ( 1 879) 5 C. 31.

(e) Vidyasagar Pande , (1928) 8 P. 74: A. I. R. (1928) Pat. 497. following Ram
Dial, (1913) 3ft A. 26.

(f) Nayamuddin , (1891) 18 C. 484 (F. B.) at pp. 489, 490, overruling Samshere
Khan , (1880) 6 C. 154 in so far as from a mere agreement to a fight such a consent
as is contemplated by the section cannot be imputed to each member of each mob
to suffer death in whatever way that person may please.

(g) In re. Konava Kisavan, (1930) 54 M. 504.

(h) Baboolun Hijrah, (1866) 5 W. R. (Cr.) 7.

544

THE INDIAN PENAL CODE [ CHAP. XVI

In a case of murder of the accused’s wife by consent, it was held that
the evidence of consent which would be sufficient in a civil transaction is insufficient
in exculpation of the prisoner’s guilt (i).

Where a snake-charmer exhibited in public a venomous snake whose fangs
he knew had not been extracted, placed the snake on the head of a boy who was
one of the spectators, who tried to push off the snake, was bitten and died in
consequence, and it was found that he did not know that the act was * so immi-
nently dangerous that it must, in all probability, cause death * at the time he put
the snake upon the boy, was held that the act was done with the
knowledge that it was likely to cause death, but without the intention of causing
death, and thA conviction under s. 304-A was altered to one under s. 304 (j).
Where the accused, who professed to be snake-charmers, persuaded the deceased
to allow themselves to be bitten by a poisonous snake, inducing them to believe
that they had power to protect them from harm, it was held that the offence
would have been murder, if under the circumstances of the case, it did not fall
within this exception (k).

301 . If a person, by doing anything which he intends
or knows to be likely to cause death, commits
Culpable homicide by culpable homicide by causing the death of

otherUijuf p*crscm *whose any person, whose death he neither intends
death was intended nor knows himself to be likely to cause,

the culpable homicide cciferiitted by the
offender is of the description of which it would have been if
he had caused the death of the person whose death he intended
or knew himself to be likely to cause.

This section illustrates the principle that a man when he commits a crime is
responsible for the natural and probable consequences of his act, though he may
not have intended it.

This section is in consonance with the Eiglish law. So Foster says : “ If an
action, unlawful in itself, be done deliberately and with intention of mischief or great
bodily harm to particulars, or of mischief indiscriminately, fall it where it may, and
death ensue against or beside the original intention of the party, it will be mu.der.
But, if such mischievous intention doth not appear, which is a matter of fact and
to be collected from circumstances, and the act was done heedlessly and incautiously,
it will he manslaughter, not accidental death, because the act upon which death
ensued was unlawful ” fl). As Lord Coleridge, C. J., observed : “ It is common
knowledge that a man, who has an unlawful and malicious intent against another,
and in attempting to carry it out, injures a third person, is guilty of what the law
deems malice against the person injured, because the offender is doing an unlawful
act, and has that which the Judges call * general malice,’ and that is enough ” (m).
Sir Hyde East says : “ In the case of malice, propense and express, if the blow
intended for one would in law only have amounted to manslaughter, it will still be
the same, though by mistake or accident it kill another” (n). Blackburn, J.,
said : “ In order to constitute malice aforethought, the statute says that the act
must be unlawful and malicious, and malice may be defined to be where any person

(i) Anunto Rurnagat , (1866) 6 W. R. (Cr.) 67.

(j) Ganesh Dooley , (1879) 6 C. 351.

(k) Poonai Fattemah, (1869) 3 B. L. R. (App. Cr.) 26: 12 W. R. (Cr.) 7.

(l) Foster, (i) * * 4 Crown Law, * 261.

(m) Latimer, (1886) 17 Q. B. D. 369 (361).

(n) Brown's case, (1776) 1 East, P. C. 245 : 1 Leach 148.

545

SEC. 301 ] OFFENCES AFFECTING THE HUMAN BODY

wilfully does an act injurious to another without lawful excuse " (o). Hale says :
“ If A and B fight by appointment beforehand, and a stranger comes between them
to part them, and he is Jfci7/ed by A, it is murder in him " (p).

The Authors of the Code observe : 41 But homicide may be culpable, yet not
voluntary. There will probably be little difference of opinion as to the expediency
of providing a punishment for the rash and negligent causing of death. But it may
be thought that we have dealt too leniently by the offender who while committing
a crime causes death which he did not intend to cause or know himself to be likely
to cause. ^

“ The law as we have framed it differs widely from the English law.*' If,
says Sir William Blackstone 44 one intends to do another felony and undesignedly
kills a man, this is murder ", and he gives the following illustration of the rule : If
one gives a woman with child a medicine to produce abortion, and it operates so
violently as to kill the woman, this is murder in the person who gave it.

44 To punish as a murderer every man who, while committing a heinous offence,
causes death by pure misadventure, is a course which evidently adds nothing to the
security of human life. No man can so conduct himself as to make it absolutely
certain that he shall not be so unfortunate as to cause the death of a fellow creature.
The utmost that he can do is to abstain from everything which is at all likely to
cause death. No fear of punishment can make him do more than this : and therefore
to punish a man, who has done this, can add nothing to the security of human

life (q). ^

Cases : — 5, witnthe intention of killing N , gave him poisoned sweetmeat. N
ate a portion of the sweetmeat and threw the rest away and this was picked up by
R , a girl aged 8 or 9 years, who was a niece of the accused. R ate it and died.
Held , S was guilty of murder. It was held further that the rule, whether homicide
amounts to murder or not, will depend on the intention or knowledge which the
offender had in regard to the person intended or known to be likely to be killed or
injured, and not with reference to his intention or knowledge with reference to the
person actually killed, a rule deduciblc from the language of Ss. 299 and 300, though
not perhaps lying on their surface (r). Where in the course of a murderous
attack on his wife by the accused, the # former ran to the deceased woman for protec-
tion and clasped her arms round her waist, the accused then gave a fatal stab to the
deceased with the sole object of making her let go his wife so that he might wreak
his vengeance on her, it was held that the accused stabbed the deceased in the
excitement of the moment and it would not be safe to assume that the accused
intended to cause her fatal injury and that the conviction was altered from on under
s. 302 to s. 304 (s). Where a person intending to kill one person kills another person
by mistake by putting poison into halm (sweetmeat), it was held that he is as
much guilty of murder as if he had killed the person whom he intended to kill (t).
Where in the course of an altercation between the accused and the complainant
on a dark night over a caste dispute, the former aimed a blow with his stick at the
head of the latter whose wife having a child in her arms intervened between them
and the blow missed its aim, but fell on the head of the child causing severe injuries
from the effecjs of which it died, the accused was charged under s. 304 but was
convicted under s. 325, and on appeal he was held guilty of simple hurt (u).

(o) Henry Pembliton , (1874) L. R. 2 C. C. R. 119 (122).

(p) 1 Hale. P. C. 441.

(q) Note M.

(r) Suryanarayan Moorty , (1912) M. W. N. 136 (139. 140) : 13 I. C. 833.

(s) Peruntal Naiken , (1912) M. W. N. 193.

(t) Jeoli, (1916) 39 A. 161, following Public Prosecutor v. Survauarayana Moorty,
(1912) M. W. N. 136 : 13 I. C. 833.

(u) Chatur Natha , (1919) 21 Bom. L. R. 1101.

41 .

546

THE INDIAN PENAL CODE

[CHAP. XVI

A person striking another with a highly lethal weapon like a sharp dao and
inflicting dangerous injuries must be considered to have known that such injuries
were likely to cause death and the killing of the child by a blow intended for the
mother was held to be culpable homicide amounting to murder (v).

302 * Whoever commits murder shall be punished with

Punishment for mur- death, or transportation for life, and shall
<*«■• also be liable to fine.

Mfcrder— s. 300.

This section provides punishment for the offence of murder as defined in
s. 300.

Procedure Cognizable— Warrant— Not bailable— Not compoundable—

Triable by Court of Session.

Burden of proof : — Hawkins says : " Wherever it appears that a man
killed another, it shall be intended, prima facie , that he did maliciously, unless
he can make out the contrary, by shewing that he did it on a sudden
provocation M (w).

Prosecution witness not an interpreter A witness for the prosecution
should not be employed as an interpreter in cases of serious offences, e. g., Ss. 302
and 304 (x) ; but in a case under s. 194, where the Sessions Judge wrote his charge in
English and then got the Government Pleader to translate it and read it to the Jury,
held, this procedure was not illegal (y). 4 /

Altering conviction Where the Sessions Judge found that the act by
which the death was undoubtedly done with the * intention of causing such
bodily injury as was likely to cause death * and convicted the accused of
culpable homicide not amounting to murder, the Calcutta High Court set aside
the conviction and directed a retrial on the grave charge of murder (z). Their
Lord>hip 3 of the Judicial Committee in Kishan Singh's case (a) held that the
High Court could not alter the conviction of an accused from one under s. 304
to 302 when he was tried and acquitted on the charge of murder by the Sessions
Judge. *

When onus on defence The law requires that when one man takes away
the life of another man, he should show circumstances which justify his doing
so. If the accused did the act in the exercise of the right of private defence, it
lay on him to show that he did not exceed that right and the onus lay upon him to
prove the circumstances from which the Court might conclude that he was justified
in going to such an extreme hngth as causing grievous hurt by killing a man (b).
When one man takes the life of another man, the onus is on him to show the
circumstances which justify his act in law (c) ; also the onus is on him to show
that his case falls within one of the exceptions to s. 300 (d).

The fact that an accused person was found with a gun in his hand immediately
after a gun was fired and a man was killed on the spot from which the gun was fired,

(v) Phomonee Ahum, (1867) 8 W. R. (Cr.) 78.

(w) 1 Hawk, P. C. 98.

(x) AH Sot, (1926) 53 C. 659: 30 C. W. N. 696.

(y) Suranath Bhaduri , (1927) 50 A. 365,

(z) Soumber Gowala, (1865) 4 W. R. (Cr.) 32; Sheikh Choollye , (1865) 4 W. R.
(Cr.) 35; Toyab Sheikh , (1866) 5 W. R. (Cr.) 2; Gorachand Gape, (1866) 5 W. R.
(Cr.) (F. B.) 45; Sheikh Bazu, (1867) 8 W. R. (Cr.) 47.

(a) (1928) 33 C. W. N. 1. (P. C.) distinguished in Hanuman Sarma , (1932)
36 C. W. N. 1152, where accused was convicted under Ss. 376-511.

(b) Asiruddin Ahmed , (1904) 8 C. W. N. 714.

(c) Jhakri Chamar , (1912) 16 C. L. J. 440, following Asiruddin, (1904) 8 C. W. N.

714.

(d) Kanshi, (*025) 8 L. L. J. 188 : 27 P. L. R, 244 : A. I. R. (1926) L, 361,

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY 547

may be strong circumstantial evidence against the accused, but it is an error of law
to hold that the burden of proving innocence lies upon the accused under such
circumstances (e).

The prosecution must prove : — (I) that the death of a human being
took place.

The prosecution must prove actual death of murdered person (f) ;

(2) that such death was caused by the accused ;

(3) that the act by which the accused caused the death was done—

(a) with the intention of causing death, or

(b) with the intention of causing such bodily injury as the accused knew to

be likely to cause the death of the person to whom the harm was
caused, or

(c) with the intention of causing bodily injury to such person and the bodily

injury intended to be inflicted was sufficient in the ordinary course of
nature to cause death, or

(d) with the knowledge that it was so imminently dangerous that it must in all

probability cause death, or such bodily injury as was likely to cause
death, and committed such act without any excuse for incurring the
risk of causing death or such injury as aforesaid.

The prosecution must make out either by direct evidence or inference from
facts that the accused had # knowledge or intention ’ as contemplated by s. 299
or s. 300.

The prosecution is bound to prove its own story independently and cannot
rely upon the weakness of that put forward by the defence (g).

After the prosecution has proved these points a prima facie case of murder
will be inferred . The accused may then prove the exceptions under which he takes
shelter in mitigation of the offence.

For the defence (1) If the corpse be not found or if a headless trunk is
found, take the plea of * corpus delicti noticed hereafter.

(2) If it is established that some one has been killed, if the circumstances
permit, take the plea that there is nothing to show that the person was the man
whose corpse was found, and contend that the corpus delicti not being established,
there can be no conviction for culpable homicide (h).

Where the evidence does not establish that the accused had anything to do with
the murder of the deceased, the accused must be acquitted (i).

(3) If the evidence establishes murder and the accused pleads any of the
exceptions as a mitigation of the offence, the onus is on him to prove such
exception (j)*

(e) Nibaran Chandra Roy ; (1907) 11 C. W, N. 1085.

(f) Bandhu, (1924) 22 A. L. J. 340 : 25 Cr. L. J. 900 : 81 I. C. 430 : A. I. R.
(1924) 662 (AH.).

(g) Lachman Das , (1914) P. L. R. No. 131 of 1915 : P. W. R. No. 14 of 1915
(Cr.) : 16 Cr. L. J. 152 ; see Gauri Narayan Parrua V. Tilibikram Chettir, (1921)
25 C. W. N. 838: (case under s. 406,).

(h) Ram Ruchea Singh, (1865) 4 W. R. (Cr.) 29.

(i) Rajani Kanto Koer, (1903) 8 C. W. N. 22.

(j) S. 105 of the Indian Evidence Act; Kanshi , (1925) 8 L. L. J. 188; 27
P.L.R. 244: A. I. R. (1926) Lah. 301.

548

THE INDIAN PENAL CODE

[CHAP. XVI

The onus of proving grave and sudden provocation such as would reduce the
offence of murdec to one of culpable homicide not amounting to murder is on the
accused (k).

Doctor must be called as a witness and the jury cannot convict the accused
unless a proper exposition and explanation of the medical evidence is given viva voce
by a doctor (1).

Plea of guilty Jenkins, C. J., held : M It is not in accordance with the
usual practice to accept a plea of guilty in a case where the natural sequence

would be a sentence of death A man may plead that he hit

some one who thereby died, and that he did it for the purpose of taking the orna-
ments of the person injured without necessarily admitting that he committed murder,
under the Penal Code required a certain intention or a certain knowledge ” (m).
In a case of murder it has long been the practice of the Allahabad High Court not
to accept the plea of guilty. Murder is a mixed question of fact and law, and
unless the Court is perfectly satisfied that the accused knew exactly what was neces-
sarily implied by the plea of guilty, the case should be tried (n). The Madras High
Court has held that in Sessions case trials — especially in murder cases — the trial
of an accused person does not necessarily end if he pleads guilty and further held
that the proper course to be adopted when an accused person pleads guilty is either
to convict him on his plea and remove him from the dock, in which case his trial
would be manifestly at an end so as to warrant his being called as a witness for or
against any persons who had been accused along with him ; or else to allow the trial
to go on as if the plea had been one of not guilty (o). Where the accused, a habitual
Ganja smoker, was charged with the murder of his wife and son and in his con-
fession he stated that he killed his wife, and he adhered to the statement when
placed for trial before the Court of Session, the Sessions Judge treated the state-
ment as a plea of guilty and convicted the accused and sentenced him to death.
The High Court of Bombay held that the accused’s statement did not amount to a
plea of guilty (p). Where the prisoners simply stated in their examination
4 1 killed', but the prisoners were not asked in their examination whether they intend-
ed to kill, or in what circumstances they killed *he deceased, and their statements
did not disclose on their part a knowledge of the elements constituting the offence
of murder, it was held that the accused could not be convicted on such plea (q).

Witnesses declared hostile In Veera Koratvans case (r) the practice of
tendering eye-witnesses for cross-examination has been deprecated. The Patna
High Court in Rcrnjag Ahir s case (s) has held that cross-examination of the
prosecution witness cannot be allowed under s. 154, Indian Evidence Act, when the
prosecution after tendering a witness does not examine him. A Full Bench of
the Calcutta High Court in Profulla Kumar Sar\ar $ case (t) has held that the
fact that a witness is dealt with under s. 154, Indian Evidence Act, in no way

(k) Umar Khan. (1931) 33 Cr. L. J 186. —

(l) Devendra Narayan Chakravarty, (1929) 50 C. L. J. : 33 C. W. N, 632.

(m) Chinna Bhika , (1900) 8 Bom. L. R. 240 (241); Bhadus , (1897) 19 A. 119
and Laxmaya Shidappa, 19 Bom. L. R. 356, followed in Hasanuddin Mahomed , A. I. R.
(1928) C. 775.

(n) Dallibi. (1922) 20 A. L. J. 320 : 23 Cr. L. J. 283 : 66 I. C. 427 : A. I. R.
(1922) All. 233.

(o) Chinna Pavuchi. (1889) 23 M. 151, followed in Laxmya Shidappa, (1917)
19 Bom. L. R. 356.

(p) Sakharam Ramji , (1890) 14 B. 564.

(q) Aiyavu, (1885) 9 M. 61 ; Bhadn, (1890) 19 A. 119.

(r) (1929) M. W. N. 799.

(s) (1927) 7 P. 55.

(t) (1931) 58 C. 1404 : 35 C. W. N. 731 (F. B.).

549

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY

warrants a direction to the jury that they are bound in law to place no reliance on
his evidence, or that the party, who called and cross-examined him, can take no
advantage from any part of his evidence. Either party may rely on the evidence of
a witness who is cross-examined by the party calling him. There is, moreover, no
rule of law that if a jury thinks that a witness has been descredited on one point,
they may not give credit to him on another. The rule of law is that it is for the
jury to say. Besides there is no rule of law that the evidence of a witness who has
been treated as ‘hostile* must be rejected either in whole or in part, or that it
must be rejected so far as it favours the party* calling the witness or so far as it
favours the opposite party. The entire evidence must go to the jury with the
following qualifications : — (i) If the previous statement is the deposition before
the committing Magistrate and if it is put in under s. 288, Cr. P. Code, so as
to become evidence for all purposes, the jury may in effect be directed to choose
between the two statements.

(ii) In other cases, whether the previous statement be admitted by the witness
or proved in spite of his denial under s. 155, Evidence Act, the proper direction to
the jury would be that before relying on the evidence given by the witness as the
trial, the jury should take into consideration the fact that he made the previous
statement, but they must not treat the previous statement as being any evidence at
all against the prisoner of the facts therein alleged.

The above rule may be slightly modified in very special circumstances, e.g. t
as corroboration under s. 157, Evidence Act.

A hostile witness is not necessarily an untruthful witness (u).

Ss. 302 and 201, : — Where in a charge under this section the evidence
established that some of the accused made away with the evidence of the crime,
it was held that the accused could be convicted of an offence under s. 201 ,
though there was no formal charge under that section (v). For a distinction be-
tween s. 34 and s. 149 the Privy Council decision in Barendras case (w) may be re-
ferred to.

Ss. 302 and 304~A : — In a reference under s. 307, Cr. P. Code, it was held
that is was open to the Jury to corwict the accused under s. 3Q4-A, having referred
to the fact that there was a charge against him under s. 302 (x).

Ss. 302 and 149 : — Where the evidence has been throughout to the effect
that each of the appellants was armed either with a sword, spear or lathi and they
were found in the immediate presence of the person actually killed, their convic-
tion under Ss. 302 and 149 were upheld by the High Court (y).

Charge : — A single head of charge under Ss. 302 & 149 in respect of 3 persons
killed In the same transaction is illegal (z).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at ,

committed murder by intentionally (or knowingly) causing the death of (name of

(u) Sokrai Sao, (1929) 9 P. 474, disapproving Makbul Khan , 56 C. 145 : 32

C. W. N. 872. 6

(v) Begu, (1924) 62 I. A. 192 : 41 C. L. J. 437 (P. C.) (1925) M. W. N. 418 : 6
L. 226, followed in Ismail Khadini Saheb, (1928) 52 B. 388: 30 Bom. L. R. 330;
Umed Sheikh, (1926) 30 C. W. N. 816, Ditta, (1928) 10 L. 213, but distinguished in
Dibakar Bene v. Saktidhar Kabiraj, (1927) 31 C. W. N. 527.

(w) 52 C. 197 (P. C.).

(x) M oft sal Peeda, (1924) 29 C. W. N. 842.

(y) Kashi Ram , (1«027) 26 A. L. J. 139 : A. I. R. (1928) A. 280, see also Tiruva
Tevan, (1929) M. W, N. 899.

(z) Azimuddy t ' (m6) 54 C. 237, following Radhanath Karmakar, (1922) 50 C. 94.

650

THE INDIAN PENAL CODE

[CHAP. XVI

deceased) and thereby committed an offence punishable under a. 302 of the
Indian Penal Code, and within the cognizance of the Court of Session (or the
High Court).

And I hereby direct that you be tried on the said charge.

Charge to the Jury :— Sir Elijah Impey said to the Jury in Ntmktmars case :
4 ‘You will consider on which side the weight of evidence lies, always remembering

t t in criminal, and more especially in capital cases you must not weigh the eyi-
ice in golden scales ; there ought to be a great difference of weight in the opposite
scale before you find the prisoner guilty. In cases of property the stake on each
side is equal and the least preponderance of evidence ought to turn the scale ; but
iri'4 capital case, as there can be nothing equal to life, you should be thoroughly
convinced that there does not remain a possibility of innocence before you give a
verdict against the prisoner 99 (a).

“ In all cases of murder, it is of necessity, that there should be malice afore-
thought, which is the essence of, and constitutes the offence ; but that malice may
be either express or implied by the law : express malice must arise from the pre-
vious acts of declarations of the parties offending, but implied malice may arise from
numbers of circumstances relating either to the nature of the act itself, the manner
of executing it, the person killing, or the person killed, from which the law will as
certainly infer malice, as where it is express 99 (b).

It will be well to remember that the English cases of ‘ Manslaughter 9 are not appli-
cable to cases in India as the language of the two statutes are different.

English caces : — Ridley, J., in summing up pointed out that in order to
constitute manslaughter, no proof of actual physical violence was necessary, but
that death from fright alone, caused by an illegal act, such as threats of violence,
would be sufficient (c). Where in a charge of child murder, the only evidence was
the confession of the accused, and no dead body of the child was found, and the
Jury acquitted accused of murder, and found her guilty of concealment of birth,
held , there was not sufficient evidence of a separate existence of the child to convict
of murder, but sufficient to convict for concealment of birth, although no dead body
had been found (d). Avorv, J. f in the course of summing up directed the jury
as follows : — “ Where a person uses an instrument or other means, for the purpose
and with the intention of procuring abortion and death resulted from that act, then
you must ask yourselves the further question : when be did the act, did he contem-
plate, or must he as a reasonable man have contemplated, that death was likely
to result, or must he as a reasonable man have contemplated that grievous bodily
harm was likely to result? If, in your opinion, he must as a reasonable man have
contemplated either of these consequences, then your duty is to find him guilty
of murder' 9 (e).

Jury trial— Misdirection s — Where in his summing up, the Judge does
really leave no one question of fact for the Jury to decide, he decides all himself,
and says expressly that in his opinion it is proved that the accused has committed
murder ; the only thing that he does leave to the Jury is to say which of the excep-
tions to s. 300 apply to the case if they shall hold that the offence does not amount
to murder, it was held that it is perfectly dear that such a summing up is not in com-
pliance with the direction of the law, and is entirely at variance with the first prin-
ciples upon which trial by Jury is based (0* In charging a Jury on the point of

l a) Stephen’s Story ' Nuncumar p. 108.

I b) Mary Blandy, (1752) 18 St. Tr. 1186.

c) Hayward (1808) 21 Cox. C. C. 692.

d) Kersey, (1908) 21 Cox. C. C. 690.

e) Lumley, (1911) 22 Cox. C. C. 635.

f) Shamshe iBeg (1868) 9 W. R. (Cr.) 51.

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY 551

provocation in a case of culpable homicide, a Judge should tell the Jury that to bring
the case within the exception to s. 300, the prisoner must have been deprived of the

E ower of self-control by grave and sudden provocation, and that there ought to have
een a sufficient cause for such loss of self-control (g). The mere fact that the
accused persons do not admit of their presence at the occurrence and raise a case of
provocation or of that of passion or something of that sort does not render it un-
necessary to give the Jury a proper direction as to the exception in s. 300 (h).
In charging a Jury in a case of culpable homicide not amounting to murder* *a
Judge should call upon the Jury to state which description of culpable homicide
they consider the accused to have committed. Where the Judge omitted to require
the Jury to do this, the Calcutta High Court held that the conviction should be for
the lighter offence as mentioned in s. 304 (i). It is the duty of the Judge to i&plain
the distinction between murder and culpable homicide, and then the jury as judges
of the facts have to decide the issue about provocation (j). It has been pointed out
in Rex. v. Hall (k) that charge should be for manslaughter also ; perhaps the
learned Judges meant ‘ culpable homicide net amounting to murder * vyhen they
loosely used the expression 4 manslaughter * which has no application in India. The
Calcutta High Court has recently held that in charge of * murder * the direction
would have been quite correct if the Judge had not used the word 4 possible * but
had adhered to the words of the section and used the expression 4 likely * (1).

It is a misdirection when the Judge asks the Jury to accept the statement in the
First Information in preference to the evidence in the case. The First Information
Report is not evidence in the case. It is a misdirection not to tell the Jury that
absconding was a matter which was equally consistent with innocence as with
guilt (m).

Jenkins, C. J., in a Full Bench decision of the Calcutta High Court observed :
44 Where a trial for culpable homicide is proceeding before a Jury, it is not an
appropriate mode of laying down the law to discourse on all branches and depart-
ments of this complicated topic of crime ; to do so, is I think calculated to confuse
the Jury and possibly to direct their deliberations into channels that have nothing
to do with the case. The duty of the Judge is in my opinion to lay down the law
in reference to the case presented tef Court and the facts of the case, and not to per-
plex the minds of the Jury with considerations that are outside the legitimate scope
of the enquiry 44 (n).

In directing the Jury on confession , the Judge should leave to the Jury to sav
whether there was an inducement, threat or promise (b), but where the Judge left
it to the Jury todecide whether in the circumstances the confession should be
regarded as genuine or not, it was held that there was no misdirection (p).

Sanderson, C. J., held : 44 In my judgment it is necessary for a learned Judge
to read the very words of the section itself to the Jury, if he purports to give them
what are the provisions of the section and then if necessary, to explain what is the

meaning of the section.... Then his only direction as to what

constitutes murder is contained in one sentence 4 murder 4 is the intentional killing

(g) Ganesh Luskar , (1808) 0 W. R. (Cr.) 72.

(h) Jahur Sheikh , (1926) 30 C. W. N. 912.

(i) Ameerhhan , (1869) 12 W. R. (Cr.) 35 followed in Kalicharan Das , (1871) 15
W. R. (Cr.) 17.

(j) Dadubhai, (1895) Rat. Unrep. Cr. C. 766.

(k) (1929) M. W. N. 524.

(l) Natabar Haidar , (1929) 50 C. L. J. 476: 34 C. W. N. 223.

(m) Asfar Sheikh , (1910) 15 C. W. N. 198 (199, 200).

(n) Upendra NathDass , (1914) 19 C. W. N. 653 (F. B.) : 21 C. L. J. 379: 10
Cr. L. J. 501 : 30 I. C. f 13.

Aushi Bib% (1915) 20 C. W. N. 512.
KabiliKatoni f (1917) 22 C. W. N. 809.

552

THE INDIAN PENAL CODE

[ CHAP. XVI

of another human being with malice aforethought.* That may be a comprehensive
way of describing what the meaning of ‘murder' is but it is not the way in which
learned Judges ought to charge the Jury in this country. It is usual to refer to the
sections which relate to culpable homicide and to direct the jury as to what is
culpable homicide and in what circumstances culpable homicide amounts to murder ;
I should not however reject this direction to the Jury by the learned Judge on this
ground alone, if I felt quite clear that the misdirection had not occasioned a failure
of justice " (q). Where the prosecution case was that there was no right of private
defence, it was a serious misdirection to tell the Jury that the case fell within
exception 2 of s. 300, the proper direction was to put clearly before the Jury that the
question they had to decide was whether or not the right of private defence came
into existence and not how fai it entended (r). Where the matter depends upon
the particular view taken of the sections of an Act, their Lordships of the Judicial
Committee could not say that to assert that upon those sections the Judges had
come to a wrong conclusion is tantamount to saying that there has been
substantive and grave injustice done (s).

The omission to direct the attention of the Jury to the question whether the
prosecution was bound to call A as a witness and whether there was sufficient ex-
planation why the prosecution did not call him was a defect in the charge which pre-
judiced the accused (t). Merc fact that the accused persons do not admit their
presence at the occurrence and raise a case of provocation oi of passion does not
render it unnecessary to give the Jury proper direction as to exceptions in s. 300 (u).
Lord Williams, J., in Narendra Nath v. Gopal Sardar (v) pointed out what
proper summing up is in a charge under s. 302.

Confession— S. 27, Evidence Act s— -What the prisoner said in effect to the
police was ' I put the body in the incline ’ and not ‘ you will find the body in the
incline.’ It was held that the whole statement was admissible (w).

Confession of co*accused Where there was a difference of opinion
between Heton, J., and Shah, J., of the Bombay High Court and on reference to
Scott, C. J., it was held by the learned Chief Justice as follows : — " I think it will
be apparent to any one who peruses the judgment of Lord Reading, L. C. J., in
Rex. v. Baskerville , (1917) 86 L. J. K. B. 28, that except in regard to corroboration
of accomplice evidence, there is no difference between the law in England and the
law in India.

“ As regards the confessions of co-accused, the Indian law has no counterpart
in England, but it seems to me that for the purpose of admissibility such confessions
stand on the same footing as accomplice evidence and that their weight must
depend on the same footing as accomplice evidence and that their weight must
depend on the cirsumstances of each case " (x). Garth, C. J., in a Full Bench

(q) Durga Charan Bepari, (1922) 26 C. W. N. 1002 : 36 C. L. J. 171 (174) : 23
Cr. L. J. 567 : 68 I. C. 407 : A. I. R. (1922) Cal. 124.

(r) Muhammad Yunus , (1922) 50 C. 318 (325).

(s) Umra, (1923) 48 M. L. J. 01 (P. C.).

(t) Per Shamsul Huda, j., in Ashraf Ali, (1917) 21 C. W. N. 1152 ; see Tenaram
Mandal, (1920) 25 C. W. N, 142 ; Ram Ranjan Roy , (1914) 42 C. 422, Dhavum Kazce,
8 C. 121 : Hachun Khan, (1930) 34 C. \V. N. 390, distinguished in Shaikh Nabob Ali,
(1930) 58 C. 586 : 34 C. W. N. 1151 : 53 C. L. J. 54 ; Manohar Mandal , (1931) 53
C. L. J. 58; Solai Sheikh , (1931) 54 C. L. J. 244, Contra Girish Chandra Natnedas.
(1031) 58 C. 1335.

(u) Jahur Sheikh , (1926) 30 C. W. N. 912.

(v) (1929) 57 C. 740 : 34 C. W. N. 164.

(w) Sonar am Mahton , (1930) 10 P. 153.

(x) Sahitkhan , (1019) 43 B. 739 (767) : 21 Bom. L. R. 448, following Lalitmohan
Chakraverty , (1911) 38 C. 559 (588) ; Chander Bhattacherji , (1875) 24 W. R. (Cr.) 42
(43), Ashutosh Chakraverty , (1878) 4 C. 483 (487, 490); Ambikd Charan Roy , (1931)
35 C. W. N. 12701 s

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY 563

decision of the Calcutta High Court, held as follows “ If the confession is cor-
roborated by other evidence, I do not think it matters whether, in proving the case
at the trial, the confession precedes the other evidence, or the other evidence pre-
cedes the confession. The course of proof in each case is a question of convenience
for the prosecution ; and they have a right to bring forward that evidence in any
order they may think fit” (y). Jackson, J., (McDonnell, J., concurring) held :

“ A conviction based upon the confession (of a co-accused) alone would be illegal ;
and not only so, but that such confession will not legally suffice, when corroborated
by other facts of which evidence is offered, unless those facts are such that, if be-
lieved to exist, they would of themselves suffice to support a conviction " (z).
The properly-attested confession of prisoners before a Magistrate are sufficient
for their conviction without corroborative evidence, and notwithstanding a sub-
sequent denial before the Sessions Court (a). In a case of murder it js unsafe to
rely upon the evidence ot witnesses who have resiled from their previous
statements (b).

Where the evidence of the Assistant Surgeon and the Magistrate showed that
the accused was in full possession of his senses at the time he made the confession,
the confession should not be rejected in tolo simply because the accused at the
time of making it was under the influence of a dose of opium (c).

Jenkins, C. J., laid down in an oft-quoied case on sedition as follows : — “ The
principal and most important oral evidence in the case is that of the approvers. . . .
be admittedly their testimony, before it can be acted on, must be corroborated in
material particulars " (d).

“ The distinction of language (between s. 21 and s. 30 of the Indian Evidence
Act) is significant and it appears to me that its true effect is that the Court oan
only treat a confession as lending assurance to other evidence against a co-accuscd.
Thus to illustrate my meaning, in the view I take, a conviction on the confession
of a co-accused alone would be bad in law. This reading of the section appears
to me to gain confirmation from the language of s. 5 ” (e).

The Allahabad High Court has held that it is not expedient to convict an
accused person of a capital charge ftpon a plea of guilty entered before the trial
Court itself and as a matter of practice the Court in its discretion should put such
a plea on one side, and proceed to record and consider the evidence, in order to
satisfy itself, not merely of the guilt of the accused, but of the precise nature of the
offence committed and held further that the proper time for taking into considera-
tion a confession that was retracted before the Sessions Court is after the Court
is in possession of the entire evidence and can estimate what the effect of that
evidence would be, considered apart from any statement, which the accused person
or persons may from time to time have made (f).

The question of the admissibility of a confession is for the Judge, and that
of its truth or falsity is for the Jury. If a confession is voluntary but false, the
Judge must admit it in evidence and put it to the jury with proper directions, as to

(y) Ashutosh Chakraverty, (1878) 4 C. 483 (491) (F. B.) .

(z) Ibid, p. 404.

(a) Bhutian Raj wan, (1869) 12 W. R. (Cr.) 49.

(b) Prabhu, 6 Cr. L. J. 141.

(c) Sadher Charan Das , (1921) 49 C. 000 : 20 C. W. N. 414 : A. I. R. (1922)
Cal. 409.

(d) Lalit Mohan Chakraverty, (1911) 38 C. 559 (579).

(e) Ibid, p. 588.

(f) ML Sukhia , (1922) 20 A. L. J. 669 : 24 Cr. L. J. 009 : 73 I. C. 497, followiii
Dalli, (1922) 20 A. L. J. 326 : 23 Cr. L. J. 283 : 06 I. C. 427 : A. 1, R. (1922) (All.)
233.

554

THE INDIAN PENAL CODE

[CHAP. XVI

its falsity, for the purpose of appraisement of its worth. If the confession is true,
but the Court doubts its voluntariness, it must be excluded from evidence (g).

The Madras High Court has recently held that a statement by a witness
before the Committing Magistrate is admissible under s. 288 of the Criminal Pro*
cedure Code, although from which statement he resiles in the Sessions Court (h),
but it is unsafe to rely upon the statement of such witness (i).

Benefit of doubt : — Where it was found that the accused had a motive for
the murder and they joined in a conspiracy with the other accused, but they did not
begin the attack, and it was doubtful if the death blows were inflicted by them, upon
these circumstances the Allahabad High Court commuted the sentence of death to
transportation for Jife (j). Where accused was charged with murder and the only
evidence against him was that he was seen last in the company of the deceased at
about 8 o’clock in the night, and, that when the body of the deceased was discovered
the next morning, it was held that in the absence of other evidence — circumstantial
or direct, tending to show that he was concerned in the crime, the accused was
entitled to an acquittal (k). Where the circumstantial evidence relied on does
not exclude the reasonable possibility of some person other than the accused having
committed the crime, the accused must be given the benefit of doubt (1). Four
days after the disappearance of a certain person from a village, a dead body was found
floating in the canal, fifty miles from the village ; the body was not definitely identi-
fied as that of the missing person. Suspicion however fell on the accused, a cousin
and reversioner of the deceased, the only evidence against him being that he
pointed out two places at which blood-stained earth was found, the Sessions Judge
convicted the accused under s. 302 and sentenced him to death, the Madras High
Court gave the accused the benefit of doubt (m). The Lahore High Court held
that the identity of the body not having been established the remaining evidence
was not sufficient to justify the conviction of the accused (n).

Concerted attack : — Ss. 302 and 34. Where all the accused joined in the
attack and death was the result of the beating inflicted by them all jointly,
it was held that all are guilty of murder (o). Where several persons join in bearing
another with lathis , and inflict such serious injuries on him that he dies two days
after the beating, held that they must have krtown that at the least they were causing
injury which was likely to cause death, and if death resulted, they are all guilty
of murder (p). Where a number of men armed with lathis make a concerted attack
upon another man and practically kill him on the spot, inflicting injuries on the head,
it was held, that the accused are guilty of murder (q).

E vidence-y Corpus delect i : — 44 It has been considered a rule, that no person
should be convicted of murder, unless the body of the deceased has been found ;

(g) Panchkowri Dutt , (1924) 52 C. 67: leading case on Confession followed in
Raggha. (1925) 23 A. L. J. 821 (F. B.)

(h) Vellarah Kone, (1022) 45 M. 766 : 43 M. L. J. 222 : (1922) M. W. N. 506 :
24 Cr. L. J. 417 : 72 I. C. 529 : A. I. R. (1923) M. 20.

(i) Ayyampermal Pillai , (1925) M. W. N. 319.

(j) Ckattar Singh , (1878) 2 A. 33.

(k) ChiddaK (1922) 20 A. L. J. 564 : 23 Cr. L. J. 452 : 67 I. C. 724 : A. I. R.
(1922) All. 340.

(l) Mt. Daulat Bai , (1923) 25 Cr. L. J. 424 : A. I. R. (1923) Lab. 537.

(m) In re. Vuppellapu Vtraswamy, 13 Cr. L. J. 249: 14 I. C. 601 (Mad.).

(n) Jagtu, (1923) 5 L. L. J. 417 : 25 Cr. L. J. 173 : 76 I. C. 397 : A. I. R. (1924)
L. 168.

(o) Barendra Kumar Chose , (1924) 52 I. A. 40 : 52 C. 197 : 29 C. W. N. 181 :
(1925) M. W. N. 26 : 27 Bom. L R. 148 : 3 Pat. L. R. 1 : 26 P. L. R. 50 : 6 Pat.
L. T. 169 (P. C.) : A. I. R. (1925) P. C. 1.

(p) Ummed % (1923) 45 A. 727 : 21 A. L. J. 623 : 24 Cr..L. J. 826 : 74 I. C. 858 :
A. I. R. (1924) All. 145.

(q) Sipahi Singh , (1922) 45 A. 130 : 20 A. L. J. 900 .* 24 Cr. L. J. 106 : 71 I. C.
234 : A. I. R. (1923J All. 88.

555

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY

and Hale says : * I would never convict any person of murder or manslaughter,
unless the fact were proved to be done, or at least the body be found dead *
(2 Hale, 290). But this rule or caution must be taken with some qualifications ;
and circumstances may be sufficiently strong to shew the fact of the murder,
though the body has never been found” (r).

"The term 4 corpus delecti* is an invention of the juristsof the middle ages
and was used by them to denote the whole of the facts which constituted the
crime of killing when the body of the killed had been found. A mixture of the
German and Roman views led to the proposition (which has found its way into the
English penal law) that the proof of the aggregate of facts constituting the offence
failed when the body was not found. The expression was then extended to other
offences, and was used to denote that the qualities necessary to bring a fact within
the operation of a rule of criminal law had been shown to attach to that fact. The
jurists of the middle ages, however, never conceived the dead body, in murder, or
the object stolen in theft to be that ‘corpus/ The expression itself has many
vices, but in the sense in which its authors used it is not least intelligible " (s).

A girl was indicted for the murder of her child, aged sixteen days. She was
proceeding from Bristol to Llandogo and she was seen near Tintern with the child
in her arms at 6 p.m., but she was subsequently seen without the child. The
body of the child was afterwards found in the river Wye, near Tintern which
appeared not to be the child of the prisoner. It was held that the prisoner must
be acquitted (t).

Where the ‘ corpus delecti ' is not established, there can be no conviction for
culpable homicide not amounting to murder, nor for intentional omission to give
notice of an offence which has not been proved to have been committed (u). In
another case, where the only point was, that the body of the deceased had not been
found but the offence having been committed in a boat by sriking the man (alleged
to be murdered) on the head with a heavy paddle, knocking him overboard in a large
river in the height of rains, and as he was not heard of since then, it was held that
it was impossible to suppose that the man was sitll alive (v) ; but the Allahabad
High Court has held that it is not imperatively essential in order to justify a con*
viction for murder that the ‘ corpus delecti * should be forthcoming (w). Where
the dead body was not actually found but the conviction was based upon the pri-
soner’s own confession that he had pushed the deceased woman out of a boat at
night, it was held that the Judge exercised a proper discretion in not passing sen-
tence of death (x). Norris, J., held : “ I will not go so far as to say that under no
circumstances, in this country, could a charge of murder be sustained without proof
of the finding of the dead body, but considering the well authenticated instances
of the subsequent appearance in the flesh of persons said to have been murdered,
and whose death has been deposed to by eye witnesses, the production of bones,
alleged to be those of a man, and discovered to be those of a woman, and the numer-
ous false charges which are brought against innocent people, I should require the
strongest possible evidence as to the fact of the murder if the dead body were not
forthcoming M (y). Where there is no evidence to show what became of the corpse,
but the prisoners confessed in the most circumstantial manner to having killed

(r) Russel , 8th Edition, Vol. I., p. 781, 782.

(s) (1873) 7 M. H. C. R. (App.) xix.

(t) Hopkins , (1838) 8 C. and P. 591.

(u) Ram Ruchea Singh, (1805) 4 W. R. (Cr.) 20 (1925) 23 A. L. J. 821.

(v) Purusoolah Sikdar, (1867) 7 W. R. (Cr.) 14.

(w) Bhagirath, (1880) 3 A* 383 (384) ; Ragghu, 26 Cr. L J. 1431 (F, B.) : A. I. R.
(1925) All. 627, followed ifc Munda, A. I. R. (1931) Lah. 25.

(x) Budduruddin , (1869) 11 W. R. (Cr.) 20.

(y) Adu Shihder , (1885) 11 C. 635.

THE INDIAN PENAL CODE

556

[CHAP, XVI

the deceased, it was held that the finding of the body is not absolutely essential to
a conviction (z).

Circumstantial evidence Russel says : “ When fact itself cannot be
directly proved by an eye-witness or an ear-witness, or an authentic and probative
document, that which comes nearest to the proof of the fact is the proof of the cir-
cumstances which necessarily or usually attend such facts. Proof of the existence
of such circumstancescreates a presumption, i.e., entitled the court or jury to infer
that the fact itself existed or did not exist unless and until the presumption, or
inference is rebutted by other evidence, for they stand instead of the proof till the
contrary be proved (vide Stephen’s Digest Ev. Act I). In criminal cases it is
often impossible to produce a witness who saw the act committed ; and recourse
must necessarily be had to circumstantial evidence, i.c., to proof of circumstances,
from which the commission of the act may be inferred by the jury. Thus where
an indictment for murder was supported entirely by circumstantial evidence, and
there was no fact which, taken alone, amounted to a presumption of guilt ; Alderson,
B., told the jury that before they could find the prisoner guilty they must be satisfied
4 not only that those circumstances were consistent with bis having committed the
act, but they must also be satisfied that the facts were such as to be inconsistent with
any other rational conclusion than that the prisoner was the guilty person/ and
he then pointed out to them the proneness of the human mind to look for, and often
slightly to distort the facts in order to establish such a proposition, fo: getting that
a single circumstance, which is inconsistent with such a conclusion is of more
importance than all the rest inasmuch as it destroys the hypothesis of all guilt ” (a)

Wills say* : — “ In order to justify the inference of guilt , the inculpatory facts
must be incompatible u ith the innocence of the accused , and incapable of explana-
tion upon any other reasonable hypothesis than that of his guilt. This is the funda-
mental rule, the experimentum crucis by which the relevancy and effect of circum-
stantial evidence must be estimated ” (b).

Hill, J., (Prinsep and Harrington, J.J., concurring) in a Full Bench decision
of the Calcutta High Court on a charge of forgery held as follows : — M I may
observe that the learned Judge in placing the case before the Jury appears to me to
have failed to apply the principle, which, so far as I know, is a fundamental one
and of universal application in cases dependent on circumstantial evidence, that in order
to justify the inference of guilt the incriminating facts must be incompatible with the
innocence of the accused and incapable of explanation upon any other reasonable
hypothesis than that of his guilt " (c).

The distinct and proving power of circumstantial evidence depends upon its
incompatibility with any reasonable hypothesis other than that of the truth of the
principal fact in prool of which it is adduced (d). If the accused is to be convicted
on circumstantial evidence, the circumstances must be such as to exclude all rea-
sonable probability of his innocence (e) Where the evidence against a person
convicted of murder consist only of a statement made by a brother of the deceased
that he saw' him run away after the commission of the offence, and where against
that evicdence there is a strong array of circumstantial evidence in favour of the
accused, e.g ., omission of his name in the first report, the missing jewels not being

(z) Pctta Gazi, (1865) 4 W. R. (Cr.) 19.

(a) Russel, 8th Ed., Vol. II. 1804, 1805.

(b) Wills, Circumstantial Evidence, 6th Ed. 311.

(c) Hitrjee Mall v, Imam AH Sarkav, (1903) 8 C. W. N. 278 (286) F. B. * fehera

Bibi , (1930) 35 C. W. N. 160: 62 C. L. J. 417. ' J

(d) Ptf Jenkins, C. J., in Upendra Nath Das , (1914) 19 C. W. N. 653 (F B ) *
21 C. L. J. 377 (384) : 16 Cr. L. J. 561 (565) : 30 I. C. 113,

(e) Muhammad Yar, (1920) 4 L. L. J. 235 : A. I. R. (1922) Lah, 263.

557

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY

traced out, the accused not absconding after the alleged offence, a reasonable doubt
arises the benefit of which must be given to the accused (f). A violent presump-
tion arises when a man dies in his own house surrounded by his own family and
poisoned shortly after eating food which must have been prepared for him by his
wife and no explanation is forthcoming from the occupants of the household as to
what had happened to him to cause his death. Such presumption becomes a cer-
tainty when in addition to such violent pi esumption the person accused are proved
to have been guilty of persistent lying in an attempt to account for the absence of
the accused and are also shown to have hidden the corpse to save themselves (g).

Failure to explain principles to be followed in dealing with circumstantial
evidence has been held to be a misdirection (h).

In a case of murder the evidence against the accused was that the deceased
was last seen alive in his company, that he disappeared immediately after the event
and that instead of accounting for his disappearance he set up a palpably false
defence that he did not know the deceased and did not accompany the latter
to the scene of offence, held that these facts and circumstances were sufficient
to bring the offence of murder home to the accused (i).

Where the appellant was convicted of murder, and the motive assigned for the
crime was that the appellant considered his claim to the mohuntship superior to
that of the accused and evidence was produced to show that the appellant who
distributed milk to the Mohunt and others concerned with the Dehra introduced
into the milk which he gave to the deceased morphia or some other preparation
of opium, it was held that in the absence of strong motive, the evidence adduced
could not be considered sufficient to prove the guilt of the appellant (j). If it is
proved that a person was found soon after the murder of another person, in posses-
sion of property which was on the person of the latter when last seen alive, an
inference might be drawn in some circumstances that he obtained possession of
the property by the murder of the deceased ; but it is essential to justify the in-
ference that there is satisfactory proof that the property was in fact in the possession
of the deceased when last seen alive (k). Where the evidence leaves no room for
doubt that accused enticed away a child of eight, and deliberately murdered him
for the sake of petty trinkets, if the £ourt is satisfied beyond reasonable doubt
that the accused is guilty of murder and that the circumstances of the case require
the imposition of a death sentence it is absolutely immaterial where the conviction
is based on direct or circumstantial evidence (1). Where unexplained possession of
stolen property belonging to a deceased person is the only circumstance appearing
in evidence against an accused charged with ‘ murder * and * theft/ held that
he cannot be convicted of murder unless it is satisfactorily proved that possession
of the property could not have been transferred from the deceased to the accused
except by the former being murdered (m). Where the accused, a girl of 16, was
held guilty oi deliberately killing her husband by means of arsenic poison
which she mixed up with the food cooked and served by herself to the husband ;
it was held that the offence committed by the accused cannot be regarded as any-
thing less than murder, but having regard to the fact that she was a mare girl of 16
years she was sentenced to transportation for life (n).

(f) Sundara Gounden, (1911) M. 73 7 12 Cr. T7 JThnT: 12 I.C 52t7

(g) Har Piari , (1920) 24 A. L. J. 958 : 27 Cr. L. J. 1008 : A. T. R. (1920) A.737.

(h) Johura Bibi , (1930 ) 52 C. L. J. 417 : 35 C. W. N. 169.

(i) Faraddin, (1929) 120 I. C. 529 : A. I. R. (1930) I-ah. 265.

(j) Kala Singh , (1911) P. L. R. No. 241 of 1911 : P. W. R. No. 25 of 1911.

(k) Movila Kurmiah, (1913) M. W. N. 145 ; Chiareddi Munaya , (1911) 21 M. L. J.
1071: (1911) M. W. N. 478.

(l) The Public Prosecutor v. Paratnaddi, (1921) 44 M. 443.

(m) Sogaimuthu Padavachi, (1925) 50 M. 274.

(n) JashaBewa, (1907) 11 C. W. N..0O4: 6 Cr. L. J. 154 followed in Mnniandi,
(1914) 16 M. L. T. 535 : (1915) M. W. N. 34 : 10 Cr. L. J, 28 : 20 I, C. 332.

558

THE INDIAN PENAL CODE

[CHAP. XVI

Dying declaration Where dying declaration was not even mentioned
in the First Information Report and where a desire on the part of all the witness for
the prosecution was to prolong the life of the deceased, so as to fit in with the story
of dying declaration, it was not relied upon by the High Court and the appellants
convicted of murder were acquitted (o).

Knowledge or intention The words ‘ or with the knowledge that he is
likely by such act to cause death * in s. 29 of the Code must be read in the
light of the language of s. 300 of the Code, and so read that they are not
applicable to a case where specific bodily injury is intentionally caused to a particular
person (p). There is one very broad distinction between the fourth clause of
s. 300 , and the first three clauses — in the latter the important thing is an
intention to kill or to hurt, while the fourth clause says nothing about intention (q).

Where the accused administered dhutura poison to A and B, both of whom
died from the effects thereof, and on the following day administered the same
poison to C and Z), the former got ill and recovered but the latter died, it was held
that the accused was guilty of the offence of murdering D, for when he administered
dhutura , he committed an act, which even if not committed with the intention of
causing death or causing bodily injury likely to the knowledge of the offender or in
the ordinary course of nature sufficient to cause death, was so imminently dan-
gerous that it must in all probability came death or such bodily injury as is likely
to cause death (r).

In cases of dhutura poisoning, it is always necessary to ascertain the object
with which dhutura was administered, and the best indication of the intention of
the offender is to be gathered from the amount of dhutura which he administered (s).

Where two persons, who were armed with chhavis, attacked, the deceased, who
was their enemy, and inflicted two incised wounds on his head, one of which frac-
tured his skull and caused his death, it was held that both of them were equally
responsible for the result of their joint assault, and were guilty of an offence under
s. 302 (t).

Culpable homicide is not murder unless the act by which the death is caused
is done with the intention stated in one or more of the four clauses of s. 300. These
four clauses are to be interpreted in the light of the four illustrations appended
to it — one for each clause. Where the question is whether thfe injuries are suffi-
cient in the ordinary course of nature to cause death (I) the weapon used and (2)
the injuries caused must be taken into consideration (u).

Where the accused forced open a door and aimed a lathi blow at a woman
who was trying to bar the accused's passage which struck a child in her arms and
killed it, it was held (I) that the accused could only be convicted of the offence of
striking the woman, (2) that inasmuch ar the accused used a lathi and struck the
blow with some force he must be held to have intended to cause grievous hurt (v).
The fact that a person is killed with repeated blows conclusively negatives the plea
that there was no intention to kill the deceased or that the deceased Was killed by

A

(o) Sohi Sheikh, (1931) 54 C. L. J. 244. ~™~

(p) Rem Asre, (1922) 24 Cr. L. J. 513 : 73 I. C. 49 : A. I. R. (1923) Oudh 97.

(q) Nawab, (1914) P. L. R. No. 203 of 1914 : P, W. R. No. 45 of 1914 (Cr.) : 16
Cr. L. J. 010: 26 I. C. 522.

<r) Lola, (1911) P. L. R. No. 32 of 1911 : 12 Cr. L. J. 125 : 9 I. C. 731.

(s) Kesar Din, (1920) P. L. R. No. 4 of 1020 : P. W, R. No. 3 of 1920 : 21 Cr. L. J.
319: 551. C. 479.

. (t) Waryam Singh , (1923* .. L J. 02 : 24 Cr. L. J. 935 : 75 I. C. 359 : A. I. R.

923) Lah. 598.

(u) Daras, (1922) 25 Cr. L. J. 1 : 75 I. C. 089 A. I. R. (1923) Lah. 317 ; Nga
Khan, (Wl\) 11 L. B. R. 115 : 23 Cr. L. J. Ill : 05 I. C. 495.

(v) Day al Singh, (1922) 5 L. L. J.228: 24 Cr. L. J.4: 71 1. C. 62: A. I. R. (1924)
Lah. 47.

659

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY

her mistake. A murdered his wife. He alleged that he caught her in the act of
adultery with one 5 whom only he intended, to kill. From the evidence it appeared
that there was doubt about the immediate circumstances under which the crime was
committed and that there was indication of misconduct on the part of the deceased.
It was held that the accused should be convicted of murder (w).

In t ention : — Where an accused, while drunk, struck a man with a billet of
wood which him and immediately after struck another who died at once,

it was held that the accused must be deemed to have intended to cause an injury
to the deceased which he knew would be likely to cause death, but it was not
necessary in the circumstances of the case to impute to him the intention of causing
an injury which in the ordinary course of nature would cause death (x). A brutal
assault with lathis resulting in the death of the person assaulted does not ordi-
narily amount to murder, unless the accused intends to cause death or to cause such
bodily injury as is sufficient in the ordinary course of nature to cause death (y).
If a person stabs another with a dagger or knife in the abdomen, with sufficient
force to penetrate the abdominal walls, and the internal viscera, he must undoub-
tedly be held (whatever his station in life is) to have intended to cause injury suffici-
ent in the ordinary course of nature to cause death, and the conviction of the accused
under s. 304 was altered to one under s. 302 (z). In order to constitute the offence
of culpable homicide amounting to murder it must be found that the act which
caused death was done with the intention of causing death, or with the intention
of causing bodily injury sufficient in the ordinary course of nature to cause death.
Thus where the accused stabbed the deceased in the left side in a position where
he was very likely to cause very dangerous injury to the internal organs, the
Rangoon High Court inferred that the accused did cause death with the intention
of causing death and held that the accused was guilty of murder (a). If a person
receives grievous injuries and is detained in hospital and as a result of those injuries
pneumonia supervenes and the victim dies, the perpetrators of the attack upon
him are guilty of murder (b).

Where accused attacked the deceased and inflicted four injuries on him, none
of which was on a vital part and death resulted because of sceptic poisoning, the
Rangoon High Court held that the apt of the accused fell within the second part
of this section (c)-. A plan who cuts another even on the leg with such ferocity
and with such a weapon as to cause such an injury that the leg is almost severed,
the muscjes and bones being completely cut, must be presumed to have intended
to cause injury sufficient in the oridinary course of nature to cause death, and if
death results, he is guilty of murder unless the case is shown to fall within the excep-
tions to s. 300 (d). Where in a trial under this section it is impossible from the
nature of the injuries inflicted, to come to any other conclusion than that the persons
who committed the crime, if there were more than one, had a clear and determined
intention of doing the victim to death in a murder which leaves no doubt of their
intentions, it is immaterial which of the participants in the crime struck the fatal

(w) Rakhia, (1911) P. L. R. No. 167 of 1911 : P. W. R. No. 66 of 1011 (Cr.) :
12 Cr. L. J. 214: 10 I. C. 119.

(x) Nga Po Lu, (1911) 4 Bur. L. J. 263 : 12 Cr. L. J. 624 : 12 I. C. 292.

(y) Saidino, (1916) 9 S. L. R. 99 : 10 Cr. L. J. 710 : 30 I. C. 998.

(*) On Sheve alias Kalaw, (1923) 1 R. 436: 26 Cr. L. J. 247: 76 I. C. 711 :
A. I. K. (1924) Rang. 93.

(a) Apalu, (1923) 1 R. 286 : 2 Bur. L. J. 94 : 24 Cr. L. J. 919 : 76 I. C. 296 :
A. I. R. (1924) Rang. 174.

(b) Fatla, (1927) A. I. R. (1928) Lah. 861 (2) : 29 Cr. L. J. 678 : 110 I. C. 230

following Nuro, (1914) 7 S. L. R. 83.

(c) Nga Po Chet, (1923) 2 Bur. L. J. 239 : 77 I. C. 889 : A. 1. R. (1924) Rang.

212. ^ s<

, (d) Kra Cahn V., (1923) 2 Bur. L. J. 103 : 26 Cr. L. J. 207 : 76 1, C. 676 : A. L. R,

(1923) Rang. 247.

560

THE INDIAN PENAL CODE

[CHAP. XVI

blow (e). A man, who deliberately strikes a blow with a weapon such as a tahwa
on the head of another in a position so that he can make no mistake as to what he
is doing, must know that his act is so imminently dangerous that it must in all
probability cause death, and the circumstances are aggravated when the murderer
is not one of those taking part in the original quarrel (0*

Motive : — In a prosecution under this section it is not necessary for the
prosecution to prove motive (g), but Mukerji, J., in Hazrat Gul Khans case (h)
held that motive though not a sine qua non is relevant.

Where two accused T and 5 were convicted of murder and sentenced to death
by the Sessions Judge and the motive of T for the murder was satisfactorily proved
but as against S there was no satisfactory evidence of any such motive, it was held
that in the circumstances of the case it was not necessary for the High Court to come
to any definite conclusion as to what the motive was which actuated S in committing
the murder (i). An anonymous letter is no evidence of its contents and when it is
produced some days after the occurrence under suspicious circumstances to supply
motive for the crime, it ought to be eliminated from the record (j).

Sentence — of death is the normal sentence. If the Court has any doubt it
should acquit accused persons (k). The view that where two or more persons band
themselves together for the express purpose of taking a man’s life, it is not right to
pass the death sentence, unless you can put your finger on the accused who delivered
the particular blow that is to be regarded as mortal, is wholly erroneous (1). Where
murder cannot be said to be wholly deliberate and cold-blooded, and where there
may be a certain amount of legitimate provocation rankling, capital sentence was
reduced to transportation for life (m).

When an^ accused person was found to have murdered his wife under a mis-
taken impression that she was unchaste to him, the Calcutta High Court held that
taking into consideration that he was the victim of such a deluded feeling, the
sentence of death was not proper and sentenced the accused to transportation for
life (n).

Where the attack was a premeditated one, the mere fact that the accused had
taken some liquor was held to be not a sufficient reason- for not imposing the
penalty of death (o).

Where accused, a girl of 16 was held guilty of deliberately killing her husband
by means of arsenic poison, in consideration of her age, held that she should be trans-
ported for life (p). Where the accused on his own confession was convicted of
murder for having pushed the deceased out of a boat at night, it was held that the
Judge exercised a proper discretion in not passing sentence of death (q). In a
case under s. 302 the law does not give a discretion to a Court which convicts of that
offence to award or not the punishment provided for it. The only discretion which

(e) BaldeoKoeri , (1021) 0 Pat. L. J. 241 : 22 Cr. L. J. 433 : fil I. C. 786.

(f) Bantu , (1922) 23 Cr. L. J. 711 : G9 I. C. 439 : A. I. R. (1923) Lah. 08.

(g) Nishi Kanta Banikya , (1924) 41 C. L. J. 35.

(h) (1927) 32 C. W. N. 345 : 47 C. L. J. 240 : 15 Cr. L. J. 370.

(i) Torap Ali , (1916) 17 Cr. L. J. 380 : 35 I. C. 818 (Cal.).

(j) Ayyamperumal, (1025) M. W. N. 319.

(k) Sohrae Sao, (1929) 9 P. 474.

0) Pedda Tirumalingadu, (1928) 56 M. L. J. 194 ; Parshadi. (1028) 7 A. L. J.

(m) In re. Kolanda Nayar Khan, (1030) 53 M. 861 : 69 M. L. J. 039,

(n) Dinabandhu Moitra, (1903) 8 C. W. N. 218.

(1 920) 1 App^*Cr ' 4^79 ^ ^ Director of Public Prosecutions v. Beard,

(P) Jasha Bewa, (1907) 1 1 C. W. N. 904,

(q) Budduroodeen, (1869) 11 W. R. (Cr.) 20,

SEC. 302 ] OFFENCES AFFECTING THE HUMAN BODY

561

the law allows to the Court is to determine which of the two punishments pre-
scribed should be awarded, regard being had to the circumstances of the particular
case (r).

Where six persons were convicted of murder and sentenced to death, the
accused appealed to the High Court and there was a difference of opinion and the
case was referred to Mr. Justice D. Chatterjee and nearly six months elapsed before
the appeal was finally disposed of, it was held that such delay was a sufficient reason
for refraining from imposing the extreme penalty (s). On a difference of opinion
when the matter is referred to a third Judge, C. C. Chose, J., held concurring with
the opinion expressed by WoodroffeJ., many years ago that when the third Judge
finds that the one Judge favours death penalty and the other a sentence of trans-
portation for life that in itself is sufficient for holding that the death penalty
should not be inflicted. But that is not an inflexible rule and the third Judge
ought to go into the case himself (t).

Provided the Court is satisfied beyond reasonable doubt that the accused is
guilty of murder and the circumstances of the case require an imposition of death
sentence, it is absolutely immaterial whether the conviction is based on direct or
circumstantial evidence (u).

If there exist any grounds for mercy the Judge after passing sentence should
recommend to the Crown for leniency (v).

Where the Sessions Judge convicted the accused under Ss. 302 and 149 and
sentenced them to various terms of imprisonment, it was held, the sentences were
illegal as the lowest sentence for an offence under s. 302 is transportation for life (w).

Mitigating circumstances : — A Full Bench of the Lower Burma Court
has held that the extreme sentence is the normal sentence, the mitigated sentence is
the exception. It is not for the Judge to ask himself whether there are reasons for
imposing the penalty of death, but whether there are reasons for abstaining from
doing so (x). The same Court following the above Full Bench decision held that
mere absence of premeditation was ordinarily an insufficient reason for not passing
a capital sentence (y). In Umrao's oase (z) the fact that the accused did not by a
single blow intend to kill the deceased and the fact that there was a quarrel were
held to be mitigating circumstances. Similarly in Mohant Narain Das's case (a)
capital sentence was commuted and the fact that he was suffering doubtless under a
deep sense of wrong and helplessness and lost his head and the fact that it was not
proved that he ordered the final measure were mitigating circumstances. In
Subba Motions case (b) the conventional practice in factious cases to include
all the adult males of a family and their connections by marriage was deprecated.
There the sentence was commuted to one of transportation as the crime was the
result of a sudden quarrel and some provocations.

(r) Dewan Singh , (1895) 22 C. 805 (809, 810).

(s) Autor Singh , (1913) 17 C. W. N. 1213 : 14 Cr. L. J. 642 : 21 I. C. 882.

(t) Dukari Chandra Karmakar, (1929 ) 33 C, W. N. 1226.

(u) Public Prosecutor v. Peramandi, (1921) 44 M. 443, (445).

(v) Abdur Rahaman Said, (1896) Rat. Unrep. Cr. C. 852.

(w) In re. Dwaiswami Thetian, (1911) 9 M. L. T. 510 : 12 Cr. L. J. 145 : 9 I. C.

(x) Crown v. Tha Sin ', 1 L. B. R. 216 (F. B.) followed in Nga Shwe Hla U., (1922)
11 L. B. R. 323 : 1 Bur. L. h 66 : 23 Cr. L. J. 437 : 67 T. C. 613 : A. I. R. (1922)
L. B. 32.

(y) Nya Myal Kaing, (1916) 18 Cr. L. J. 113 : 37 I. C. 415 (L. B.).

(z) (1923) 21 A. L. J. 316 : 24 Cr. L. J. 753 : A. I. R. (1923) All. 355 followed
in Kesava Chetty , (1931) JV1. U* N 267

(a) (1921) 3,L. 144 : 4 L. L. ]: 91 ; 23 Cr. L. J. 513 : A. I. R. (1922) Lah. 1.

4b) (1929) M. W. N. 789." * > ;

562

THE INDIAN PENAL CODE

[ CHAP. XVI

Provocation : — Where the wife ran away from her husband's house and the
husband who unfortunately happened to carry a chopper accidentally, but not
with intent to kill her, struck her with the gandasa (chopper), it was held that the
conviction under s. 302 was wrong and having regard to the circumstances of the
case the conviction was altered to one under s. 304 (z). Where the crime was not
a premeditated one and it was quite clear that the accused must have acted on a
sudden impulse as death took place by st.angulation effected by twisting deceased's
hair round her throat, it was held that some pudden provocation must have arisen
to impel the accused to do this deed and in the absence of any evidence on this
point the accused is entitled to the benefit of doubt (a). Where the accused,
a Bania, finding the door of his house chained from inside, demanded admittance
and discovered his daughter-in-law in the company of a Mahommedan Fakir,
seized hold of the paramour and also of an axe, but being an old man, was unable
to prevent the escape of the paramour and he thereupon turned upon the young
wife and hacked her to death, inflicting something like sixteen serious injuries in-
cluding complete severance of the head, the Allahabad High Court held that the
accused acted under grave and sudden provocation which removed the act from the
category of murder, but sentenced the accused to rigorous imprisonment for a
period of 5 years (v). The Nagpur Judicial Commissioners' Court has held that
provocation must be sudden as well as grave to reduce the intentional killing of
another from murder to mere culpable homicide (c).

Intoxication : — Where the death of the deceased was caused in the course
of a drunken brawl the sentence was commuted to one of transportation for life (d)

Age or sex of accused : — Mere absence of premeditation or deliberate inten-
tion to kill is not an adequate reason for not passing sentence of death so also the fact
that the accused is a woman is not a conclusive reason for not passing a sentence of
death (e). The age or sex of a murderer cannot of itself be sufficient reason for
leniency (f). Ordinarily youth is itself an extenuating circumstance but U cannot
be held that in every case of murder where the accused is under a certain age,
lesser penalty must be awarded (g), but it should, be taken into consideration with
other facts of the case (h). Youth is a ground which a Court can properly take into
consideration in determining the punishsaefit fof murder ,{i).

Ordinarily youth is in itself an extenuating circumstance in murdei* cases as
in other criminal cases. Cases of extreme depravity do occur in which the youth
of the accused may not be a sufficient reason for imposing a lesser sentence. But
youth of the criminal is a circumstance which should always be taken into account
by the Sessions Court in exercising the discretion vested in them by s. 302 G).

Comparative lenity to women is a commonly accepted rule of practice though,
needless to say, not of law, but in dealing with an atrocious crime like murder with

(z) Mahadoe, (1922) 24 Cr, L. J. 808 : 74 I. C. 712 : A. I. R. (1922) Oudh 112.

(a) Malta, (1923) 5 L. L. J. 528 : A. I. R. (1923) Lah. 691.

(b) Hira Lai , (1921) 22 Cr. L. J. 341 : 61 I. C. 165 (All.).

(c) Manjoo, (19 22) 24 Cr. L. J. 570 : 73 L C. 266; A. I. R. (1923) Nag. 251.

(d) Judagi Malian, (1929) BP. 911 : A. I. R. (1930) Paf. 168. 1

(e) Mi Shove Y , (1923) 1 R. 751 : 2 Bur. L. T. 277 :25 Cr, U J. 1161 : 81 I. C.

945 A. I. R. (1924) Rang. 179. ^

(f) Kachria, (1921) 18 N. L. R. 101 : 64 I/C. 277 : - A. I. R, (1922) Nag. 65;
Pvodyot Kumar Bhattacharjee, (1932) 33 Cr. L. J. 837.

(g) NgaKan Hla, (1914) 16 Cr. L. J. 95; 26 I. C. 1007; Nga Ba Thin, (1922)
| Bur. L. J. 70 : A. I. R. (1822) L. B. 34, following Jasha Bewa , II C. W. N. 904 :

6 Cr. L. J. 154 (Bur.) ; Gehna Sardara, A. I. R. (1930) All. *5 & *

(h) Tiri, (1930) 9 R. 81. ■

* (i) Nga ThaKin, (1911) 1 tfM B. R. 87 : 12 Cr.X. J. ,448 : fl I. C. 792.'

(j) Chit Tha, (191$: 11 Bur. L. T: 100 r 9L. B. R, 165 : 19*£r, L. J. 648 ; 45
I* C. 840. * *» * I-* 4. ..

SECS. 303-04 ] OFFENCES AFFECTING THE HUMAN BODY 563

horrible cruelty committed by a grandmother on her five years old grand-child,
the mere sex of the criminal should not bar the imposition of death sentence (k).

Where the accused, a member of an aboriginal tribe, killed a woman under
the impression that she was a witch and was responsible for the illness of his wife
and daughter, it was held that having regard to the motive proved in the case, and
to the fact that the murder was committed in the honest, though unfounded, belief
of saving the life and alleviating the sufferings of others, a sentence of transporta-
tion for life would meet the ends of justice (1).

Accused person on a capital charge should not go undefended The

Government by a Circular has held that accused persons on a capital charge should
not go undefended (m).

303. Whoever, being under sentence of transportation for
Punishment for mur- life, commits murder, shall be punished

der by life convict. with death.

Where a person under sentence of transportation for life on a conviction of the
murder of a child for the sake of his ornaments is found guilty of murder on a
subsequent and different charge, the only sentence that can be passed on him
according to this section is one of death (n).

304. Whoever commits culpable homicide not amounting
Punishment for cui- to murder, shall be punished with trans-

pabic homicide not portation for life, or imprisonment of either
amounting to murder. description for a term which may extend

to ten years, and shall also be liable to fine, if the act by which
the death is caused is done with the intention of causing death,
or of causing such bodily injury as is likely to cause death ;

or with imprisonment of either description for a term which
may extend to ten years, or with fine or with both, if the act is
done with the knowledge that it is likely to cause death, but
without any intention to cause death or to cause such bodily injury
as is likely to cause death.

This section provides punishment for the offence of culpable homicide not
amounting to murder as defined in s. 299, supra .

For commentary see also commentary on s. 299, supra.

Scope : — “ This section creates no offence, but provides the punishment for
culpable homicide not amounting to murder, and draws a distinction in the penalty
to be inflicted, where, an intention to kill being present, the act would have amounted
to murder, but for its having fallen within one of the exceptions to s. 300 and those
cases in which the crime is culpable homicide not amounting to murder, that is
to say, where there is knowledge that death will be a likely result, but intention to
cause death dr bodily injury likely to cause death is absent ” (o).

The first part of the section applies where there i$*guilty intention, and the
second part applies* where t^ere is no $uch intention but there is guilty knowledge (p).

(k) In re. Rasammal , (19l4) 16 Ci\ L. J. 20 : 26 I. C. 324 (Mad.).

(l) Mato Ho, (1930) l Pat. L % J.^82 : 21* Cr. L. J, 603 : 67 I. C. 171.

(m) Govt. Circular of 1919.

(n) Doorj odha# Shumanto alias Deejobar; (1673) 19 W. R. (Cr.) 45.

(o) Per Straight, J., Jdu Beg, (1881) 3 A. 776 (778).

(p) Ifhtulla Ahonga, (1981) 35 €♦ W. N. 456 <462). '

564

THE INDIAN PENAL CODE

[CHAP. XVI

The Punjab Chief Court has held that the first part of this section is intended to
include only those cases in which the act of the accused person would be culpable
homicide amounting to murder, but for the fact that it was committed in circum-
stances which render one or other of the exceptions to s. 300 applicale (q).

Knowledge that the act is likely to cause death is sufficient for conviction
under clause (4) of s. 300 but i« not sufficient for conviction under 2nd part of
s. 304 (r).

Ss. 304 and 149 :-A person was held to have been rightly convicted under
Ss. 304 and 149 when the order given by him was a general order to beat although
it was contended that giving merely the older to beat he could not be liable for
the results of the act of the person actually assaulting and that at the most he
could be held liable for abetting that person in voluntarily causing hurt (s).

Acquittal : — The Privy Council in Kishan Singh's case (t) has held that in
view of the provisions of s. 439 (4), Cr. P. Code, the High Court has no power in
revision to convert a finding of acquittal into one of conviction.

Procedure : — Cognizable — Warrant — Not bailable— Not compoundable —
Triable by Court of Session.

Where the offence was prima facie one of murder, the Magistrate empowered
under s. 30 has no jurisdiction to try it, but he must commit the accused to the
Court of Sessions under s. 302 (u).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

committed culpable homicide not amounting to murder by causing the death of—

and thereby committed an offence punishable under a. 304 of the

Indian Penal Code and within the cognizance of the Couit of Session (or the High
Court).

And I hereby direct that you be tried by the said Couit on the said charge.

Charge to the Jury s— In charging a Jury in a case of culpable homicide
not amounting to murder, a Judge should call upon the Jury to state which des-
cription of culpable homicide they consider the accused to have committed, s. 304
of the Code prescribing different punishments for that offence. Where the Judge
omitted to require the Jury to do this, the High Court held that the conviction
was for the lighter description of the offence (v). To explain the section by saying
that the first part applies where there is no guilty intention but there is guilty know-
ledge is a palpable misdirection (w).

The Calcutta High Court has held that it is the duty of the Judge to point out
the distinction between two classes of culpable homicide mentioned in s. 304,
and as this was not done, the High Court took it for granted # that the prisoners
were found guilty of the lighter desciiption of culpable homicide not amounting
to murder (x).

(q) Masti, (1911) P. L. R. No. 87 of 1911 : P. R. No. 3 of 1911 (Cr.) : P. W. R.

No. 9 of 1911 (Cr.) : 12 Cr. L. J. 274 : 10 I. C. 852. 1 ■'

(r) Nga Po Saw, (1923) 2 Bur. L. J. 99: A. I; R. (1924) Rang. 33.

(s) Ghanaahyam Singh, (1927) 6 P. 627: A. I. R. (1928) Pat. 100/

(t) (1928) 33 C. W. N. 1 (P. C ) : 30 Bom. L. R. 1572.

(u) Manga, A. I. R. (1928) L. 868.

( v ) Ameer Khan, (1869) 12 W. R. (Cr.) 35.

(w) Ifatulla Akonda, (1931) 35 C. W. N. 456. - .

(x) Kalicharan Ddss, (1871) 15 W. R. (Cr.) ll. ^ , -

SEC. 304 ] OFFENCES AFFECTING THE HUMAN BODY

565

In a trial under Ss. 302, 304 and 326 of the Code the charge to the Juryis defec-
tive in law where the Judge does not properly direct the jury to consider the intention
of the accused (y). Rutledge, C. J., observed in Nga Tin Gyi (y 1 ) " until the jury
intimated under which part of s. 304, I. P. C., the verdict fell, it would not in fact
be accepted and recorded. It was incomplete. And if their subsequent answers
to proper question? addressed to the jury show that they have arrived at no unani-
mous verdict under s. 304 at all, it is the duty of the Court to send them back for
further consideration/'

In a case under this section, where there are no eye-witnesses and no sufficient
evidence of motive, it is proper to leave the case to the jury (z) .

Where the Judge in explaining Ss. 302 and 304 eventually said : “ If how-
ever, you find he had neither the intention nor the knowledge requisite under
s. 302, consider his liability under s. 304.” He then continued : “ If you hold that
he intended to cause K such bodily injury that death would be a possible but not
the most probable result, you will find him guilty under s. 304, part I, or if you hold
that he had no such intention but knew as a reasonable man that K's death would
be a likely consequence of his act, you will find him guilty under s. 304, part II,’*
held that this direction would have been quite correct if he had not used the word
4 possible ” but had adhered to the words of the section and had used the word
‘ likely * (a). The practice of supplying the Jury with a copy of the Indian Penal
Code was deprecated in Wilsons case (b). A non-direction in the summing up
with regard to the right of private defence is bad in law and vitiates the charge (c).

Jury — Reference : — Verdict under s . 304 (2) if unreasonable from mere fact
of death having resulted. — The question in such cases is not concluded by the mere
fact that the injury caused did in fact result in death. What one has to see is
first, what degree of injury the man intend and secondly, what did he know as to
the consequences of such injury (d)?

Punishment for culpable homicide not amounting to murder:—

Where the accused, the parents of a child, offered the child to the crocodiles in a
tank in the belief that though the child would be taken away, it would be returned
unharmed, and thereafter would lead a charmed life, and attain to a good old age,
it was held that the accused was guilty of the offence punishable under the last
part of this section (e).

Where the accused was not shown to have struck more than one blow, and where
it was found that the blow was struck without any premeditation on a sudden
quarrel the conviction under this section was held right (f).

The accused suspected his wife and made preparations to catch her with
her paramour and when he got information that his wife and the deceased were
together he returned to his house and armed himself with a weapon so deadly
that one blow alone was sufficient to kill him. He went to the spot, caught the
couple in the act, and dealt the paramour a blow on the head which killed him
on the spot, the Allahabad High Court held the offence was one under s. 302 but

(y) Kya Nun. (1913) 8 L. B. R. 125 : 17 Cr. L. J. 154 : 33 I. C. 634.

(yl) (1926) 4R. 488.

(z) Naibulla Sheikh. (1926) 43 C. L. J. 488.

(a) Natabar Haidar. (1929) 50 C. L. J. 476 : 34 C. W. N. 223.

(b) Superintendent and Remembrancer v. Wilson. 30 C. W. N, 693 : 43 C. L. J.
537: A. I. R. (1926) Cal. 895.

(c) Basiruddin Sheikh. (1924) 28 C. W. N. 585 : 39 C. L. J. 525 : A. I. R. (1924)
C. 776.

(d) Damullya Molla. (1930) 34 C. W. N. 1127.

(e) Bharat Bepari. (11)20) 25 C. W. N. 676 : 33 C. L. J. 179 : 22 Cr. L. J. 526 :
62 I. C. 414.

(£) Gandu . 5 L, L. J. 414: A. I. R. (1923) L. 170 ; B iky am Singh. (1929) 27
A. L. J. 608 iGhanasyam Singh , (1927) 6 P. 627: A. I. R. (1928) Pat. 100.

566

THE INDIAN PENAL CODE

[CHAP. XVI

having regard to the circumstances of the case, the sentence should be transports-
tion for life and directed that the record be forwarded to the Local Government
with a recommendation that a still further reduction be made in the sentence
passed (g).

Wheie the accused killed the wife of his borther in course of a dispute which
arose over a pumpkin between his wife and the deceased and it was found that the
accused acted from impulse of the moment but had no intention to kill her, the
Allahabad High Court held that the conviction should be altered into one under
s. 304, and reduced the sentence to one of two years* rigorous imprisonment (h).
Where certain villagers were convicted under Ss. 304 and 436 for having made
an attack on the Chamar of the village resulting in the destruction by fire of their
Chanpal, and the death of a child therein, it appeared that on being attacked, the
Chamars fled fiom the spot and left the child inside the dumped. There was no
evidence that the Chanpal was used as a human dwelling and there was no evidence
showing that the accused knew that the child was inside when they set fire to it,
it was held that no offence under s. 304 or s. 436 had been established (i). Where
three peisons armed with clubs suddenly attacked the fourth and in the course of
the fight injuries were inflicted on the head and shoulder of the latter which re-
sulted in his death, it was held that the accused was guilty of an offence under this
section (j). The Lahore High Court has held that the practice of that Court in
hearing appeals from convictions under Ss. 302 and 304, I. P. C., when it is of
opinion that a lesser offence has been committed, to alter the conviction to one
under s. 325 or even in some cases to one under s. 323. It was further held that
criminal proceedings once legally instituted, whether upon a complaint or otherwise
do not terminate or abate merely by reason of the death of the complainant or the
person injured (k).

Where the prosecution did not prove that the accused had a common intention
to inflict any thing more than simple hurt on the deceased, the Lahore High Court
held the accused guilty under this section (1). Where several persons jointly attack
another with lathis , fracturing his skull and inflicting a number of other injuries
which result in his death, they are all equally guilty of culpable homicide even
though it may not be possible to prove which of them actually inflicted the fatal
blow (m). Where the accused attempted to enter a house in order to beat the owner
of the house and the latter *s wife, who was carrying her infant in her arms tried to
bar accused's passage by shutting the door : The accused forced open the door
and aimed a lathi blow at the woman which struck the child and killed it. It was
found that it was too dark for the accused to have perceived that the woman was
carrying a child, the accused was convicted under s. 304 but the Lahore High Court
altered the conviction into one undei 1 s. 325 (n). Where accused taxed his wife
with consorting and flirting with other men, and she replied, 4 what does it matter/
he, thereupon struck her on the cheek and she fell down abusing him. The
accused then gave a forcible kick on the prostrate body of the woman on her side

(g) Goshain, (1920) 18 A. L. J. 851. — ~

(h) Gonesha f (1924) A. I. R. (1925) All. 4, distinguishing Utnrao, (1924) 21 A. L. T.
315: 24 Cr. L. J. 753: A. I. R. (1924) All. 441.

(i) Khanjan , (1924) 25 Cr. L. J. 1190 : 82 I. C. 54 : A. I. R. (1924) All. 781.

(j) Mahomed Hossain , (1923) 25 Cr. L. J. 228 : 76 I. C. 692.

(k) Hazra Singh , (1920) 2 L. 27 in which Sultan Singh , (1909) 31 A. 608 and
Krishna Behari Sen v. Corporation of Calcutta , (1904) 31 C. 993 (F. B.) were referred
to.

(l) Mala Singh, (1921) 5 L. L. J. 121 : A. I. R. (1924) L. 61.

(m) Ghulam Hussain , (1923) 24 Cr. L. J. 673 : 73 I. C. 769 : A. I. R. (1924)
All. 78, following Ram Newaz, 35 A. 506 : 11 A. L. J. 804 :*14 Cr. L. J. 615 : 21 I. C.
663.

(n) Dyal Singh, (1922) 5 L. L. J. 228 : 24 Cr. L. J. 4 : 71 I. C. 52 : A. I. R.
(1924) L. 47. .

SEC. 304 ] OFFENCES AFFECTING THE HUMAN BODY 567

which caused her immediate death, it was held that the accused must be taken to
have known that the kick was likely to cause death and as such he was guilty under
the latter part of s. 304 (o). If one person causes the death of another, then if his
intention was to cause death or to cause bodily injury sufficient in the ordinary
course of nature to cause death, the offence would be murder, even though death
resulted in a way different from that expected by the assailant (p). Where in the
heat of passion, upon a sudden fight, accused struck one blow which proved fatal
on one N with an instrument used for scraping grass, under the mistaken belief
that N had come up to side the opposite party, and it was admitted that there was
no motive or enmity, held , accused was guilty under this section and not under
s. 302 (q). Where the accused were convicted under s. 304, Part II, for causing the
death of the deceased by violence and the medical evidence showed that the cause
of death was either concussion of brain due to head injuries or possibly opium poi-
soning, and the body of the deceased bore no signs of injuries, except four slight
superficial lacerations 1 % to 1 inch in length on the top of scalp, and the deceased
had admitted having taken opium, it was held that the prosecution had failed to
prove that the death was caused by any act of the accused, and therefore the
accused were entitled to an acquittal (r).

Where the deceased had been struck several blows with a piece of fire-wood
and the injuries inflicted were ( I ) a contused wound on the head which was not of a
dangetous character and had produced no serious results, (2) bruises and abrasions,
(3) contusion over the right lower rib, (4) two serious contusions over the left lower
rib, (5) and underneath these contusions the 9th and 1 0th ribs were fractured and
the spleen was ruptured and according to the medical evidence the spleen was not
that of a healthy man and the in jui ies inflicted and even the fracture of the ribs would
probably not have ruptured the spleen if it had been healthy, the Allahabad High
Court altered the conviction from s. 304 tc s. 325 (s). Where death was
caused by extensive beating with lathies but the injuries inflicted upon the deceased
were all simple except one whch fractured a finger bone, death being due to shock,
the Lahore High Court held that it would not be safe to hold that the accused
was guilty of murder but having regard to the number of injuries and the merciless
character of the beating the accused ^as found guilty of an offence under $. 304 (II)
of the Penal Code (t), but where a person dies as the result of simple injuries owing
to the fact that his spleen is diseased and it is not shown that the accused had know-
ledge of this fact, he can only be convicted of causing simple hurt (u).

Where a man of full age (f.e., above 18 years) submits himself to emasculation,
performed neither by a skilful hand nor in the least dangerous way and dies from the
injury, it was held that the persons concerned in the act were guilty of culpable
homicide not amounting to murder, but having regard to the full and intelligent
consent of the deceased, to the possible ignorance of the prisoners, the sentences
were reduced to a term of imprisonment ranging from 3 years to 2 years (v).

A youth of about 1 8 had, without any ancillary violence, sexual intercourse with
a well-developed girl, probably under 1 2 years of age, and in the opinion of the doctor
the girl’s death was due to shock caused by rupture of the vagina, held that the
accused could not be convicted under s. 304 but he was guilty of rape and notice

(o) In re. Maritnathu, (1923) M. W. N. 796 : 24 Cr. L. J. 721 : 73 I. C. 981 :
A. I. R. (1924) Mad. 41.

(p) Babu Nashya , (1927) 5 R. 817 (819) : A. I. R. (1928) Rang. 64.

(q) Bikram Singh , (1929) 27 A. L. J. 508.

(r) Jahangir , (1916) P. W, R. No. 16 of 1910 (Cr.) : 17 Cr. L. J. 147 : 33 I. C.

827.

(s) Mahabir. (1921) 19 A. L. J. 295.

(t) Bakshish Sfwgftlalias Bakshi t (1924) 26 Cr. L. J. 890 : A. I. R. (1925) L. 549.

(u) Bhajan Das , (1922) 24 Cr. L. J. 421 : 72 I. C. 533 : A. I. R. (1924) L. 218.
v) Baboolun Hijrah, (1868) 5 W. R. (Cr.) 7.

568 THE INDIAN PENAL CODE [ CHAP. XVl

was issued by the High Court upon the accused to show cause why the sentence
of 4 years rigorous imprisonment should not be enhanced (w).

Where the accused kicked a girl of tender age with such force as to pioduce
rupture of the abdomen in a healthy subject, it was held that the accused was
guilty under the latter part of s. 304 and he was sentenced to undergo rigorous
imprisonment for five years (x).

Where a snake-charmer exhibited in public a venomous snake, whose fangs
he knew had not been extracted, but without any intention to cause harm to any one,
placed the snake on the head of one of the spectators who was killed from the snake-
bite, it was held that the accused was guilty under s. 304 and was sentenced to three
years’ rigorous imprisonment (y).

Where the accused and the deceased having quarrelled, the accused took an
iron-shod stick, and struck one blow on the head of the deceased which caused his
death, the accused was convicted of murder, on appeal, the Bombay High Court
held that the accused was guilty under s. 304 and sentenced the accused to rigorous
imprisonment for five years (z).

Evil spirits : — P came to a shrine visited by people who play at being
* possessed ’ by spirits, and began swaying about in front of it. The accused

? questioned her and she replied that she was an evil spirit. It was in evidence that
or such 4 possessed * persons was to beat them. For the purpose of casting out
the remedy applied the evil spirit a Chimta (fire-tongs) was first employed ; that
proving unsuccessful recourse was had to a sangal (chain used for flagellation)
and kicking was also resorted to with the result that P, a young woman of 4 strong
stout and well-nourished ' body died of shock. There was no evidence to the effect
that the woman consented. Held , that the offence fell under s. 304, part II (a).

Applicability of S. 5b2, Cr. P. Code : — On a charge undei the latter part of
this section read with s. 149, regard being had to the youth and lelation with the
adult accused the minors were dealt with under s. 562, Cr. P. Code, in Bhutan
Chandra Hazra v. Kanai Lall Addya's case (b).

Ss. 304 and 109 : t A person giving ordcjrs is liable for the result of the act
of the person who carries out the order (c).

S. 34 is inapplicable : — S. 34 which is based on a common intention cannot
possibly be used with the second part of this section, which expressly excludes
intention. It could not be used with the first part eithef, except possibly in very
rare cases (d). S. 34 can apply to 2nd part of s. 304 (e), but the attention of the
learned Judges does not, however, seem to have been drawn to Aniruddhas
case(d).

304- A. Whoever causes the death of any person by doing
any rash or negligent act not amounting to
culpable homicide shall be punished with
imprisonment of either description for a
term which may extend to two years, or with fine, or with both.

Causing

negligence.

death bv

(w) Shambhu , (1924) 3 P. 410 : A. I. R. (1924) Pat. 553.

(x) Ketabdi Mundul , (1879) 4 C. 764.

(y) Ganesh Dooley , (1879) 5 C. 351.

(z) SardarKkan, (1916) 41 B. 27.

(a) Haku, (1928) 10 L. 555.

(b) (1926) 44 C. L. J. 208.

(c) Ghanashyam Singh , (1927) 6 P. 627.

(d) Aniruddha Mana , (1924) 26 Cr. L. J. 827 : A. I. R. (1925 C. 913, not followed
in Abdul Goffut Panchayet , (1926) 45 C. L. J. 131.

(e) Adamali Talukdar , (1926) 31 C. W. N. 314.

SEC. 304-A ] OFFENCES AFFECTING THE HUMAN BODY 560

Legislative changes : — This section was inserted by the Indian Penal Code
Amendment Act, 1870 (XXVII of 1878), s. 12.

Chaps. IV, V and XXII of the tode apply to offences punishable under
s. 304-A. See the Indian Penal Code Amendment Act, 1870 (XXVII of 1870).

Analogous law: — This offence has no coi responding provision in English
law. Rash and negligent acts are punishable under Ss. 337 and 338, but until
1870 there was no section providing punishment for rash and negligent acts causing
death. In England such acts would be punishable as manslaughter.

Russel says : “The felony of manslaughter consists of the killing of man by
man without malice aforethought (Fost. 290 ; 1 Hale, 466), but without legal justi-
fication or excused <\e., under circumstances rendering the killing unlawful or legally
culpable. The death must ensue within a year and a day of the culpable act or
issue assigned as to its cause ” (f).

This section deals with deaths by negligence.

These offences are taken out of s. 511, which does not apply to Ss. 304-A
and 305 as s. 51 1 applies (1) where there is no express provision in the Code and
(2) s. 511 applies to offences punishable with transportation for life and not with
death.

So the Authors of the Code observe : “ These clauses appear to us absolutely
necessary to the completeness of the Code. We have provided, under the head
of bodily hurt, for cases in which hurt is inflicted in an attempt to murder ; under
the head of assault, for assaults committed in attempting to murder ; under the head
of criminal trespass, for some ciiminal trespasses committed in order to murder.
But theie will still remain many atrocious and deliberate attempts to murder
which are not trespasses, which are not assaults, and which cause no hurt. A % for
example, digs a pit in his garden, and conceals the mouth of it, intending that Z
may fall in and perish there. Here A has committed no trespass, for the ground is
his own ; and no assault, for he has applied no force to Z. He may not have
caused bodily hurt, for Z may have received a timely caution or may not have gone
near the pit. But A s crime is evidently one which ought to be punished as severely
as if he had laid hands on Z with the intention of cutting his throat ” (g).

‘ Manslaughter * is distinguishable from murder in that malice aforethought
which is the very essence of murder is absent in ‘ manslaughter * (h). ' Manslaugh-
ter ’ by negligence occurs when a person is doing anything dangerous in itself or
has charge of anything dangerous in itself, and conducts himself in regard to it in
such a careless manner as to be guilty of culpable negligence (i).

It is well to bear in mind that the English law of ' manslaughter * is not applica-
ble in India.

Scope : — “ S. 304-A is directed at offences outside the range of Ss. 299 and 300
and obviously contemplates those cases into which neither intention nor knowledge
of the kind already mentioned enters. For the rash or negligent act which is de-
clared to be a crime is one ‘ not amounting to culpable homicide ’ and it must
therefore be taken that intentionally or knowingly inflicted violence directly and wil-
fully caused is excluded. S. 304-A does not say every unjustifiable or inexcusable
act of killing not hereinbefore mentioned shall be punishable under the provisions
of this section, but it specifically and in terms limits itself to those rash or negligent
acts which cause death but fall short of culpable homicide of either description.

(f) Russel, 8th Ed. Vol. I, 740.

(g) Note M. *

(h) 1 East P. C. 218 ; Foster, Crown Law, 290.

(i) Doherty, (1887) 16 Cox. C. C. 306.

570

THE INDIAN PENAL CODE

[CHAP. XVI

According to English lau) % offences of this kind would come within the category of
manslaughter , but the authors of our Penal Code appear to have thought it more con-
venient to give them a separate status in a section to themselves with a narrower range

of punishment proportioned to their culpability

...... * W * • * Although I do not

pretend for a moment to exhaust the category of cases that fall within s. 304- A. I
may remark that criminal rashness is hazarding a dangerous or wanton
act with the knowledge that it is so, and that it may cause injury, but without inten-
tion to cause injury or knowledge that it will probably be caused. The criminality
lies in running the risk of doing such an act with recklessness or indifference as to the
consequences. Criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper caie and precaution to gua^d against injury
either to the public generally or to an individual in particular, which, having regard
to the circumstances of the case, it was the imperative duty of the accused person
to have adopted" (j).

So the Authors of the Code observe : — “ Again, A sets poisoned food before
Z. Here A may have committed no trespass ; for the food may be his own ; and,
if so, he violates no right of property by mixing arsenic with it. He commits no
assault, for he means the taking of the food to be Z’s voluntary act. If Z does not
swallow enough of the poisoned food to disorder him, A causes no bodily hurt.
Yet it is plain that A has been guilty of a crime of a most atrocious description.

“Similar attempts may be made to commit voluntary culpable homicide in
any of the three mitigated forms. A , for example, is excited to violent passion by
Z, and fires a pistol intending to kill Z. If the shot proves fatal, A will be guilty of
manslaughtei ; and he surely ought not to be exempted from all punishment if the
ball only grazes the intended victim.

“ It is to meet cases of this description that clauses 308 and 309 are intended “ (k).

Where death is caused by an act being in its nature criminal, this section has
no application (1). It applies to acts which are not criminal in themselves but are
punishable by reason of death having been caused (m). This section deals with
the causing of death by a rash and negligent atf: and has nothing to do with a case
where injuries arc inflicted, not rashly, or negligently but intentionally and
designedly (n).

This section must be read along with Ss. 336, 337 and 338 of the Code (o).
Following Nidamartts case (n), the Calcutta High Couit in Morgans case (p)
held : “The original Code made no provision for the case of death being caused
by a rash or negligent act. We think s. 304-A does nothing more than supply this
omission by rendering a person or persons who accused the death of another by a
rash or negligent act (under circumstances not amounting to cuplable homicide)
liable to punishment up to two years' imprisonment or with fine or with both.'

Procedure Cognizable— Warrant — Bailabley-Not compoundable— ' Triable
by Court of Session, Presidency Magistrate o\ Magistrate of the first class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

(j) Per Straight J., in Ida Beg , (1881) 3 A. 776 (778, 779, 780). —

(k) NoteM,

(l) Damodaran , (1888) 12 M. 66.

(m) Mehv Elahi , (1911) P. W. R. No. 28 of 1911 (Cr.) : 12 Cr. L. J. 48$ : 12
I C 93.

(n) Isiilingappa Srivappa , (i912) 14 Bom. L. R. 887: 13 Cr. L. J, 799: 17
I. C. 542, following Nidamarti Nagabhushanam , (1872) 7 M. H. C. R. 119,

(o) Kure , (1918) 16 A. L. J. 615: 20 Cr, L. J. 517 (618).

(p) (1909) 1? C. W. N. 362 (366).

SEC. 304-A ] OFFENCES AFEECTING THE HUMAN BODY 67 1

That you, on or about the day of , at ,

caused the death of by doing a rash oi negligent act not amounting to

culpable homicide, namely, by ^and that you thereby committed

an offence punishable under s. 304-A of the Indian Penal Code, and within my cog-
nizance (or the cognizance of the Couit of Session or the High Couit)# ^

And I hereby direct that you be tried (by the said Court) on the said charge.

Charge to the Jury Where the Judge charged the Jury with reference to
S. 304-A in the following terms If you do not think that the act amounted to
culpable homicide, but that the circumstances of this district in respect to the pre-
valence of disease of the spleen are such as to render any beating on the trunk of the
body an act of criminal rashness, you will be justified in convicting the accused
under s. 304-A/’ it was held that this was misdirection ; the Jury should have been
told that they must be satisfied that the accused was aware of the prevalence in the
district of such diseases, and also aware of the risk to life involved in the striking
on the trunk of the body of a person who might be suffering from disease of the
spleen (q). Where an accused is tried by a jury on a charge under s. 304, he can
be convicted of an offence under s. 304-A if the facts disclose that offence alone (r).
In Mofizul Peadas case (s) it has been held that on a charge under s. 302 it is com-
petent to the Court to convict the accused under this section when evidence
justifies it.

Causing death by negligence - Where the prisoner killed his own mother
by beating and kicking hei and the Sessions Judge acquitted him of culpable homi-
cide, because the violence was not such as the prisoner must have known to be
likely to cause death, Holloway, J., held that this was no ground for acquitting the
accused of culpable homicide not amounting to murdei ; the question for the Judge
was whethei the act was done with the intention o* causing bodily injury which was
likely to cause death. The learned Judge distinguished between * culpable rashness
and 4 culpable negligence * as follows : 44 Culpable rashness is acting with the con-
sciousness that the mischievous and illegal consequence may follow; but with the
hope that they will not, and often with the belief that the actor has taken sufficient
precautions to prevent their happening. The imputability arises from acting
despite the consciousness ( luxuria ). Culpable negligence is acting without the
consciousness that the illegal and mischievous effect will follow, but in circum-
stances which show that the actor has not exercised the caution incumbent upon
him, and that if he had he would have had the consciousness ” (t). Mukerji, J. #
followed Nidamarti's case (t) and Idu Bess case (u) in Smith's case (v) and held
that the question whethei the accused’s conduct amounted to culpable rashness or
negligence depends directly on the question as to what is the amount of care and
circumstances which a prudent and reasonable man would consider to be sufficient
upon all the circumstance of the case. The facts of Sm iff h's case (v) are that two
coolies were so sleeping on the road with their bodies covered except for their
faces and weie run over by a motor car and killed. The road was closed to traffic
for repairs and it was held that a person diiying at night a motor cai on such
road was not expected to take precautions against the chance of coolies sleeping on
the road (v).

(r) Walker , (1924) 26 Bom. L. R. 610, following Ramava Channappa, (1926)
17 Bom. L. R. 217.

(s) (1925) 29 C. W. 4 N. 842.

(t) Per Holloway J., in Nidatnarti Nagabhusanam, (1872) 7 M. H. C. R. 119
(119, 120) — leading case.

(u) Idu Beg, (1881) 3 A. 776, following O'Brien, (1880) 2 A. 766 and Nidatnarti
Nagabhusanam , (1872) 7 M. H. C. R. 119.

(v) (1925) 53 C. 333 : 30 C. W. N. 66 (70, 71) : A. I. R. (1926) Cal. 300*

572

THE INDIAN PENAL CODE

[CHAP. XVI

The accused, a motor car driver, was driving the bus between 1 2 and I p.m.
along a bazar road from the hospital and at that time a train car coming to the place
from the opposite direction was standing near a road junction. At this point, the
left portion of the road was dug up for repairs, yet there was an open track 1 1 \ feet
wide on the right 9tde of the stationary tram car ; and on its left side the width
of the roadway was 33 feet. The traffic was not heavy and when he came up to the
stationary tram car and instead of proceeding straight as it was his duty to do,
he crossed the tiam car on its left ; he omitted then to sound his horn. Just then a
boy, fourteen years of age, descended from the rear of the tram car and proceeded
two or three paces towards the foot-path on the left. The accused’s bus came
upon the boy, and though he swerved his bus to avoid the boy, he failed. The boy
was run over, his skull was fractured, and he succumbed to his injury immediately
afterwards. The accused was tried under this section and was sentenced to suffer
rigorous imprisonment for two months and to pay a fine of Rs. 201. Fawcett, J.,
observed that special caution must be taken by all motor vehicles, while passing a
stationary tram car and although he did not agree with the Magistrate that the fact
of deviation was in itself a rash act, he upheld the conviction on appeal (w).

Where a Kaviraj operated on a man for internal piles by cutting them out with
an ordinary knife and the man died from haemorrhage, the Calcutta High Court
held that the Kaviraj was rightly convicted under this section (x). Where a person
struck his wife a blow on the left side with great force which caused her death,
without any intention of causing death, or of causing such bodi y injury as was likely
to cause death, or the knowledge that he was likely by such act to cause death, but
with the intention of causing grievous hurt, it was held that the offence of which
such person was guilty was one under s. 325 and his conviction under this section
was quashed (x 1 ).

Where the accused, who was carrying on intrigue with her neighbour, was
tried for charges under Ss. 203, 302 and 304-A for causing the death of her husband
and of her mother-in-law by administering aconite in their food, the Calcutta High
Court held : “ If a man intentionally commits any offence and consequences beyond
his immediate purposes result, the resut is not to be attributed to meie rashness ;
if knowledge could not be imputed, still the wilful offence does not take the charac-
ter of rashness because its consequence have been unfortunate ; but acts probably
or possibly involving danger to others, which in themselves are not offences, may
be offences within s. 304-A and kindred sections if done without due care to guard
against dangerous consequences " (y).

Where arsenic oxide was deliberately administered to a man as a love potion
by hi? wife with the connivance of her mother, it was held that the wife was guilty
under this section and the mother was held guilty of abetment under s. 109 (z).

Rash and negligent driving : — Crucial test : — A driver cannot absolve him-
self from the consequences of rash driving by merely showing that the person to
whom or to whose property he has caused injury was himself negligent (a).

Negligence by Railway Servants s— 1 Where A f a servant of a railway
company, charged with moving some trucks by coolies on a steep incline, dis-

(w) B hag wan Das Bakshi t (1928) 30 Bom. L. R. 055.

(x) Sakoroo Kabiraj , (1887) 14 C. 506 ; lietabdi Mondal, (1879) 4 C. 764.

(xl) Jdu Beg (1821) 3 A. 776.

(y) Pika Bewa, (1912) 39 C. 855 : 16 C. W. N. 1055 : 15 C. L. J. 5U : 13

Cr. L. J. 195 : 14 I. C. 195, following Nidamapti Nagabhushanam , (1872) 7 M. H. C. R.
119 and Ketabdi Mundal, (1879) 4 C. 704.

(z) Ratnava Chtttnappa, (1915) 17 Bom. L. R. 217 : 16 Cr. L. J. 305 : 28 I. C.
641 ; Jantna , (1909) 31 A. 29.

(a) Deota Misir, (1931) 29 A. L. J. 770, following Swadling v. Cooper , 40 Timet
Law Rep. 597 ; see* Smith, (1925) 53 C. 333.

SEC. 304-A ] OFFENCES AFFECTING THE HUMAN BODY 573

charged his duty negligently, and in consequence the trucks got out of control, and
in their course one of the coolies, who, under orders of the accused was endeavouring
to stop them, slipped under the wheels, and wls run over and killed, held that the
accused had caused the death of the deceased by his negligent act within the
meaning of this section (b). Wheie an Assistant Station Mastef at a station gave the
* line clear ’ which permitted the passenger train to leave the next station on the
line and the night was a foggy one, and the collision which followed was attended
with loss of life, it was held that the conduct of the accused was rash and negligent
which brought his act within the purview of this section (c). B, an Assistant
Station Master, at a station G in anticipation of receiving a telegram from the next
station showing * line clear certificate ’ had written out in the prescribed form-*
book a conditional line clear message to the effect that on the arrival, at G of a
down train then due from a station 5, the line would be cleat for a certain up train
at G to stait for S. The guard of the latter train thereafter without the knowledge
of B and also against the rules, entered the Station-master’s room in his absence,
tore the impel feet certificate from out of the book and without reading.it, passed it
on to the driver and gave the signal for the train to start without taking the per-
mission of the Station Master as required by the rules. The driver also without
examining the certificate started the train and a collision took place in which several
persons including the driver were killed. B and the guard were both convicted
under this section and s . 101 of the Railways Act. Held that B was not liable (d).

Negligent plying of boat : — Where the lessee of a Government Ferry having
the exclusive light of conveying passengers acioss a certain river at a particular
spot allowed an unsound boat to be used at the ferry and in consequence of its
unsoundness the boat sank while crossing the river and some of the persons in it
were drowned, held that the lessee of the ferry was properly convicted under this
section (e).

Rashness or negligence in intercourse s— Where the prisoner, a fully
developed man had sexual intercourse with his wife, a girl of 1 1 years and 3 months,
who had not attained puberty, and the death was caused by haemorrhage from a
rupture of the vagina caused by the prisoner having sexual intercourse with the
girl, the Calcutta High Court helc| that the accused was guilty under s. 338 but
acquitted the prisoner of the charge under this section as the defence established
that the accused had sexual intercourse with the girl on several pievious occa-
sions (f). Wheie accused had sexual intercourse with his child wife about the age of
12 years but who had not attained puberty, and thereby caused her death, it was
held that the accused was guilty of an offence of causing death by rash and negli-,
gent act punishable under this section (g). Where a youth of 18 without any
ancillary violence had sexual intercourse with a well-developed girl probably under
12 years of age without her consent and hei vagina was ruptured and as a result
she died of a shock, the Patna High Court held that as death was not the natural
consequence to be expected from a simple sexual intercourse, the accused was
not guilty under s. 304 (h).

Negligent omission -The accused 5, a girl of seventeen years of age, who
was already sorely tried by her husband’s ill-treatment and the illness of her infant,
jumped into a well in order to drown herself. At the time she jumped in, her iniant

(b) Nandkishore , (1884) 6 A. 248.

(c) Tapti Prasad, (1917) 15 A. L. J. 590 : 18 Cr. L. J. 815 : 41 I. C. 335.

(d) Shanker Balkrishna , (1904) 32 C. 73 : 8 C. W. N. 645.

(e) Bhutan , (1894) 16 A. 472.

(f) Hureetnohan My the , (1891) 18 C. 49 (S. 375 was once amended because of
this decision).

(g) Shahu, 11 S. L. R. 76 : 18 Cr. L. J. 1003 : 42 I. C. 731,

(h) ShambhuKhetri, (1924) 3 P. 410,

574

tHE INDIAN PENAL CODE

[CHAP. XVI

was tied on her back. She was* found in the well the next day but the infant was
drowned^ The trial Judge convicted the accused of an attempt to commit suicide
and aho%f murder of her infant child under Ss. 309 and 302. The Bombay High
Court held that the offence which accused committed was not murder, but causing
death by a negligent omission, i.c., the omission to put the child down before jump-
ing into the well (i).

Negligence in Medicine and Surgery An unqualified person who was
in charge ot a dispensary attached to a mill at Agra had to make up a quantity of
quinine mixture for cases of fever. He went to the cup-board in which non-
poisonous medicines were usually kept, and took from it a bottle still inside its
original wrapper as it came from the manufacturer. On the outside of that
wrapper was printed the word * poison * : apparently he did not look at that. The
bottle itself was labelled (i) * * 4 Strychnine hydrochloride * and the bottle was similar
in shape and colour to that in which quinine hydrochloride was supplied, he made
up the entire contents of the bottle as if it had been quinine. The result was that
seven patients died. It was held that the compounder was rightly convicted under
this section (j). Where a man of full age (f.e., about 18 years) submits himself to
emasculation, performed neither by a skilful hand, nor in the least dangerous way,
and dies from the injury, the persons concerned in the act are guilty of culpable
homicide not amounting to murder (k).

English cases Hale says : " If a physician gives a person a potion with-
out any intent of doing him any bodily hurt, but with an intent to cure or prevent
a disease, and contrary to the expectation of the physician it kills him, this is no
homicide and the like of a Chinigeon (Surgeon) I ” (1). If a person bona fide and
honestly exercising his best skill to cuie a patient, perform an operation which
causes the patient’s death, he is not guilty of manslaughter, and it makes no differ-
ence whether such person be a regular surgeon or not, nor whether he has had a
regular medical education or not (m), but where a person undertaking the cure
of a disease (whether he has received a medical education or not) is guilty of gross
negligence in attending his patient after he has applied a remedy or of gross rashness
in the application of it, and death ensues in consequence of either, he is liable to be
convicted of manslaughter (n).

See commentary on s. 80, supra— for cases of Accident.

305* If any person under eighteen years of age, any insane
Abetment of suicide P^son, any delirious person, any idiot, or
of child or insane per- any person in a state of intoxication commits
son- suicide, whoever abets the commission of

such suicide shall be punished with death or transportation for
life, or imprisonment for a term not exceeding ten years, and
shall also be liable to fine.

This section punishes the abetment of suicide of a child or of a minor under
eighteen years of age or of any delirious person, any idiot or any person in a state
of intoxication. The next section punishes abetment of suicide geneially.

Suicide is the only offence where the principal offender cannot be punished
and the legislators have enacted this section and the next to punish the ‘ abettors.'

(i) Supadi, (1926) 27 Bom. L. R. 604.

(j) De Souza, (1920) 42 A. 272 : 18 A. L. J. 160 : 21 Cr. L. J. 867 : 66 I. C. 736.

(k) Baboolutn Hijrah, (1866) 6 W. R. (Cr.) 7 ; Oukaroo Kabiraj, (1887) 14 C. 666,

(l) 1 Hale. P. C. 429.

(m) Van Butchelt, (1829) 3 C. and P. 629.

(n) St. John Long, (1831) 4 C. and P. 423 (440),

SEC. 300 ] OFFENCES AFFECTING THE HUMAN BODY 575

So the Law Commissioners observe: “ It seems to us where

a person legally bound to take care of the # person of another has by any illegal
omission of his duty intentionally given him the opportunity, or permitted him to
obtain the means of killing himself.

44 It would apply, we conceive, in the case of a person seeing another pie-
paring to destroy himself, say by hanging, and allowing him to accomplish his
purpose without any attempt to prevent him, if as may be expected, the lawof
procedure makes it a common duty incumbent upon all men to assist in preventing
offences about to be committed in their presence. The intention here would be
infeiable from the circumstances. In the formei case collateral pi oof of the
intention would be requisite. But we apprehend that it is active aid which is
principally intended in these clauses, and to which the higher penalties are meant
to be applied M (o).

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of—— .at , (specify the

method of abetment ) abetted the commission of suicide by X Y a

person under eighteen years of age (or an insane person or a delirious person or an
idiot or when X Y who was in a state of intoxication) committed suicide, and that
you thereby committed an offence punishable under s. 305 of the Indian Penal
Code.

And I hereby diicct that you be tried by the said Couit on the said charge.

306. If any person commits suicide, whoever abets the
A . . , . ... commission of such suicide, shall be punished

with imprisonment ot either description tor
a term which may extend to ten years, and shall also be liable to
fine.

This section punishes ‘Abetment of Suicide* and s. 309, infra , punishes
‘ Attempt to commit suicide.*

Procedure : — Cognizable — Wariant— Not bailable— Not compoundable —
Triable by Court of Session.

Charge I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows: —

That on or about the day of at ,

one XY committed suicide and that you abetted its commission by

(specify the act) and thereby committed an offence punishable under s. 306 of the
Indian Penal Code and within the cognizance of the Court of Session (or the
High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Abetment of suicide: — Wheie a Hindu ‘Uied leaving a widow, who an-
nounced her intention of committing Sati, the accused, male members of the
family, argued with her but she persisted in her intention and sent a choukidar
to the police thana eight miles away to inform the police. Before the police could
arrive, the accused carried the corpse to the burning ghat, and built the pyre under
the orders of the widow and they gave some ghi to the widow which she poured over
the pyre and over hefself. The pyre was then burnt and consumed both the

(o) First Report, S. 322, 323.

570

THE INDIAN PENAL CODE

[CHAP. XVI

corpse and the widow but theie was nothing to show who lighted the (ire. it was
held that die accused were guilty of abetting suicide (p). This case was followed
in Vidyasagar Pande's case (q) where it was pointed out that the method of igni-
tion of the file whether miraculous, whether self-applied oi whethei applied by
others was tricky and immaterial. Vidyasagar Pandes case (q) along with other
cases were commented up on in the ‘ Search-Light ' and the Editor and Printer
were punished for contempt.

307. Whoever does any act with such intention or know-
a.. * . m . ledge, and under such circumstances that.

Attempt to murder. ;f ^ ^ ^

be guilty of murder, shall be punished with imprisonment of
either description for a term which may extend to ten years, and
shall also be liable to fine ; and, if hurt is caused to any person
by such act, the offender shall be liable either to transportation
for life, or to such punishment as is hereinbefore mentioned.

When any person offending under this section is under
Attempts by ii£e-con- sentence of transportation for life, he may,
victs. if hurt is caused, be punished with death.

Illustrations.

(a) A shoots at Z with intention to kill him, under such circumstances that, if
death ensued, A would be guilty of murder. A is liable to punishment under this
section.

(b) A with the intention of causing the death of a child of tender years exposes
it in a desert place. A has committed the offence defined by this section, though
the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet com-
mitted the offence. A fires the gun at Z. He has committed the offence defined
in this section, and, if by such firing he wounejs Z, he is liable to the punishment
provided by the latter part of the first paragraph of this section.

(d) A, intending to murder Z, by poison, purchases poison and mixes the same
with food which remains in A ‘s keeping ; A has not yet committed the offence in
this section. A places the food on Z*s table or delivers it to Z’s servants to place it
on Z's table. A has committed the offence defined in this section.

Ths section deals with attempt to murder and the next deals with attempt
to commit culpable homicide. These offences are taken out of s. 51 1 which does
not apply to these sections as s. 51 1 applies (1) where there is no express provision
in the Code, and (2) to offences punishable with transportation for lire and not with
death.

So the Autho.s of the Code observe : — " These clause? appear to us absolutely
necessary to the completeness of the Code. We have provided, under the head
of bodily hurt, for cases in which hurt is inflicted in an attempt to murder ; under
the head of assault, for assaults committed in attempting to murder ; under the head
of criminal trespass, for some criminal trespasses committed in order to murder.
But there will still remain many atrocious and deliberate attempts to murder which
are not trespasses, which are not assaults, and which cause no hurt. A , for
example, digs a pit in his garden, and conceals the mouth of it, intending that Z

SEC. 307 ]

OFFENCES AFFECTING THE HUMAN BODY

577

may fall in and perish there. Here A has committed no trespass, for the ground
is his own, and no assault, for he has applied no force to Z . He may not have
caused bodily hurt, for Z may have received a timely caution or may not have gone
near the pit. But A* s crime is evidently one which ought to be punished as
severely as if he had laid hands on Z with the intention of cutting his throat.*'

“Again, A sets poisoned food before Z. Here A may have committed no
trespass, for the food may be his own ; and, if so, he violates no right of ptoperty
by mixing arsenic with it. He commits no assault, for he means the taking of the
food to be Z’s voluntary act. If Z does not swallow enough of the poisoned food
to disorder him, A causes no bodily hurt ; yet it is plain that A has been guilty
of a c:ime of a most atrocious description.

“ Similar attempts may be made to commit voluntary culpable homicide
in any of the three mitigated forms. A, for example, is excited to violent passion
by Z, and fires a pistol intending to kill Z. If the shot proves fatal, A will be guilty
of manslaughter ; and he surely ought not to be exempted from all punishment if
the ball only grazes the intended victim.

“It is to meet cases of this description that clauses 308 and 309 are
intended “ (r).

Legislative changes s — The last clause, r.e., “ When any perron offending
under this section is under sentence of transportation for life, he may, if hurt is
caused, be punished with death ’’ was added by the Indian Penal Code Amendment

Act, 1870 (XXVII of 1870), s. 11.

The words * the first paragraph of * in illustration (c) were inserted by the
Amending Act 1891, (XII of 1891), Sch. II.

The Law Commissioners observe : “ By clause 308, a person attempting to
commit murder though he fail in his purpose, if he shall have taken all the steps,
which according to his plan were necessary to accomplish it, will be punishable with
transportation for life, or imprisonment for life, or for a term not less than seven
years, and also by fine. This clause is applicable to cases in which no harm is done.
Where bodily hurt is inflicted in such an attempt, the offence will be liable to the
same punishment but under a different clause, and so in cases of assault and
trespass” (s).

Stephen says: “An attempt to commit a crime is an act done with intent
to commit that crime, and forming part of a series of acts which would constitute
its actual commission if it were not interrupted ’* (t).

Moigan and Macpherson observe: “The intention or knowledge which
is necessary to constitute muider may exist, combined with an act which falls short
of the complete commission of that offence. The murderer may do an act to-
wards the commission of the murder, but may involuntarily fail or be intercepted or
prevented from consummating the crime. This and the following section seem to
apply (as the illustrations show) to attempts to murder, in which there has been not
merely a commencement of an execution of the purpose, but something little short
of a complete execution, the consummation being hindered by circumstances inde-
pendent of the will of the author “ (u).

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Where two persons were placed on trial before a Magistrate of the second class
for offences under Ss. 307 and 323, and one of these persons was discharged,

(r) Note M.

(s) First Report, s. *339.

(t) Stephen’s Digest, Cr. L., Art. 49.

(a) Morgan and Macpherson, 1 Penal Code # p. 274.

43

578

THE INDIAN PENAL CODE

[CHAP. XVI

but as regards the other, the Magistrate framed a charge against him under s. 323,
omitted to say anything about s. 307, held that the effect of the Magistrate s order
was equivalent to a discharge under this section (v).

Charge s— Where two persons were charged under Ss. 307/34 and 326/34
of the Code for offences committed in pursuance of an intention common to them
and to the petitioner and also under Ss. 307/1 14 and 326/1 14 of the Code for abet-
ment by conspiracy between themselves, the petitioner, two other named and other
unknown accused were acquitted by the Jury, held that the acquittal on the con-
spiracy charges did not conclude the proceedings against the petitioner and directed
a retrial of the petitioner (w), but the Bombay High Court bar held that in the
absence of circumstances showing that the accused were in fact misled in their
defence by reason of an omission of a charge under s. 34 when the charges were
under Ss. 300, 148 and 149 of the Code, they could be convicted of offences under
this section read with s. 34 or s. 114, the common presence and the common object
being sufficiently charged (x).

Form of charge : — 1 ( name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at ,

(being under a sentence of transportation for life)) did an act to wit — ,

with such intention (or knowledge) and under such circumstances that if by that
act you had caused the death of XY you would have been guilty of murder (and
that you by such act caused hurt to the said 2 ) and thereby com-

mitted an offence punishable under s. 307 of the Indian Penal Code, and within
the cognizance of the Couit of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Sentence: — In awarding punishment under this section the fact that the
accused had contracted the morphia habit and was a very fickle-minded person,
may be taken into consideration, although there is no indication of a plainly marked
mental aberration (y).

Analogous law : — The corresponding English law is 24 and 25 Viet., c. 100,
s. 18 of which runs as follows »

S. 18. "Whosoever shall unlawfully and maliciously by any means whatsoever
wound or cause any grievous bodily harm to any person, or shoot any person at or,
by drawing a trigger or in any other manner attempt to discharge any kind of
loaded arms at any person, with intent, in any of the cases aforesaid, to maim,
disfigure, or disable any person, or to do some other grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension or detainer of
any person, shall be guilty of felony, and being convicted thereof shall be liable,
at the discretion of the Court, to be kept in penal servitude for life or for any
term not less than three years — or to be imprisoned for any term not exceeding two
years, with or without hard labour, and with or without solitary confinement."

Thus it will be seen that the language of the English statute is different ,
so it would not be proper to apply the English law.

Russel says : “ Attempts to murdei are at common law misdemeanours only.
Such attempts, with maiming, and doing or attempting great bodily harm were

(v) Sheonarain Singh, (1919) 42 A. 128.

(w) Manindra Chandra Ghose, (1914) 41 C. 754; 18 C. W. N. 580 following
Rantesh Chandra Banerjee, (1913) 41 C. 350.

(x) Ranchod Sursang, (1924) 49 B. 84 ; 20 Bom. L. R. 954 : A. I. R. (1924) Bom.

502.

1 . For charge under Part J .

2. For charge under Part II.

(y) Alexander Ruffe , ^1911) P. JR. No. 1912 (Cr.) : P. W. R. No. 24 of 1912 Cr.)
13 0. L. J. 197 : 14 I. C. 197.

SEC. 307 ]

OFFENCES AFFECTING THE HUMAN BODY

579

severely punishable under a series of enatments now repealed —

These statutes were repealed in 1827 (7 and 8 Geo. IV, c. 27), 1828 (9 Geo. IV,
c. 31) and 1854 (17 and 18 Viet., c. 120). The substituted provisions contained
in those acts were repealed in 1861 (24 and 25 Viet., c. 95) which is the existing
statute law punishing attempts to murder ’’ (z).

/?, drew a loaded pistol from his pocket for the purpose of murdering 5, but
before he had time to do anything further in pursuance of his purpose the
pistol was snatched out of his hand, and he was at once arrested. It was held that
the offence was within s. 14 of 24 and 25 Viet., c. 100 (a). A single completed act,
which is only one of a series of acts, if done with intent to murder, is an attempt
to murder, although standing alone, it would not have resulted in death (b).

Hawkins says : S. 4. “ Not only he who by a wound or blow or by poisoning,
strangling, or famishing, etc., directly causes another’s death; but also in many
cases, he who by wilfully and deliberately doing a thing which apparently endangers
another's life, thereby occasioning his death, shall be adjudged to kilFhim.

S. 5. — “ And such was the case of him who carried his sick father against his
will, in a cold frosty season, from one town to another, by reason whereof he
died” (c).

Hale observes : “ There are several ways of killing : (1 ) By exposing a sick or
weak person or infant unto the cold to the intent to destroy him, 2 Ed. 3, c. 18, s, 6,
whereof he died. (2) By laying an impotent person abroad, so that he may be ex-
posed to and receive mortal harm, as laying an infant in an orchard, and covering
it with leaves, whereby a kite strikes it, and kills it. (3) By imprisoning a man so
strictly that he dies and therefore where any one dies in gaol, the Coroner ought
to be rent for to enquire into the manner of his death. (4) By starving or famine.
(5) By wounding or blows. (6) By poisoning. (7) By laying noisome and poisonous
filth at a man’s door, to the intent by a poisonous air to poison him ” (d).

In a case where the prisoner if alleged to have murdered an aged and infirm
woman by confining her against her will and not providing her with food, drink
and clothing, etc., if the Jury think that the prisoner was guilty of wilful neglect, so
gross and wilful that they are satined that the prisoner must have contemplated
her death, he will be guilty of murder, but if they only think that he was so careless
that her death was occasioned by negligence, though he did not contemplate it, he
will be guilty of manslaughter (e). A parent who wilfully withholds necessary food
from his child, with the wilful determination by such withholding to cause the
death of the child, is guilty of murder if the child dies. If however a parent who
has the means to supply necessaries, the want of which had led to the death of the
deceased, and having the means to supply such necessaries, negligently, though
not wilfully, withheld food which, if administered, would have sustained life, and
so caused the death of the deceased then that would amount to the crime of man-
slaughter in the person so withholding the food (f). On the trial of an indictment
under 24 and 25 Viet., c. 100, s. 18 which enacts that 4 whosoever shall unlawfully
and maliciously bv drawing a trigger or in any other manner * attempt to dis-
charge any kind of loaded arms at any person with intent to do grievous bodily
harm, shall be guilty of felony, it was proved that the prisoner drew from his pocket
a loaded revolver and pointed it towards his mother, his wrists were seized -by by

(z) Russel. 8th Ed. Vol. 1, p. 796, 797.

(a) Brown, (1883) 10 Q. B. D. 381 where St. George , (1840) 9 C. and P. 483 and
Lewiss; (1840) 9 C. and P. 523 were doubted.

(b) White, (1910) 22 Cox. C. C. 325.

(c) 1 Hawk P. C. f 13, Sees. 4 and 5.

(d) 1 Hale P. C. 4&I, 432.

(e) Simon Mar/ito , (1828) 8 C. and P. 425.

(f) Mary Cornier, (1867) 10 Cox. C. C. 547,

580

[CHAP. XVI

„ THE INDIAN PENAL CODE

standers as he was raising the pistol, and after a struggle it was taken from him and
during the struggle his finger and thumb were seen fumbling about the revolver
which cocked automatically when the trigger was pulled, Lord Coleridge, C.J.,
held that there was abundant evidence that the prisoner attempted 4 by drawing
the trigger or in any other manner * as the English statute (24 and 25 Viet., c.100,
s. 18) go and fuither held that the Jury were properly given the usual direction that
a man must be presumed to intend the natuial consequences of his acts (g). An
important consideration under this section is intention or knowledge (h).

Scope: — The Bombay High Court in an earlier decision held that in order
to constitute the offence of attempt to murder under this section, the act committed
by the prisoner must be an act capable of causing death in the natural and ordinary
course of events (i).

Straight, J., held : “ As 1 have pointed out, by s. 307, 1. P. C., there is express
pro/ision%iade in the Code itself for the punishment of an attempt to murder.
It seems therefore to me that when the framers of s. 51 1 drew it up in the terms
that they have drawn it up, they especially meant to exclude those attempts to
commit offences which in the various preceding sections of the Code were speci-
fically and deliberately provided for with punishments enacted in the sections them-
selves. I have therefore for these reasons come to the conclusion that s. 307 is
exhaustive and that no Court has any right to resort to the provisions of Ss. 299 and
300 read with s. 511 for the purposes of convicting a person of the offence of
attempted murder, which according to the view of the Court, does not come
within the provision of s. 307 ** (j). Mr. Justice Straight, in Niddha' s case (j)
considered Cassidy's case (i) and differed from the view taken by the Bombay
High Court. Beaumont, C. J., in Vasudev Gogatas case (k) accepted the reasoning
of Straight, J. in Niddhas case (j) although he held that it was not necessary to
differ from the /iew enunciated in Cassidy's case (i) which to quote the language of
Beaumont, C. J., 44 is binding on us/* It may be pointed out that Beaumont, C. J.,
could have referred the matter to the Full Bench but his Lordship distinguished
Cassidy's case (i) as the facts were different.

Attempt to murder : — In order to ^support a conviction under this
section, it is necessary to prove that the accused did the act with such intention
or knowledge that if he had caused death by that act he would have been guilty
of murder (1).

The act, which is punishable under this section, must be an act which is itself
capable of causing death (m). Where the accused, a young man of 25 and accustomed
to shooting, was tound to have fifed at a person at a distance only of some six paces,
the cartridge shot of about No. 6 size, the Calcutta High Court held that the accused
must have known that to fire at the body of a man at such close range was vety likely
to cause his death and convicted the accused under this section (n). Where the
accused on 7th June 1909 administered poison to A and B both of whom died from
the effects thereof, and on the following day administered the same poison to C and

(g) Duckworth, (1892) 2 Q. B. 83 (8ft, 87) overruling St, George, (1840) 9 C. and
P. 483.

(h) Mutalli, A. I. R. (1930) Uh. 253.

(!) Francis Cassidy, (1807) 4 Bom. H. <\ (Cr. C.) 17 followed in Martu Vithobu
Prabhu, (1913) 15 Bom. L. It. 991 : 14 Cr. L. J. 641 : 21 I. C. 881, but doubted
in Vasudev Gogata, (1932) oft B. 434 : 34 Bom. L. R. ,571.

(j) Niddha, (1891) 14 A. 38 (41).

(k) (1932) 5ft B. 434 ; 34 Bom. L. R. 571.

(l) Pir Mahammed, (1923) 25 Cr. L. J. 308: 76 I. C. 1028: A. I. R. (1923)
L. 415.

* (m) Nga Waih, (1923) I. R. 209 : 2 Bur. L. J. 76 : 24 Cr. L. J. 850 : 74 I. C.
1042 : A. I. R. (1923) R. 251.

(n) Abdu^Rahaman, (1908) 9 C. L. J. 432 following Niddha, (1891) 14 A. 38.

SEC. 308 ] OFFENCES AFFECTING THE HUMAN BODY 581

D, the former got ill and recovered but the latter died, the Punjab Chief Court
held that the accused was guilty of the offence of murdering D, and was also guilty
under this section as regards the poison administered to C (o). A culprit, who
inflicts 10 incised wounds on the body of a person, most of which are aimed at his
head, must be credited with murderous intent ; the Punjab Chief Court held that
the culprit was rightly convicted under this section (p).

Where the accused struck his wife on her neck with an axe and the result of the
blow in fact was an incised wound, held , it amounted in law to simple hurt only
and not of attempt to murder under this section (q).

A person intentionally discharging a loaded gun at another from a short
distance, inflicting injuries which might have proved fatal is guilty of an offence
under this section and not merely of causing grievous hurt (r).

Where the accused struck three blows on the head with a stick with* the inten-
tion of killing him, and the medical evidence showed that the blows struck by the
accused were not likely to cause death, held that the accused was guilty under this
section (s). Where a woman of twenty years of age was found to have adminis-
tered dhatura to three members of her family, held that she must be presumed to
have known that the administration of dhatura was likely to cause death, although
she might not have administered it with that intention and in that view upheld the
conviction of the accused under this section (t).

308. Whoever does any act with such intention or know-
Attempt to commit ledge and under such circumstances that,
culpable homicide. jf h e t ] iat act causec | death, he would be

guilty of culpable homicide not amounting to murder, shall be
punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both : and, if hurt
is caused to any person any such act, shall be punished with
imprisonment of either description for a term which may extend
to seven years, or with fine, or with both.

Illustration .

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances
that if he thereby caused death he would be guilty oi culpable homicide not amounting
to murder. A has committed the offence defined in this section.

This section is the same as the preceding section with this difference that it
relates to an attempt to commit culpable homicide not amounting to murder.

Attempt to commit culpable homicide According to Sir James Stephen,
* an attempt to commit a crime is an act done with intent to commit that crime
and forming part of a series of acts which would constitute its actual commission
if it were not interrupted ” (u).

Procedure : — Cognizable-- Warrant-Bailable— Not compoundable— -Triable
by Court of Session.

(o) Lala, (1910) P. L. R. No. 32 of 1911 : 12 Cr. L. J. 125 : 9 I. C. 731.

(p) Gyan Sing , (1915) P. L. R. No. 132 of 1915: P. W. R. 13 of 1915: 16

Cr. L. J. 462 : 29 I. C. 94. *

(q) Martu Vithoba, (1913) 15 Bom. L. R. 991 : 14 Cr. L. J. 641 : 21 I. C. 881.

8 Public Prosecutor v. Kolangarct, (1915) 16 Cr. L. J. 542 : 29 I. C. 670 (Mad).

Khandu Bhavctni , (1890) 15 B. 194.

(t) Tulsha, (1897) 20 A. 143.

(u) Stephen's Digest of Criminal Law, Art. 50.

582 THE INDIAN PENAL CODE [ CHAP. XVI

Charge:- I (name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows: —

That you, on or about the day of- , at ,

did an act, to wit , with such intention (or knowledge) and under

such circumstances, that if by that act you had caused the death of XY, you would
have been guilty of culpable homicide not amounting to murder (and for charge
under Part II of the section, and that you caused hurt to the said XY by the said
act), and thereby committed an offence punishable under s. 308 of the Indian Penal
Code, and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

309. Whoever attempts to commit suicide and does any
act towards the commission of such offence,
sJdde^V to commit shall be punished with simple imprisonment
for a term which may extend to one year,
[or with fine, or with both].

Legislative changes : — The words * or with fine, or with both ’ were sub-
stituted for the words ‘ and shall also be liable to fine * by the Indian Penal Code
Amendment Act VIII of 1882 , s. 7.

This amendment has the effect of overruling the Bombay case in which the
sentence of imprisonment was held to be compulsory (v).

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

attempted to commit suicide and did an act towards the commission of such offence,

namely , and thereby committed an offence punishable under s. 309

of the Indian Penal Code and within my cognizance.

r

And I hereby direct that you be tried on the said charge.

Attempt to commit suicide : — This section punishes an attempt to commit
suicide, in other words any act done towards the commission of the offence of suicide
but not mere preparation . Thus where a woman intending to commit suicide
prepared to carry out that intention and proceeded to a well after quarrelling with
her father saying that she would fall into it when she was arrested by a person,
she was convicted by the Magistrate under this section ; the High Court of Madras
in setting aside the conviction held that she might have still changed her mind and
she was caught before she did anything which might be regarded as the commence-
ment of the offence of which she was convicted (w). So the pounding of oleander
roots with an intention to poison oneself with the same was held not to constitute
an attempt to commit suicide (x).

Where the accused jumped into a well to avoid an escape from the police,
he came out of the well of his own accord and was convicted of this offence, the
High Court of Bombay set aside the conviction as there was no evidence to indicate
that he had intention to commit suicide fy). Where a woman, who was in advanced
stage of pregnancy threw herself into a well being driven mad by prolonged labour

(v) Chanivora , (1863) 1 Bom. H. C. R. 4.

(w) Ramahka , (1884) 8 M. 6.

(x) Tayee, (1883) Rat. Unrep. Cr. C. 188.

(y) DwarkaPunja , (1912) 14 Bom. L. R. 140 : 14 I. C. 698.

SECS. 310-12] OFFENCES AFFECTING THE HUMAN BODY 583

and in consequence of that, the child born was dead, the Allahabad High Court
held that she' could not be guilty of attempting to voluntary causing miscarriage but
of attempting to commit suicide (z).

310. Whoever, at any time after the passing of this Act,

Thu shall have been habitually associated with

>ug ' any other or others for the purpose of com-

mitting robbery or child-stealing by means of or accompanied with
murder, is a thug.

This section incorporates the provisions of the Thugee Act (XXX of
1836). This section defines a thug. In order to be a 'thug,' a person must habit-
ually associate with any other or other persons for the purpose of committing
robbery or child-stealing by means of or accompanied with murder.

311. Whoever is a thug, shall be punished with transporta~

Punishment. tion for life, and shall also be liable to fine.

This section punishes a thug.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you {name
of accused ) as follows : —

That you, on or about the day of , at ,

were a thug, and that you thereby committed an offence punishable under s. 311
of the Indian Penal Code, and within the cognizance of the Court of Session (or
the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Punishment See the Criminal Tribes Act, 1897, s. 6 which applies to
offences under this section.

Of the Causing of Miscarriage, of Injuries to Unborn Children,

of the Exposure of Infants, and of the Concealment of Births.

312. Whoever voluntarily causes a woman with child to
r.„. miscarry, shall if such miscarriage be not

Causing miscarriage. j r lr’.ir .1 r

caused in good raith tor the purpose ot saving
the life of the woman, be punished with imprisonment of either
description for a term which may extend to three years, or with
fine, or with both ; and, if the woman be quick with child, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

Explanation . — A woman who causes herself to miscarry,
is within the meaning of this section.

Voluntarily — a. 39. Good faith — s. 52.

This section punishes causing the miscarriage of a woman with her consent
whereas the next section deals with causing miscarriage without the consent of
the woman. So the Authors of the Code observe : “ With respect to the law on

(s) Musammat Mulia, (1919) 17 A. L. J. 479.

584

THE INDIAN PENAL CODE

[ CHAP. XVI

the subject of abortion, we think it necessary to say only that we entertain strong
apprehensions that this or any other law on that subject may, in this country, be
abused to the vilest purposes. The charge of abortion is one which even where
it is not substantiated, often leaves a stain on the honour of families. The power
of bringing a false accusation of this description is, therefore, a formidable engine
in the hands of unprincipled men. This part of the law will, unless great care be
taken, produce few convictions, but much misery and terror to respectable families,
and a large harvest of the profit to the vilest pests of society. We trust that it may
be in our power in the Code of Procedure to lay down the mles which may prevent
such an abuse. Should we not be able to do so, we are inclined to think that it
would be our duty to advise his Lordship in Council rather to suffer abortion, where
the mother is a party to the offence, to remain wholly unpunished than to repress
it by the provisions which would occasion more suffering to the innocent than to the
guilty'* (a).

Procedure : — Non-cognizable — Wai rant — Bailable Not compoundable- -

Triable by Court of Session.

Charge: — 1 ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

voluntarily caused one XY (name of the woman miscarrying) then quick with child
to miscarry, such miscarriage not being caused by you in good faith for the purpose
of saving the life of the said XY, and thereby committed an offence punishable
under section 312 of the Indian Penal Code, and within the cognizance of the Court
of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Measure of punishment : — The Law Commissioneis in their report ob-
serve : “ Mr. J. F. Thomas says of clause 312 ‘This clause appears to me to
confound offences distinct in themselves, and which should not be visited by a like
measure of punishment. The high caste young widow, who, to hide her shame,
would at the risk of life cause herself to miscarry, does not, under the peculiar cir-
cumstances in which she is placed, by the institutions of society, commit an offence
in any respect of like criminality with the seducer of a young girl, oi a married
woman, who to cover her crime should cause such woman to miscarry. The
offences are so distinct that I think separate and special provisions should be made
for them.

“ In the one instance a penalty of not less than two years would only meet
the case : in the other a trifling punishment in addition to the degradation of a
criminal trial will be ample. I much doubt the policy of providing heavy penalties
for the repression of the offence of causing miscarriage by the woman herself,
whilst the barbarous institution of the country create the offence ” (b).

'voluntarily causes a woman with child to miscarry * The woids
' with child ’ mean pregnant, and it is not necessary to show that ' quickening '
i.e., perception by the mother of the movements of the foetus has taken place or that
the embryo has assumed a fcetal form. The term ' miscarriage ’ is not defined
in the Indian Penal Code. In its popular sense it is synonymous with abortion
and consists in the expulsion of the embryo or foetus — the stage to which pregnancy
has advanced and the form which the ovum or embryo may have assumed are
immaterial. Where a woman was acquitted on a charge of causing herself to mis-
carry, on the ground that she had only been pregnant for one month and that there

fa) Note M.

(b) 1st 'Report, s. 349.

sec. 313 ]

OFFENCES AFFECTING THE HUMAN BODY

585

was nothing which would be called even a rudimentary foetus or child, it was held
that^ the acquittal was bad in law and the High Court of Madras directed a
retrial (c).

This offence can only be committed where the woman is 4 with child * or
* quick with child.* If she was not with child at all, the accused must be
acquitted (d). The offence defined by this section can only be committed when a
woman is in fact pregnant (e)

In a case in which the child was full-grown, the Calcutta High Court declined
to convict the accused of causing miscarriage under this section supposing
an expulsion of the child before the period of gestation is completed, but convicted
them of an attempt to cause miscarriage under Ss. 312 and 311 read together (f).

The offence created by this section is actually causing a woman to miscarry.
If she is pregnant, and the means used do not succeed, the accused could only be
convicted under s. 311 of an attempt.

In England, it has been held that a woman, who believing herself to be with
child but not being with child, conspires with other persons to administer drugs
to herself or to use instruments on herself with intent to procure abortion, is
liable to be convicted of conspiracy to procure abortion (g).

4 quick with child 9 : — According to Mr. Taylor, “ Quickening is the name
applied to peculiar sensations experienced by a woman about this stage of preg-
nancy. The symptoms are popularly ascribed to the first perception of the move-
ments by the foetus which occur when the uterus begins to rise above the pelvis ;
and to those movements, as well as probably to a change of the position in the
uterus, the sensation is perhaps really due ” (h).

In England, under the repealed statute of Geo. Ill, c. 58, s. I, quick with
child ’ has been held to mean when the woman first felt the child move within
her (i). It has also been held to mean 4 having conceived * (j).

313. Whoever commits the offence defined in the last
Causing miscarriage preceding section without the consent of the
without woman s con- woman* whether the woman is quick with
scnt * child or not, shall be punished with trans-

portation for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to
fine.

Consent — s. 90. Quick with child — s. 312.

This section punishes causing miscarriage without the woman's consent
whether the woman is quick with child or not and ar such is an aggravated form of
the offence punishable under the last section.

Procedure Non-cognizable—Warrant— Not bailable— Not compoundable
—Triable by Court of Session.

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

(c) Ademma, (1886) 9 M. 369 (370).

(d) James Soudder, (1828) 3 C. and P. 605.

(e) Kabul Patter , (1871) 15 W. R. (Cr.) 4.

(£) Arunja Bewa, (1873) 19 W, R. (Cr.) 32.

(g) Reg. v. Whitchurch. (1890 ) 24 Q. B. D. 420.

(h) Taylor, Medical Jurisprudence, Vol. II, p. 148.

(i) Philips, (1811) 3 Camp. p. 77.

(j) Anne Wycherley. (1838) 8 C. and P. 262.

586

THE INDIAN PENAL CODE

[CHAP. XVI

That you, on or about the <toy of , at

voluntarily caused XY ( the name of the woman who miscarried) then being with
child to miscarry without her consent, such miscarriage not being caused by you
in good faith for the purpose of saving the life of the said XY and thereby committed
an offence punishable under s. 313 of the Indian Penal Code, and within the cog*
nizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

314. Whoever, with intent to cause the miscarriage of a
Death caused by act woman with child, does any act which causes

done with intent
cause miscarriage

to the death of such woman, shall be punished
with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to
fine ;

and if the act is done without the consent of the woman, shall
if act done without be punished either with transportation for
woman s consent. life, or with the punishment above mentioned.

Explanation . — It is not essential to this offence that the
offender should know that the act is likely to cause death.

Act — Ss. 32, 33. Consent — s. 90. Miscarriage — Ss. 312, 313.

This section punishes an act done with intent to cause the miscarriage of a
woman with child resulting in her death— the punishment varying in degree
according as the act was done * with consent 1 or * without consent ’ of the woman.

Morgan and Macpherson observe : “ This species of homicide may be
committed involuntarily ; that is, in the language of the Code, by a person who does
not intend to cause, or think it likely that he will not cause, death by the act which
he does. If A , intending only to cause miscarriage to Z, involuntarily does an act
which causes her death, he is liable to punishment under this section. And he is
thus liable whether he acts with caution in older to prevent risk to Z ' s life, or
whether he acts rashly or negligently. Even if he takes such precautions that there
is no reasonable probability that Z’s death will be caused, and if the medicine is
rendered deadly by some accident which no human sagacity could foresee, or by
some peculiarity in Z*s constitution, such as there was no ground whatever to
expect, A will be liable to punishment under this section for causing death by an
act done with intent to cause miscarriage.

“The consent the woman freely and intelligently gives, is allowed to mitigate
the offence. If A kills Z by administering abortives to her with the knowledge that
these abortives are likely to cause her death, he is guilty of culpable homicide which
will be culpable homicide by consent, if Z agreed to run the risk— and murder,
if Z did not so agree.

" This is an offence which can, it seems, be committed only where the woman
is actually pregnant " (k).

Procedure : — Non-cognizable — Warrant — Not bailable — Not compound*

able — Triable by Court of Session.

* With intent to cause miscarriage of a woman with child 9 r— In England

where a husband gave sulphate of potash to his wife intending to cause miscarriage
of his wife under the mistaken impression that she was pregnant and the wife also

(k) Morgan and Macpherson, 1 Penal Code, * pp. 280, 281.

SEC. 315 ] OFFENCES AFFECTING THE HUMAN BODY

587

believed herself to be pregnant and she died from taking it, it was held that he was
guilty of manslaughtei (1).

Where a poisonous drug was admin fstered to a woman to procure a mis-
carriage, and death resulted, and it was not proved that the accused knew that the
drug would be likely to cause death, the accused were acquitted by the High Court
of murder, but convicted of an offence under this section (m).

In England, a pregnant woman requested a man to procure her abortion and
threatened to destroy herself if he refused and he thereafter procuied for her a
poisonous drug, but he was unwilling that she should use it and he was not present
when it was taken. The woman died from the effects of the drug and the man was
indicted for the murder of the woman. The Court held that the conviction was
not maintainable saying that it would be consistent with the facts of the case that
he hoped and expected that she would change her mind, and would not use the
drug (n).

315. Whoever before the birth of any child does any act
* . - » ... . with the intention of thereby preventing

to prevent child being that child from being bom alive or causing
born ahve or to cause it | t die after its birth, and does by such act

prevent that child from being born alive, or
causes it to die after its birth, shall, if such act be not caused in
good faith for the purpose of saving the life of the mother, be
punished with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both.

Good faith — s. 52.

Mayne in his valuable commentary says : “Ss. 315 and 316 are intended
for the protection of unborn children. If a man, intending to pievent the birth
of a living child, does any act either through the medium of a miscarriage or other-
wise, which prevents the child from being born alive, or causes it to die after its
birth, and if such act is not done “in good faith for the purpose of saving the
life of the mother, he commits an offence under s. 315. If, however, without any
special intention to injure the child, he injures the mother in such a way that she
died, he would be guilty of culpable homicide ; then if his act causes the death of
her quick unborn child, he commits an offence under s. 316 “ (o).

Procedure : — Non-cognizable — Warrant — Not bailable — Not compoundable
—Triable by Court of Session.

Charge:— The charge must state “such act was not caused in go&d faith
for the purpose of saving the life of the mother,” as without this the act charged
would not amount to a criminal offence under the Code (p).

Form of charge:— I ( name and office of Magistrate , etc.) hereby charge
you (name of accused) as follows : —

That you, on ot about the day of , did an act, to

wit , to AB before the birth of the child, with the intention of thereby

P reventing the child from being born alive (or causing it to die after its birth) and
y that act did prevent that child from being born alive (or caused it to die after its

(1 ) William Gaylor , (1857) D. and B. 288 ; Whitchurch, (1890) 24 Q. B. P 420.
(m) Kalackand Gope , (1868) 10 W. R, (Cr.) 69.

(n) Fretwelt , (1802) 31 L. J. M. C. 146.

(o) Mayne, ' Criminal Law of India/ 3rd Ed., p. 688.

(p) 3 W. R. (Cr. letters) 6.

588

THE INDIAN PENAL CODE

[ CHAP. XVI

birth) and the said act was not done in good faith for the purpose of saving the life of
the mother, and thereby committed an offence punishable under s. 315 of the Indian
Penal Code, and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

316. Whoever does any act under such circumstances, that
Causing death of if , he thereby caused 1 death he would be guilty
quick unborn child by or culpable homicide, and does by such act
'" g to culpa " cause the death of a quick uiiborn child,
shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine.

Illustration .

A, knowing that he is likely to cause the death of a pregnant woman; does an
act which, if it caused the death of the woman, would amount to culpable homicide.
The woman is injured but does not die ; but the death of an unborn quick child with
which she is pregnant is thereby caused. A is guilty of the offence defined in this
section.

Culpable homicide — s. 299.

Procedure : — Non-cognizable — Warrant — Not bailable — Not compound-

able — Triable by Court of Session.

Charge I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at — ,

did an act to wit , under such circumstances, namely, that if you

thereby caused death, you would be guilty of culpable homicide, and did by such
act cause the death of a quick unborn child of AB , and you thereby committed an
offence punishable under s. 316 of the Indian Penal Code, and within the cognizance
of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

317. Whoever being the father or mother of a child under
the age of twelve years, or having the care

donment U of chi?d uSr of such child, shall expose or leave such
twelve years, by parent child in any place with the intention of wholly
or .person having care suc h child, shall be punished

* with imprisonment of either description

for a term which may extend to seven years, or with fine, or with
both.

Explanation . — This section is not intended to prevent the
trial of the offender for murder or culpable homicide, as the case
may be, if the child die in consequence of the exposure.

Analogous law : — Under the corresponding English statute, s. 27, it is
necessary to prove that the life of the child was endangered, or that its health was
permanently injured or was likely to be so injured. Under the Indian law there is
no such limitation. The language of this section is different from the English statute
24 and 25 Viet,, c. 100, s. 27 of which runs as follows

“ Whosoever shall unlawfully abandon or expose any child, being under the
age of two years, whereby the life of such child shall be endangered or tne health of

SEC. 317 ] OFFENCES AFFECTING THE HUMAN BODY

589

such a child shall have been or shall be likely to be permanently injured, shall be
guilty of a misdemeanour and being convicted thereof shall be liable, at the discretion
of the Court, to be kept in penal servitude for the term of three years, or to be im-
prisonment for any term not exceeding two years with or without hard labour. ”

This section renders punishaBle the act of the father or mother of a child
under the age of twelve years, who exposes it or leaves it in any place with the
intention of wholly abandoning it (q).

Object !— The real object of s. 317 is the prevention of abandonment or
desertion by a parent of his or her child of tender years in such a manner that
children not being able to take care of themselves may run the risk of dying or being
injured. The section implies that children left without any protection are the
objects of its provision (r).

Scope : — The gist of an offence under this section is the exposure or leaving
of the child in any place with the intention of wholly abandoning it. Here, as in
many otjber places in the Penal Code, the legislature looks mainly to the intention
of the accused person rather than to the consequences of the act done, which form
an essential element of the offence under the English law (s).

Procedure : — Cognizable— Warrant — Bailable — Not compoundable — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class (t).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, being the father (or mother or having the care) of a certain child

under the age oi twelve years, to wit , of the age of years

did expose (or leave) the said child in a certain place to wil , with the inten-

tion of wholly abandoning it, and thereby committed an offence punishable under
s. 317 of the Indian Penal Code and within my cognizance or the cognizance of the
Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court (in cases tried not by
Magistrate) on the said chaige.

Separate sentence: — Where a mother abandoned her infant child, with the
intention of wholly abandoning it, aftd knowing that her act was likely to cause
death, and the child died in consequence of its exposure, it was held that as long
as the child remained alive the charge under s. 317 of exposure ' with intent to
abandon could have been properly sustained and as provided by the Explanation
at the end of s. 317, such conviction would have been no bar in the event of the
child's death to a prosecution for culpable homicide, but when the child died, the
offence under s. 317 became absorbed in v the more serious offence under s. 304
and she could be punished under s. 304 only and not under both the sections (t).

Whoever being the father or mother of a child under twelve years
of age or having the care of such child A person who has the custody of a
child merely for the purpose of exposing it, cannot be indicted as a person 4 having
the care of such child.* In England, where the mother of an illegitimate child,
five weeks old, put it in a hamper wrapped up in a shawl and sent off the child to its
father's address by rail, it being delivered there in a little less than an hour, it was
then taken by the relieving officer the same evening to the workshouse, where
it died in three weeks from causes not attiibutable to the conduct of the prisoners,
but it was held by a majority of the fifteen judges that this amounted to an abandon-

(q) Antahkee % (1901) 24 M. 002 at p. 004.

(r) Felani Hariani , (1871) 10 W. R. (CrJ 12.

(s) A ntakkee, (1901) 24 M. 662 (004).

(t) These words were substituted for “ Court of Session " by Act XVIII
of 1923.

590

THE INDIAN PENAL CODE

[CHAP. XVI

ment and exposure whereby the life of the child was endangered (u) ; and eo where
a mother who was living apart from her husband left the child at his door, and he
refused to take it saying “ it must bide tbfcre for what he knew, and then the mother
ought to be taken up for the murder of it,” he was convicted under the statute
24 and 25 Viet., c. 100, s. 27 fv).

A and B were two sisters. Accused A who was unmarried and a girl of four-
teen became pregnant and with the help of her sister accused fi, she went to the Civil
Hospital at Ahmedabad, where she gave birth to an illegitimate child. Fifteen
days afterwaids both the accused drove from the hospital to a railway station and
accused A gave her child to accused B who canied it by a tail way train and
abandoned it in a second class compartment and got out of the carriage leaving the
child under the seat and turning the light. The child was carefully wrapped up
and was provided with a bottle of milk. The train went on, and at the next stop
the child was found by a passenger and given over to the police. They were ac-
quitted, but the Bombay High Court revised the order of acquittal and held that
the intention of both the sisters was to get rid of the child and convicted both the
accused under Ss. 317 and 109 of the Code and directed that each of them do
undergo one day's simple imprisonment (w).

'shall expose or leave such child in any place with the intention of wholly
abandoning such child 9 : — “ The provisions of the English Act are limited to
childien under two years of age, while in India they are extended to children under
twelve years of age. The English Act does not define the mode of such abandon-
ment or exposure and no doubt the word 4 expose * read with the word ‘ abandon '
would probably be held to be used in a wider and less literal seme than the words
of the Penal Code. It seems to me that the words of s. 317 should be dealt with
in the most literal sense. To ‘ expose ' literally means to physically put outside,
so that such putting outside involves some physical risk to the person put out.
Having refeience to a child it would mean putting it somewhere where it could
not receive the protection necessaiy for its tender age. The exposuie contemplated

by the Act is one by which danger to li c e might immediately ensue

It seems to me that, as the word * leaves * comes in immediate juxtaposition with
the word ‘ expose,* the word * leaving * means leaving in a sense ejusdem generis
as the exposure, and indicates an offence only slightly distinguishable from ex-
posing ” (x).

To constitute an offence under this section it is not necessary that the exposure
and abandonment referred to in it must be under such circumstances as to endanger
the life, or health of the child. The only intention required to complete the offence
is an intention of wholly abandoning the child (y).

The fact that the wife leaves the child in her husband's vacant house during hit
temporary absence from home would not amount to its ‘ exposure * or leaving in a
place if the husband was to, and did in fact, return. There must be an intention
wholly to abandon the child . The phrase ‘ to abandon a child ’ in its ordinary
acceptance means something more than merely to go away from it. In fact the idea
of leaving without protection comes in (z). Where the accused who was a beggar
woman and a widow, deposited her illegitimate child about 3 months old close by a
channel some 200 yds. from the house of one Kartha and went away to another
village and the child was found by Kartha and was taken care of by him, but died
a few days after and the Session? Judge held that the accused intended that the

(u) Falkingham, (1870) L. R. I. C. C. R. 222.

(v) White , (1871) L. R. I. C. C. R. 311.

(w) Blanc hi C. Cripps, (1916) 41 & 152 : 18 Bom. L. R. 934.

(x) Mirichia, (18 96) 18 A. 364 (366).

(v) Boy a Sunkulamma, (1800) 1 Weir 33 J (332).

(z) Mmsamat Bharam , (1878) P. R. No. 5 of 1878,

SEC. 318] OFFENCES AFFECTING THE HUMAN BODY

591

child should be found and cared for by Kartha, the owner of the neighbouring house
and acquitted the accused. The High Qourt of Madras held that the acquittal was*
wrong— the gist of the offence under this section is the exposure or leaving with
intention wholly to abandon, and *the manner of exposing or leaving, and the
consequences likely to ensiiearenot essential ingredients, though they may be taken
into consideration in passing sentence^). So where a woman abandoned her new-
ly bom child by leaving it close to $ village and near a public road and the child was
soon di .covered, it was held that she was guilty of this offence, and not an offence
of attempt to ^ murder (b).

Explanation : Blair, J., held : “ The explanation of s. 317 seems to me to
indicate with much clearness the scope and purview of the section and the nature
of the evil against which it sought to provide. That explanation provides for the
case of injuries actually ensuing that the guilty person shall be punished for the
inj'ury so inflicted according to the circumstances under which the injury is done,

for murder or culpable homicide as the case may be 44 (c). ^ The words in the
explanation 4 if the child die in consequence of the exposure 4 mean 4 dies from
cold, or some other result of exposure 4 and do not refer to deaths which may
possibly have resulted afterwards from a deprivation of natural and a substitution
of artificial sustenance 44 (d).

Where a young married woman bore an illegitimate child in her husband's
house ; ten days after the birth she left the home and it was fed for four days partly
with cow’s milk and partly from the breast of its mother's sister, but eventually died
from natural causes and the accused was thereupon convicted of culpable homicide,
but Tyrell, J., set aside the conviction holding that the death of the child was due to
natural causes (e).

318. Whoever, by secretly burying or otherwise disposing
Concealment of birth of the dead body of a child, whether such
by secret disposal of child die before or after or during its birth,
dead body. intentionally conceals or endeavours to con-

ceal the birth of such child, shall be punished with imprisonment
of either description for a term which may extend to two years,
or with fine, or with both.

Mayne in his valuable Commentary observes: “Section 3! 8 is intended,
indirectly, to protect children, by rendering it an offence intentionally to conceal
the birth of a child, by secretly burying or otherwise disposing of its dead body,
whether it die before or after, or during its birth. The section is designed to meet
the case of illegitimate children, which is gyrohably th$ only case in which such a
concealment would be attempted 44 (f).

Analogous law : — This section is virtually the same as the English statute
24 and 25 Viet., c. 100, s. 60 of which runs as follows : —

“ If any woman shall be delivered of a child, every person who shall by any
secret disposition of the dead body of the said child, whether such child died before,
or after its birth, endeavour to conceal the birth thereof, shall be liable, at the
direction of the Court to be imprisoned for any term not exceeding two years, with or
without hard labour. "

Hence the decisions on that statute will be followed in India .

(a) Antakkee, (1901) 24 M. 662.

(b) Kundan, (1903) A. W. N. 43.

(c) Miricha, (1890) 18 A. 364 (366).

(d) Khoda Bux Fakeer , (1868) 10 W. R. (tr.) i>2.

(e) Musst. Jeoni, (1893) A. W. N. 100.

(f) Mayne, ‘ Criminal Law of India, ' 3rd Ed., p. 690.

592 THE INDIAN PENAL CODE [CHAP. XVI

‘secretly burying or otherwise disposing of the dead body of*
child *: — A woman delivered of a child borraalive, endeavoured to conceal the birth
thereof, by depositing the child while alive in a coiner of a field, leaving the infant
to die from exposure, which it did and thejiead body was afterwards found in the
corner. Held , that she could not be convicted of conc&ling the birth of her child
under 24 and 24 Viet., c. 100, s. 60, which ^elates to secret disposition of the
child (g). Where the prisoner was detected* while carrying a bundle containing
the body of her dead child across a yard in the direction 6f a privy, Gurney B. t
directed an acquittal, holding that she was interrupted in the act, probably of dis-
posing of the body but the act was incomplete (h). Where the prisofrtof -had gone
to the privy and was there delivered of a child which fell and got suffocated in the
soil, Patterson, J., held that there had been no disposal as it was essential to the
commission of the offence, that the prisoner should have done some act of the dis-
posal of the body after the child was dead (i). Where the prisoner was indicted for
unlawfully exposing the dead body of her infant child near a public highway and the
Jury found that the body was thus exposed by the prisoner, Denman, J.j held that
the facts proved constituted an offence at common law (j). Where a woman put
the dead body of her child over a wall into a field, through which there was no
thoroughfare and the field was one used for grazing cattle in which no one had any
business except those who had to do with the cattle, Brett, J., held that there was
evidence to go to the Jury of a secret disposition, and Bolvill, C. J., said : “What is a
secret disposition must depend upon the circumstances of each particular case. The
most complete exposure of the body might be a concealment. As for instance, if
the body were placed in the middle of a moor in the winter, or on the top of moun-
tain, or in any other secluded place where the body would not be likely to be
found " (k).

* intentionally conceals or endeavours to conceal the birth of a
child 9 : — In England it has been held that in order to support a conviction the
child must have arrived at such maturity that it might have been born alive (1).
Earle, J., observed in Berrimans ca«e (1) as follows: “There is no law which
compels a woman to proclaim her of want of chastity and if she had miscarried at
a time when the foetus was but a few months old, and therefore could have no
chance of life, you could not convict her “ (m). A foetus not bigger than a man's
finger but having the shape of a child, is a child within the meaning of the English
Statute (n). In a later decision, Smith, J., left it to the Jury to say whether the
offspring had so far matuied as to be a child, or was only a foetus, or the un-
formed subject of a premature* miscarriage (o).

To support a conviction underthis section it is sufficient to show that a child
was born and that the child was sufficiently developed to have lived if born alive (p).

Where the dead bddy of an iUegfaimate child was found a few hours after its
birth, on the floor of an attic in a nouse where the prisoner lived as a domestic
servant, the head severed from the body, and both lying in sheets which had been
removed from the bed-room below, which was occupied by the prisoner and his
mistress and where there was evidence to show that the birth had taken place,
but it was doubtful whether the severance of the head from the body was effected

(g) Jane Mav, (1867) 10 Cox. 448.

(h) Snell , (1837) 2 Moo. and I. R. 44.

(i) Turner , 8 C. and P. 755.

(j) Jane Clark, (1883) 15G>x. 171.

(k) Brown , (1870) L. R. 1 C. C. R. 244.

(l) Berriman, (1854) 6 Cox. 388.

(m) Ibid. t

(n) Colmer, (1864) 9 Cox. 506.

(o) Hewitt , (1866) 4 F. and F. 1101.

(p) Rudha Ranga , (1899) 1 Bom. L. R. 155.

SEC. 318 ] OFFENCES AFFECTING T#fe HUMAN BODY 593

there or in the attic, it was held that there was no evidence to warrant the Jury
in finding a verdict for the statutable misdemeanour of endeavouring to conceal
the birth (q).

Where a woman was delivered of a child, the dead body of which was found
in a bed amongst the feathers, but there was no evidence to show who put it there,
and it appeared that the mother had sent for a surgeon at the time of her confine*
menl and had prepared the child’s clothing, the Judge directed an acquittal on the
charge for endeavouring to conceal the birth (r).

The offence contemplated by this section becomes complete when the accused
conceals the birth of her child by burying the body of child the independently of
the question ‘‘ whether such child dies before or after or during its birth ” (s).

The endeavour to conceal the birth of a child by a secret disposition of the
dead body within the meaning of the Statute 24 and 29 Viet., c. 100, s. 60 must
be by putting it into some place where it is not likely to be found. Placing it in an
open box in the prisoner’s bed-room, and afterwards, on inquiry by the medical
man, informing him that the child was in the box where it was found, is not a secret
dispostion within the statute (t). If any disposition or concealment is made, it
does not matter whether it is final or temporary (u).

In a case of concealment of biith under Statute Geo. IV, c. 31, s. 14 it is
essential to the commission of the offence that the pi isoner should have done some
act of disposal of the body after the child was dead ; therefore, if the prisoner had
gone to a privy for another purpose, and the child came from her unawares, and
fell into the soil and was suffocated, she must be acquitted of this charge notwith-
standing her denial of the biith of the child (v).

Mere proof that a woman was delivered of a child and allowed two others to
take away its body was held insufficient to sustain an indictment against her for
concealment of birth (w).

Where a woman gives her new-born illegitimate dead child to another woman
with instiuctions of throwing it in a river, the mother cannot be convicted of the
substantive offence under this section but her offence can more appropriately come
under the definition of abetment (x).

Procedure Cognizable — Warrant — Bailable-yNot compoundable— ' Triable

by Court of Session, Presidency Magistrate or Magistrate of the first class (y).

Charge I ( name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows: —

That you, on or about the day of — t , at ,

by secretly burying (if any other mode of disposing of the dead body adopted, specify

the mode) the dead body of a certain child -to wit , the

qjhild of XY, intentionally concealed (or endeavoured to conceal) the birth of the
said child and thereby committed the offence punishable under $. 318, and
within my cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by (the said Court) in cases tried by
Magistrate, omit these words) on the said charge.

(q) Goode t (1855) 0 Cox. 318.

(r) Higley, (1830 ) 4 C. and P. 360.

(s) Lalbxt, (1898) Rat. Unreported Cr, C, 961.

(t) Sleep, (1804) 9 Cox. 659.

(u) Sarah Goldthorpe, (1841) 2 Moody C. C. 244 ; Jane Perry, (1855) 6 Cox. 531.

(v) Harriet Turner, (1839) 8 C. and P. 755.

(w) Emma Bate, (1871) 11 Cox. C. C. 080.

(x) Baji, (1895) Rat., Unrep. Cr. C. 775.

(y) The words " or second class ” (Magistrate) were omitted by the amended
Code of Criminal Procedure Act XVIII of 1923,

44

594

THE INDIAN PENAL CODE [CHAP. XVI

Of Hurt.

319. Whoever causes bodily ‘pain, disease or infirmity to
Hurt. any person is said to cause hurt.

Analogous law : — In English law assault and hurt are designated as * assault
and battery/ An assault is an attempt to offer, with force and violence, a corporal
hurt to another as by striking at another with a stick or other weapon, or without
a weapon, though the party striking misses his aim (z). A battery is more than an
attempt to do a corporal hurt to another. It is an actual injury, be it ever so small,
but actually done to the person of a man fa).

So the Authors of the Code observe : “ Many of the offences which fall under
the head of hurt will also fall under the head of assault. A stab, a blow which frac-
tures a limb, the flinging of boiling water over a person are assaults, and are also acts
which cause bodily hurt. But bodily hurts may be caused by many acts which are
not assaults. A person, for example, who mixes a deleterious potion, and places it
on the table of another ; a person who conceals a scythe in the grass on which
another is in the habit of walking ; a person who digs a pit in a public path, intend-
ing that another may fall into it, may cause serious hurt, and may be justly punished
for causing such hurt, but they cannot, without extreme violence to language, be
said to have committed assaults.

44 We propose to designate all pain, disease and infirmity by the name of
hurt 14 (b).

Bodily pain : — Where the bailiff proceeded to the piemises, and on the
occupant’s wife refusing to vacate, pulled or dragged hei out of the house, and the
force used for the purpose caused her, when released, to fall on the ground whereby
she received slight injuries, it was held that he was legally justified in the employ-
ment of such amount of force and could not be convicted under this section (c).

Where a person travelled without a ticket, not with intent to defraud but
because he arrived as the train was about to start, and was, therefore, unable to pur-
chase one, and when asked for it by the travelling ticket-checkers, he offered to pay
the fare and excess charge on grant of a receipt, but refused to leave the compart-
ment and purchase a ticket ai he was directed to do by the ticket-checkers, it was
held that the ticket-checkers had no lawful authority to remove him thereupon
forcibly from the carriage and to beat him with their fists, and that they were guilty
of an offence under this section (d).

Cases of hurt where a person is killed when death was neither intended
nor the act was likely to cause death s— Where the accused upon being insulted
by a companion in a drunken brawl, threw him down upon the ground, and
stamped his feet twice upon 'him, thereby causing his death within 20 days, it was
held that the offence was punishable under this section and not under s. 304-A (e).
Where the accused threw his stick at deceased with such force that it hit deceased
on the head with the point and made a punctured wound which caused his death,
the Magistrate held that it was doubtful from the authorities whether the case would
fall within this section or s. 304-A and that according to the facts, the case could
not come within the terms of s. 304-A because injury was intentionally caused tb
the deceased (f). Where in the course of an altercation between the accused and

(z) 1 Hawk. P. C. c. 62 s. I.

(a) 1 Hawk. P. C. c. 62 s. I.

(b) Note M.

(c) Meredith v. Sanjihani Dasi , (1914) 42 C. 313 : 19 C. W. N. 273.

(d) Mahomed Hossain v. Forley , (1916) 44 C. 279. •

(e) Eadkia Badru, (1872) Rat. Unrep. Cr. C. 67.

(f) William Keegan, (1893) Rat. Unrep. Cr. C. 673.

SEC. 319 ] OFFENCES AFFECTING THE HUMAN BODY 595

the complainant on a dark night, the former aimed a blow with his stick at the head
of the latter and, to ward off the blow, the complainant's wife, who had a child
on her arms, intervened between them, and the blow missed its aim, but fell on the
head of the child causing severe injuries, from the effects of which it died, and upon
these facts tjie Magistrate convicted the accused of causing grievous hurt, but it was
held on appeal that inasmuch as the blow, if it had reached the complainant, would
have caused simple hurt, the accused was guilty of simple hurt only (g).
Where, according to the prisoner’s own confession (which was the only direct
evidence against her), she, with a view of chastising the deceased, her daughter of
8 or 10 years of age foi impertinence, but without any intention of killing her, gave
her a kick on the back and two slaps on the face the result of which was death, it
was held that the conviction should be under s. 323 (h) ; but where an accused struck
a woman, carrying an infant in her aims, violently over head and shoulders, and
one of the blows fell on the child’s head, causing death, it was held that the accused
had committed hurt on the infant under circumstances of sufficient aggravation to
bring the offence within the definition of ‘ grievous huit ’ fi). Where in a sudden
fight between G, S and M on one side and D, R and /, on the other, for which G
on his side and D on the other side were chiefly to blame, and in which blows
of ordinary sticks and of fists were exchanged, and it was alleged that Q took up a
heavy Sudwai of an Ekka close by and gave a severe blow on the head of G which
fractured his skull-bone and ultimately resulted in his death, but it was neither
proved conclusively that D did so , nor was there any indication that originally
D or any member of his party intended or knew it to be likely that any such serious
injury would be caused, it was held that D could not be convicted of an offence
under s. 304 or s. 325, and that D and his party were only responsible for
simple hurt under s. 323 (j). Where the accused after a trivial domestic
quart el beat his wife with a light stick, with the result that she fell down and expired,
and the medical evidence showed that the deceased was a thin and poorly developed
woman, that her brain was anaemic, but otheiwise all the internal organs were
healthy and uninjured, no bones were broken, but there were many bruises on the
body and death was due to shock, it was held that the accused could not be
convicted under s. 304 (2), but could be convicted only under this section (k).

Spleen disease : — Where a person hurt another, who was suffering from
spleen disease, intentionally, but without the intention of causing death or causing
such bodily injury as was likely to cause death or the knowledge that he was likely
by his act to cause death, and by his act, caused the death of such other persons
it was held that he was properly convicted under s. 323 (1). Where a person with-
out the intention to cause death, or to cause such bodily injury as was likely to cause
death, or the knowledge that he was likely by his act to cause death, threw a piece of
a brick at him which struck him in the region of spleen and ruptured it, the spleen
being diseased, it was held that the accused had not committed the offence of causing
death by rash or negligent act but was guilty of voluntarily causing huit (m).
Wheie a wife died from a chance kick in the spleen inflicted by her husband on pro-
vocation given by the wife, the husband not knowing that the spleen was diseased,
and showing by the blow itself and by his conduct immediately afterwards that he
had no intention or knowledge that the act was likely to cause hurt endangering

(g) Chatur Natha , (1919) 21 Bom. L. R. 1101 : 5 Bom. Cr. C. 152.

(h) Beshor Bewa t (1872) 18 W. R. (Cr.) 29.

(i) Sahae Rac, (1878) 3 C. 023.

(j) Dhani Ram , (1912) P. L. R. No. 162 of 1913.

(k) Mahomed AH, (1913) P. L. R. No. 157 of 1913.

(l) Fox, (1879) 2 A. 522. See also O’Brien, (1889) 2 A. 700; Mahabir , , (1921)
19 A. L. J. 295.

(m) Randhir Singh , (1881) 3 A. 597.

THE INDIAN PENAL CODE

596

[CHAP. XVI

Human life, held that the husband was guilty of an offence under Ss. 319 and 321
and not of an offence under Ss. 320 and 322 (n).

320. The following kinds of hurt only are designated as

Grievous hurt. “ grievous ” : —

First. — Emasculation .

Secondly . — Permanent privation of the sight of either eye.

Thirdly. — Permanent privation of the hearing of either ear.

Fourthly . — Privation of any member or joint.

Fifthly. — Destruction or permanent impairing of the powers
of any member or joint.

Sixthly . — Permanent disfiguration of the head or face.

Seventhly. — Fracture or dislocation of a bone or tooth.

Eighthly. — Any hurt which endangers life or which causes
the sufferer to be, during the space of twenty days, in severe bodily
pain, or unable to follow his ordinary pursuits.

The Authors of the Code observe “We have found it very difficult to
draw a line between those bodily hurts which are serious and those which are slight.
To draw such a line with perfect accuracy is, indeed, absolutely impossible ; but
it is far better that such a line should be drawn, though rudely, than that offences
some of which approach in enormity to murder, while others are little more than
frolics which a good-natured man would hardly resent, should be classed together.

44 We have, therefore, designated certain kinds of hurt as grievous — We have
given this name to emasculation — to the loss of the sight of either eye — to the loss of
hearing of either ear— to the loss of any member or joint— -to the permanent loss or
the imperfect use of any member or joint— to the permanent disfiguration of the
head or face — to the fracture and to the dislocation of bones. Thus far we pro-
ceed on sure ground. But a more difficult task remains. Some hurts which are
not, like those kinds of hurts which we have just mentioned, distinguished by a
broad and obvious line from slight hurts, may nevertheless be most serious. A
wound, for example, which neither emasculates the»sufferer nor blinds him, nor
destroys his hearing, nor deprives him of a member or a joint, nor permanently
deprives him of the use of a member or a joint nor disfigures his countenance, nor
breaks his bones, nor dislocates them, may yet cause intense pain, prolonged disease,
lasting injury to the constitution. It is evidently desirable that the law should
make a distinction between such a wound, and a scratch which is healed with a
little sticking plaster. A beating, again, which does not maim the sufferer or
break his bones may be so cruel as to bring him to the point of death. Such a
beating, it is clear, ought not to be confounded with a bruise which requires only to
be bathed with vinegar, and of which the traces disappear in a day.

44 After long consideration, we have determined to give the name of grievous
bodily hurt to all hurts which cause the sufferer to be in pain, disease or unable to
pursue his ordinary avocation, during the space of twenty days " (o).

(n) Bysagoo Noshyo , (1867) 8 W. R. (Cr.) 20.

(o) Note M.

(p) First Report, S. 367,

SECS. 321-22 ] OFFENCES AFFECTING THE HUMAN BODY 597

First : — Emasculation : — The Law Commissioners observe : “ Upon

the first head in this clause Mr. Thomas says : * To emasculation I would add
an injury to the membra privata * " (p). *

Where the prisoner by gripping and squeezing the testicles of the deceased
reduced them to a pulpy condition thereby causing an injury which resulted in
death due to the shock on the nervous system, it was held that she ought to be
convicted under this section (q).

One who emasculates himself cannot be punished under s. 325 or under any
other section of the Code (r).

Secondly s— Permanent privation of the sight of either eye Unless
eye-sight is injured permanently the hurt cannot be called grievous.

For further commentary see notes under S$. 319 and 325.

32L Whoever does any act with the intention of thereby
Voluntarily causing causing hurt to any person, or with the
hurt - knowledge that he is likely thereby to cause

hurt to' any person, and does thereby cause hurt to any
person, is said “ voluntarily to cause hurt.”

Act — Ss. 32, 33. Hurt — s. 319 Voluntarily — s. 39.

Mayne in his valuable commentary says : “The word ‘voluntarily* is defined
by Ss. 321 and 322. It will be observed that the only thing which has to be con-
sidered under each definition is the state of the prisoner’s mind at the moment the
act is committed. If he then intended or knew that he was likely to cause grievous
hurt, the soundness of the intention will be immaterial *’ (s).

322# Whoever voluntarily causes hurt, if the hurt which
he intends to cause or knows himself to be
grSSS. CaUSine Hkely to fcausc is grievous hurt, and if the

hurt which he causes is grievous hurt, is said
“ voluntarily to cause grievous hurt.”

Explanation . — A person is not said voluntarily to cause
grievous hurt except when he both causes grievous hurt and
intends or knows himself to be likely to cause grievous hurt. But
he is said voluntarily to cause grievous hurt, if intending or know-
ing himself to be likely to cause grievous hurt of one kind, he
actually causes grievous hurt of another kind.

Illustration .

A, intending or knowing himself to be likely permanently to disfigure Z*& face,
gives Z a blow which does not permanently disfigure Vs face, but which causes Z to
suffer severe bodily pain for the space of twenty days. A has voluntarily caused
grievous hurt.

Voluntarily — s. 39. Hurt— s. 319.

Grievous Hurt — s. 320.

(q) Kalyani, (1800) 19 M. 306.

(r) Madho Singh, (1878) P. R, No. 22 of 1878.

(s) Mayne, * Criminal Law of India, * 3rd Edition, p. 638.

598

THE INDIAN PENAL CODE

[CHAP. XVI

In the execution of a writ of possession a bailiff may use reasonable degree of
force in order to remove persons bound by the decree refusing to vacate (t).

323 . Whoever, except in the case provided for by section
334, voluntarily causes hurt, shall be punished
teriiy U c^ng t hurt? lun " with imprisonment of either description for
a term which may extend to one year, or with
fine which may extend to one thousand rupees, or with both.

Hurt— s. 319. Voluntarily — s. 39.

Voluntarily causing hurt— s. 321.

Analogous law This section prescribes punishment for ‘hurt* as defined
in s. 319. Ss. 324, 327, 328, 329 and 330 deal with the same offence attended
with aggravated circumstances, whereas Ss. 334, 336 and 337 provide for lesser
punishment if the offence of hurt is caused under mitigating circumstances pre-
scribed in those sections.

Procedure : — Non-cognizable — Summons — Bailable Compoundable

Triable by any Magistrate — Triable summarily.

Summary trial -A summary trial on a charge under s. 147 is illegal even
though the conviction is based only under this section (u). *

The Calcutta High Court by a circular lettei ordered : “The Court desires
to observe that in cases where death appears to have resulted from injuries volun-
tarily inflicted by the party accused. Magistrates ought to be very careful not to
take it upon themselves to absolve the accused from the graver charge, and convict
them of hurt or grievous hurt only, unless they are quite clear that there is no
sufficient evidence to warrant a commitment to the Session for murder or culpable
homicide not amounting to murder ” (v).

Prosecution does not abate by the death of the person injured (w).

Where the complainant in a summons case dies during the pendency of the
case, the Magistrate should, under s. 247, Cr. P. Code, dismiss the complaint.
It would be illegal for the Magistrate to grant an adjournment to enable the de-
ceased complainant’s son to come on the record and to proceed further with the
enquiry (x).

Alteration of conviction A conviction 147 and 323 cannot

be altered on appeal to one under s. 160 as the offerees are different (y); the
Allahabad High Court has however, held that a conviction under s. 160 on a
prpsecution started by the police would be no bar to a subsequent trial for an offence
under this section upon a complaint by the party injured (z).

In the absence of a charge under this section framed during trial the con-
viction under s. 147 cannot be altered to one under s. 323 (a). In Fatal Ghosh's
case (b) the alteration of convictions bv the appellate Court from one under s. 325
to s. 323 was held to be bad inasmuch as the accused had not been given any

(t) Meredith v. Sanjibani Dasi, <!914) 42 C. 313 : 19 C. W. N. 273. ~~

(u) Ganu Sadu , (1928) 30 Bom. L. R. 371, following Chandra Mohan Das
Mandal, 27 C. W. N. 148.

(v) (1869) 12 YV. R. Cr. Cir. 7.

(w) Muhammad Ibrahim Sahib v. Shaikh Davood, (1920) 44 M. 417, followed in
Musa t (1924) 22 A. L. J, 520 : A. I. R. (1924) All. 668 ; Hazara Singh, (1920) 2 L. 27.

(x) Appala Naidu , (1927) 51 M. 339.

(y) Srecramulu , (1924) 47 M. 61.

(z) Ram Sukh, (1924) 47 A. 284, followed in in re. Dodhu Kalu Mehr, (1929) 31
Bom. L. R. 922 where Kallaswami, (1927) 29 Bom. L. R. 1478 was distinguished.

(a) Rakhal Chandra Biswas, (1924) 30 C. W. N. 528, fdllowing Genu Majhi, (1914)
18 C. W. N. 1276 which, again, followed Yakub AH, (1902) 30 C. 288.

(b) 24 Cr.^L. J. 312: 72 I. C. 72.

SEC. 323 ] OFFENCES AFFECTING THE HUMAN BODY

599

opportunity of meeting the charge of inflicting injuries other than the injury on the
knee-cup which formed the subject of a charge under s. 325.

Order under s. 106, Cr. P. Code s — A Magistrate having convicted an
accused person under this section cannot bind him over to keep the peace
under s. 106, Cr. P. Code, unless he also finds that the offence was one involving
a breach of the peace (c). This view, however, was considered by the same High
Court in the case of Mewa Lai (d) where it was held that in all ordinary cases of
conviction under this section there is a conviction for an offence involving a
breach of the peace and the desirability of taking security must depend upon how
far the circumstances indicate that upon such a breach of the peace is likely tb
occur.

Charge : — The charge should run as follows : —

I ( name and office of Magistrate, etc.) hereby charge you ( name of accused)
as follows : —

That you, on or about the day of , at ,

voluntarily caused hurt to XY and thereby committed an offence

punishable under s. 323 of the Indian Penal Code, and within my cognizance.

„4^d I hereby direct that you be tried on the said charge.

Compounding of offences s — Where a Magistrate purported to accept a
compromise entered into between the complainant and persons accused of com-
mitting offences under s. 24 of the Cattle Trespass Act (non-compoundable offence)
and s. 323, I. P. C., in pursuance of which the complainant had refrained from
producing evidence against the accused, it was held that the order of acquittal was
substantially right although the High Court held that the procedure of the Magis-
trate was incorrect (e).

Separate sentences s — See notes under s. 71, supra .

Where the accused was convicted under S>. 323 and 147, the Allahabad
High Court held that offences under Ss. 147 and 323 need not be separable, but
distinct offences and in the case before them, the Judges held that the offence of
causing hurt was distinct and apart, from the offence under s. 147, and the Court
held that separate conviction and separate sentence were maintainable (f).

Non-compliance with the provisions of s. 263, Cr. P. Code Effect
of : — Where the Magistrate convicted the accused under Sr. 323 and 426 without
recording the plea of the. accused and his examination as required by s. 263 (g), Ci.
P. Code and without giving a brief statement of his reasons upon which his finding
was based, held that the conviction was bad (g).

Previous acquittal: — A person tried on a charge of using criminal force
under s. 352 (which includes the offence of and acquitted battery) cannot be
tried, in respect of the same criminal matter on a charge of hurt (h), but the ac-
quittal of an accused of an offence under s. 324 does not operate as a bar to his pro-
secution under s. 19 (e) of the Indian Aflrns Act (i).

Conviction under rioting charge— Appeal— Acquittal— Conviction

for trespass : — Where the Magistrate convicted the accused of the only charge of

(c) AtmaRam , (1926) 49 A. 131.

(d) (1929) 27 A. L. J. 340.

(e) Julua , (1919) 42 A. 202 : 18 A. L. J. 90.

(f) Katwara Rai, (1917) 39 A. 623 ; In re. Kunnayal Mayan, (1927) 53
M. L. J. 656, following Bish , (1922) 73 I. C. 517 ; Anthoni Vdayan v. Royapuddayar,
(1927) 53 M. L. J. 653: (1927) M. W. N. 850; Chidda, (1925) 24 A. L. J. 178.

(g) Murat Singh , (1927) 26 A. L. J. 109.

(h) Kaptan v. Smith , (1871) 16 W. R. (Cr.) 3.

(i) Manjubhai, (1929) 53 B. 604 : 31 Bom. L. R. 536, following Jivram Duikarji,
1915) 40 B. 97 and Crift , (1895) 23 C. 174.

600 THE INDIAN PENAt CODE ( CHAP. XVi

rioting and on appeal the Sessions Judge acquitted them of rioting but convicted
them under $. 448 and s. 323 of trespass and hurt, held that the conviction by the
Sessions Judge should be set aside (j).

Bona fide action of schoolmaster in inflicting punishment Brown,
J., in selling aside the conviction of a school-master under this section held that
he must be held to have inflicted the punishment bona fide for the good of the boy
and in the interests of school discipline (k).

324 . Whoever, except in the case provided for by section
Voluntarily causing 334, voluntarily causes hurt by means of any

hurt by dangerous
weapons or means.

instrument for shooting, stabbing or cutting,
or any instrument, which, used as a weapon
of offence, is likely to cause death, or by means of fire or anv heated
substance, or bv means of any poison or any corrosive substance,
or by means of any explosive substance or by means of any sub-
stance which it is deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by means of any animal,
shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.

Voluntarily — s. 39. Animal — s. 47.

The Authors of the Code observe : “ Bodily hurt may be inflicted by means
the use of which gencially indicates great malignity. A blow with the fist may cause
as much pain, and produce as lasting injury, as laceration with a knife or branding
with a hot iron. But it will scarcely be disputed that in the vast majority of cases,
the offender who has used a knife or hot iron for the purpose of wreaking his hatred
is a far worse and more dangerous member of society than he who has only used his
fist. It appears to us that many hurts which would not according to our classifica-
tion, be designated as grievous, ought yet, on account of the mode in which they
are inflicted, to be punished more severely than many grievous hurts. We pro-
pose, therefore, that where bodily hurt is voluntarily caused by means of any sharp
instrument, of fire, of any heated substance, of any corrosive substance or of any
poison, internal or external, of any explosive substance; or of any animal, the
maximum of imprisonment may be increased, in cases of grievous bodily hurt, to
fourteen years, in other cases to three years ” (1).

Procedure : — Cognizable — Summons — -Bailable Compoundable when per~

mission is given by the Court before which a prosecution is pending — Triable by
Couit of Session, Presidency Magistrate or Magistrate of the first or second class.

Charge ' The charge should state the kind of weapon with which a deceased
was struck (m).

Form of charge : — The charge should run thus : —

I (name and office of Magistrate, etc.) hereby charge you ( name of accused )
as follows: —

That you, on or about the day of , at — ,

voluntarily caused hurt to XY — - — by means of a gun (an instrument of

shooting) exhibit (or which is an instrument for stabbing or cutting

or which used as a weapon of offence is likely to cause death, etc.) and thereby

(j) Yakub Alt v. Lethu Thahur t (1902) 30 C. 288.

(k) Maung Ba Thaung , (1923) 3 R. 661 (666) A. I. R. (1026) Rang. 107, following
Cleary v. Booth , (1893) 1 Q. B. D. p. 466.

(l) Note M.

(m) 8 W. R. (fr. letters) 1.

601

SEC. 325 ] OFFENCES AFFECTING THE HUMAN BODY

committed an offence punishable under s. 324 of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session).

And I hereby direct that you be tried (by the said Court) (in cases tried by the
Magistrate , omit these words) on the said charge.

Separate sentences: — Where the prisoners were charged under s. 1 48 and
this section, the Calcutta High Court held that they should be sentenced only
under one or the other of these sections, the charges being properly speaking only
alternative charges (n).

Scope It is not necessary upon the construction of this section that the
manner of use must be such as is likely to cause death (o).

Hurt by dangerous weapon or means :~A hatchet is a dangerous weapon
and a person striking his wife with it and causing an incised wound is guilty of
causing simple hurt by a dangerous weapon (p).

It has been held that a lathi is a * deadly ' weapon within the meaning of
this section (q).

Bamboo sticks (two inches thick) are deadly weapons if they are used on a
vulnerable part (r).

Fire or heated substance : — Where the hurt is caused with some heated
substance, the Calcutta High Court held that the accused should be convicted
under this section (s).

Hurt by poison : — The term ‘ poison * is here used to denote any poisonous
substance, that is to say, a substance, which when administered is injurious to
health or life (t).

325. Whoever, except in the case provided for by section
Punishment for voiun- 335, vojuntarily causes grievous hurt, shall
tariiy causing grievous be punished with imprisonment cf either
hurt ' description for a term which may extend to

seven years, and shall also be liable to fine.

This section provides punishment for the offence of grievous huit as defined
in s. 320, supra .

Procedure Cognizable — Summons — Bailable— Compoundable when per-
mission is given by the Court before which a prosecution is pending — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first or second class.

The onus is on the accused, if he takes the plea of private defence, to show that
he did not exceed that right (u).

Charge . — The charge should state the kind of weapon with which the person
injured was struck (v); In describing this offence, the proper term which should
be used in the charge is ' voluntarily ' and not ‘ willingly ' (w). Where a person was
charged with culpable homicide and grievous hurt in one charge, it was held that

(n) Dinu Sheikh, (1868) 10 VV. R. (Cr.) 63.

(o) (1872) 7 M. H. C. R. App. 2.

(p) Martin Vithoba, (1013) 15 Bom. L. R. 901.

(q) (1012) P. L. R. 117 of 1012.

(r) Pedda Hempayya, (1929) M. W. N. 683,

(s) Baboo Koondu, (1870) 13 W. R. (Cr.) 23.

(t) Per Lord Coleridge, C. J., in Cramp, (1880) 5 Q. B. D. 307 (300).

(u) Asiruddtn Ahmed, (1004) 8 C. W. N. 714.

(v) (1807) 8 W. R. (Cr. Letters) I.

(w) (1866) 2 W. R. (Cr. L.) 20.

602 THE INDIAN PENAL CODE [ CHAP. XVI

the offences being distinct acts, the accused should be charged in separate heads
of the charge (x).

Where the only abetment with which the petitioner was charged was his
being present at the occurrence, and there was no evidence of any conspiracy prior
to the occurrence between the petitioner and his son to waylay and cut him, held
that the conviction of the petitioner under S$. 326/1 14 was legal (y).

Form of charge s— I ( name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at •

voluntarily caused grievous hurt to XY and thereby committed an

offence punishable under s. 325 of the Indian Penal Code, and within my cogni-
zance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried [by the said Court (in cases tried by
Magistrate , omit these words)] on the said charge (z).

Charge to the Jury : — In England it has been held that appellant’s defence
hovfever weak should be left to the Jury and that failure to so leave it amounted to
a miscarriage of justice and the conviction should be quashed (a).

Grievous hurt : — Foi definition see s. 320, supra . Intention and knowledge
arc the essential ingredients of the offence under this section.

In cases under this section the question should be considered as to who was
the aggressor, and whether the offence was committed in the exercise of the right
of private defence (b).

To establish a charge of grievous hurl, it is not necessary to prove that the
accused struck the complainant so severely as to endanger the latter’s life (c).

A violent blow inflicted upon the body indicates an intention of grievous
hurt (d).

The offence of administering deleteriouS drugs, when life is not endangered
is punishable under s. 328, and not under this section (e).

Where an accused struck his wife a blow on her head with a plough-share
which, though not shewn to be a blow likely to cause death, did in fact render her
unconscious, and believing her to be dead, in order to lay the foundation of a false
defence of suicide by hanging, the accused hanged her on a beam by a rope and
thereby caused her death by strangulation, the Madras High Court by a Full Bench
held that the accused was not guilty of either murder or culpable homicide, but the
accused was held punishable for assault (0. Where a man was so much injured
that he had to go to hospital, but left it perfectly cured on the twentieth day after
the hurt, it was held by Scotland, C. J., that this day woujd count as one of the
twenty days during which he had been unable to follow his ordinary pursuits (g).

(x) (1865) 3 W. R. (Cr. Letters) 15.

(y) In re. Vijyaranga Naidu, (1927) 53 M. L. J. 700, following Ram Ranjan Roy ,
(1914) 42 C. 4 22 : 19 C. W. N. 28 ; In re. Anandi, (1924) 21 L. W. 19 and In re . Jogali.
Bhigo Naiko, (1926) 97 I. C. 958.

(z) Criminal Procedure Code Sch. V. xxviii 8.

(a) Hill, (1911) 22 Cox. 625, see Bhagirath Chowdhury, (1925) 30 C. W. N. 142.

(b) Sohun , (1865) 2 W. K. (Cr.) 59.

(c) Purmanand D hulia, (1872) 18 W. R. (Cr.) 22.

(d) Narayan Past, (1875) 24 W. R. (Cr.) 24.

(e) Joy Copal, (1865) 4 W. R. (Cr.) 4.

(£) Palant Goundun, (1919) 42 M. 547 (F. B.).

(g) Reg- v Sheikh Bahadur , (1862) and Mad. Session.

SEC. 325 ] OFFENCES AFFECTING THE HUMAN BODY 603

Before a conviction can be passed for the offence of grievous hurt, one of the
injuries defined in s. 320 must be strictly proved, and that the eighth clause is nos
exception to the general rule that a penal statute must be construed strictly.

Proof of being in hospital for the space of twenty days cannot be taken as
equivalent to proof of giievous hurt (h).

Even in cases where death is caused the offence is held to be one of
grievous hurt : — Where a person voluntarily caused hurt to another who was
suffering from spleen disease, knowing himself to be likely to cause grievous hurt,
but without the intention of causing death ; or causing such bodily injury as was
likely to cause death or the knowledge that he was likely by his act to cause death,
and caused grievous hurt to the deceased, it was held that the accuped ought not
to be convicted under s. 304-A, but under s. 325 (i).

Where a person is beaten and death ensues in consequence of a rupture of a
deceased spleen, s. 321 is applicable to the case and not s. 304-A (j). Where several
accused peisons struck the deceased several blows one of which only was fatal, and
it was not found who struck the fatal blow, it was held that in the circumstances,
it could not be said that those who did not strike the fatal blow contemplated the
likelihood of such a blow being struck by the others in prosecution of a common
object and that they were all guilty under this section and not under s. 302 (k).

A police officer, finding one of the accused at night time carrying a long-
handled kulhariy and suspecting him to be on his way to kill a certain person with
whom he had enmity, demanded the kulhari and on refusal attempted to snatch
it fiom the accused. The latter called to others and the police officer was assaulted
by three men, grievous hull being inflicted upon him. The Lahore High Couit
upheld the conviction of the accused under s. 325 although it held that the act of
the Sub-Inspector in trying to snatch away an axe from the accused was wholly
without jurisdiction (1).

Where a person administers a well-known poison like arsenic 1o another he
must be taken to know that his act is so imminently dangerous that it must in all
probability cause death or such bodily injury as is likely to cause death and if death
ensues, he is guilty of murder, notwithstanding that his intention may not have
been to cause death (m).

Where there were 3 peisons on the side of the appelants and only two on the
side of the deceased, who accidentally received injuries on the head from whom
it was not clear, and subsequently died, the presumption is that the appellants were
the fiist to attack and were not acting in self-defence and they committed an offence
under this section and under s. 304 (n).

Separate sentences — see notes under s. 71, supra . The Calcutta High Court
by a Full Bench decision has held that separate sentences passed upon persons for
the offences of rioting and grievous hurt are not legal where it is found that such
persons individually did not commit any act which amounted to voluntarily causing
hurt, but were guilty of that offence under s. 149 (o). This case was distinguished
in another case wherfe six accused persons were charged with and convicted of

(h) Vasia Chella, (1894) 10 B. 247. See also Badri Roy, (1875) 23 W. R. (Cr.) 56.

(i) O'Brien, (1880) 2 A. 766 ; Idu Beg , (1881) 3 A. 776.

(j) Bawaji, (1872) Rat. Unrep. Cr. C. 63.

(k) Gouridas Natnasudra , (1908) 36 C. 659. See also Johan , (1916) P. L. R.
109 of 1910.

(l) Haq Dad, (1925) 6 L. 392.

(in) Gourishanker, (1918) 40 A. 360.

a Per Broadway, J., in Waryan Singh, (1922) 3 Lah. L. J. 589 : 071. C. 817.

. J. 405 : A. I. R. (1922) L. 394 (2).

(o) Nilmoney Fodder, (1889) 16 C. 442 (F. B.), approving Ram Pvotab, 6 A. 121
overruling Lokenath Sarker , 11 C. 349, followed in Keamuddi Karikar, (1923) 51 C. 79:
28 C. W. N. 347. See Kapil Mandal v. Rabbani, (1925) 41 C. L. J. 471.

604

THfc INDIAN PEfcAl CODfe

f CHAP. XVl

rioting the common object of which was causing hurt to two particular men and
four accused persons were also charged and convicted of respectively causing hurt
during the riot to two men and a woman and were sentenced to separate terms of
imprisonment and the Calcutta High Court held that separate sentences were legal (p).

A Full Bench of the Madras High Court has differed from the Calcutta Full
Bench Case of Nilmony Poddar and has held that a conviction under S». 326 and
149 are not necessarily bad (q), but Nilmoney Poddar s case (o) which was fol-
lowed in Keamuddi Karikar s case (r) while distinguished in Piru Rama's case ($)
has been followed in Bajo Singh's case (t) and is still good law.

326. Whoever, except in the case provided for by section
335, voluntarily causes grievous hurt by
means of any instrument for shooting, stab-
bing or cutting, or any instrument which,
used as a weapon of offence, is likely to cause
death, or by means of fire or any heated substance, or by means of
any poison or any corrosive substance, or by means of any explosive
substance, or by means of any substance which it is deleterious to
the human body to inhale, to swallow, or to receive into the blcod,
or by means of any animal, shall be punished with transportation
for life or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

Voluntarily— s. 39. Grievous hurt— s. 320.

Voluntarily causing
grievous hurt by dan-
gerous weapons or
means.

Applicability of the section : — This section can only apply to a person who
does a substantive act himself, namely, inflicts a blow which causes grievous
hurt (u).

Procedure Cognizable-Summons— Not bailable — Not compoundable—

Triable by Court of Session, Presidency Magistrate or Magistiate of the first class.

Where the accused was tried by a Presidency Magistrate on a charge of
voluntarily causing grievous hurt with an instrument for cutting and he was
convicted and sentenced under this section to rigorous imprisonment for two years
and the Local Government preferred an appeal for enhancement of sentence, the
Bombay High Court held that the Presidency Magistrate ought to have committed
the accused for trial to the High Court (v).

Sentence The amount of punishment for cutting off a wife’s nose for
intriguing with another man, depends on the time of the commission of the
grievous hurt, whether at the instant or long after the husband found himself
dishonoured (w). See also commentary on s. 71, supra.

Charge : — Where the accused were charged under Ss. 148, 304, 149 and 326,
149, and the Jury found them guilty under this section, it was held that
there being no charge under this section independently, there could be no verdict

(p) In the matter of Mohor Mir and Kali Roy, (1889) 16 C. 726, following Ram
Sarup, 7 A. 757 referred to in 19 C. 105 (110) ; 40 C. 511 (513).

(q) Muthumalu Goundan, (1924) 47 M. 746 (F. B.).

(r) 51 C. 79, followed in Kitabdi, (1930) 35 C. W. N. 184 and Harendra Barman
(1930) 35 C. W. N. 345.

(s) 49 B. 916: 27 Bom. L. R. 1371,

(t) 8 P. 274.

(u) * Ram Sarup Rai, (1901) 6 C. W. N. 98.

- (v) Abdul Rahiman, (1891) 16 B. 580.

(w) Salamat Russooa, (1865) 4 W. R. (Cr.) 17.

SEC. 327 ] OFFENCES AFFECTING THE HUMAN BODY 605

given upon it (x). Where the accused persons were charged and convicted by a
Magistrate under Ss. 326-149, but on appeal the Judge altered the conviction to one
under Ss. 326-34, held that the conviction was not bad by reason of the absence of
a specific charge under the latter section (y). The offence under this section is
not a minor offence, nor is it an offence involved in the offence under s. 304 coupled
with s. 149 (z).

Where the only abetment with which the petitioner was charged was his being
present at the occurrence, held , the conviction under this section read with s. 1 14
was illegal (a).

A person, who voluntarily inflicts injury such as to endanger life, must always,
except in the most extraordinary and exceptional circumstances, be taken to know
that he is likely to cause death. If the victim is actually killed, the conviction
in such cases ought ordinarily to be of the offence of culpable homicide (b).

The High Court is empowered on a reference under s. 307, Criminal Procedure
Code, to convict the accused of an offence under this section (c).

Form of charge : — The same as for s. 324, substituting the words ‘ grievous
hurt * for * hurt * and # s. 326 * for * s. 324 \

Grievous hurt by dangerous weapons or means Where the accused
armed with deadly weapons commited house-breaking by night with intent to
commit theft and on an alarm being raised, he ran away and in the court-yard
at the time of making his escape, he stabbed a person who tried to apprehend him,
it was held that as the accused had stabbed after the house-breaking was complete
he could not be convicted under s. 460, but he could be convicted under Ss. 457,

458 and 326 (d).

R struck G three blows with a lathi — one blow fractured the bones of the left
forearm, another fractured a bone in the right hand, while the third fractured both
bones of the left leg. In the case of the third injury, gangrene supervened and G
died in consequence. It was held that the order under s. 302 should be set aside
and R was found guilty of eithe.' culpable homicide not amounting to murder under
s. 304, or causing grievous hurt under s. 325 and R was sentenced to rigorous
imprisonment for seven years (e).

Where the accused intended to cause specific bodily injury and there was an
absence of any evidence to indicate that the blow was on a more vital part, it was
held that although the wounds actually caused death the accused could not be con~
victed under s. 300, but he was held guilty under this section (f).

327* Whoever voluntarily causes hurt for the purpose

Voluntarily causing * ^ * * * I#* r

hurt to exort property, person interested m the sufferer, any pro-
megai adt onstrain to a ” P ert y or valuable security, or of constraining

the sufferer or any person interested in such
sufferer to do anything which is illegal or which may facilitate the

(x) Adabala, (1912) 37 M. 237 ; Anga Valayan, (1899) 22 M. 15 ; Krishna, (1901)
24 M. 047 ; Pattikadam, (1900) 20 M. 243.

(y) Bhondu Das, (1928) 7 P. 758.

(*) Ramsarup Rat, (1901) 6 C. W. N. 98.

(a) In re. Viyaiaranga Naidu, (1927) 53 M. L. J. 700.

(b) Mana Gendal, (1930) 32‘Bom. L. R. 1143 : A. I. R. (1930) Bom, 483, following
Bat Jtba, (1917) 18 Cr. L. J. 1010 : 42 I. C. 764.

(c) Madan Mandat, (1913) 41 C. 002.

(d) Sedrasul, (19f0) P. R. No. 27 of 1910.

(e) Rama Singh, (1920) 42 A. 302. *

(f) Ram Asre, (1922) 9 O, L, J. 490. «

606

THE INDIAN PENAL CODE

[CHAP, XVI

commission of an offence, shall be punished with imprisonment
of either description for a term which may extend to ten years,
and shall also be liable to fine.

Voluntarily— s. 39. Huit— s. 319. Valuable security— s. 30.

Illegal— s. 44. Offence— s. 40.

Procedure Cognizable — Warrant — Not bailable — Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class (g).

Charge:— I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at ,

voluntarily caused hurt to XY for the purpose of extorting from

the s>aid XY {or from a certain person interest ’d in the said XY to wit )

a certain property, to wit and thereby committed an offence punishable

under s. 327 of the Indian Penal Code, and within my cognizance or the cogni-
zance of the Court of Session (or the High Couri).

And I hereby direct that you be tied [ by the said Couit (in cases tried by
Magistrate , omit these words ) ] on the said charge.

328. Whoever administers to or causes to be taken by any

Causin hurt bv P erson ' an y P°i son or an Y stupefying, intoxi-
means Sm o g f poison, etc:, eating or unwholesome drug, or other thing

anotoce 111 t0 commit w *tfi intent to cause hurt to such person,
121 ° eB ' or with intent to commit or to facilitate the

commission of an offence or knowing it to be likely that he will
thereby cause hurt, shall be punished with imprisonment of
either description for a term which may extend to ten years, and
shall also be liable to fine.

Hurt — s. 319. Offence — s. 40.

Procedure : — Cognizable — Warrant--Not c bailable— Not compoundable —
Triable by Court of Session.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

administered to XY (or caused to be taken by XY) any poison (or any stupefying,

intoxicating or unwholesome drug) to wit , with intent to cause hurt

to the said XY , (or with intent to commit or to facilitate the commission of the

offence of upon the said XY or knowing it to be likely that you will

thereby cause hurt to the said XY), and thereby committed an offence punishable
under s. 328 of the Indian Penal Code, and within the cognizance of the Court of
Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Causing hurt by means of poison, etc., in order to commit an offence?—
Where the accused, a boy aged about 16 years, became infatuated with a girl and sent
through another boy 5 peras one of which contained dhatura in order that they
might be given to the girl and other members of her family, and the messenger did
deliver the peras with the result that the girl was in a state of delirium and the other
members of her family who also took the peras showed symptoms of poisoning,

- - - - - - — •

(g) These words were substituted for Court of Session ” by Criminal Procedure
Amendment Act XVIII of 1923.

SEC. 329 ] OFFENCES AFFECTING THE HUMAN BODY 607

it was held that the accused was guilty of an offence under this section (h). Wheie,
for the purpose of facilitating robbeiy, dhatura was administered by two persons
to certain travellers in consequence of which one of the travellers died and others
weie made seiiously ill, the Allahabad High Court held that in respect of the traveller
who died, the offence committed was that punishable under s. 325 and in respect
of the travellers who did not die, the offence committed was that defined by this
section (i). Where the dhatura was administered in such a quantity that the
person to whom it was given died, it was held that the offence was one under
s. 302 (j). Where a person (accused) pjaced in his toddy pots juice of the milk-bush,
knowing that if taken by a human being it would cause injury, with the intention
of detecting an unknown thief, but the toddy was drunk by and caused injury to
certain soldiers who purchased it from an unknown vendor the Bombay High Court
held that the accused was rightly convicted under this section (k).

* or other thing *: — The words ‘ or other thing ’ in this section must be
referred to the preceding words and be taken to mean 1 unwholesome or other
thing * and not other thing simply (I).

* with intent to cause hurt to such person or with intent to commit
or to facilitate the commission of an offence ’ To convict under this section
there must be not merely an administration of a drug, but the intention specified
in the section (m).

Where A, a boy of about 16 years of age, being infatuated with a girl some 3
or 4 years younger and intending to administer to her something in the nature of a
love philtre, induced a boy B, aged 1 2 years, to take five peras , one of which is said
to have contained dhatura for the girl, and members of her family who ate the
sweets suffered more or less from symptoms of dhatura poisoning but none died,
there was no evidence to show that B knew that the peras contained anything
harmful, held , A was not guilty under s. 328 ac there was really no intention on
his part to cause hurt to any person but that he was guilty under s. 319 (n).

329. Whoever voluntarily causes grievous hurt fcr the
purpose of extorting from the sufferer or
grievous hurt to extort rrom any person interested m the sufferer
property or to constrain an y property or valuable security, or of

constraining the sufferer or any person
interested in such sufferer to do anything that is illegal or which
may facilitate the commission of an offence, shall be punished
with transportation for life, or imprisonment of either description
for a term which may extend to ten years, and shall also be liable to
fine.

Grievous hurt — s. 320. Valuable security — s. 30.

Illegal— s. 44. Offence— s. 40.

This section is the same as s. 327, supra, with this difference that the ‘ hurt *
mentioned here is ‘grievous hurt.'

(h) Ants Beg, (1923) 40 A. 77 : 21 A. L. J. 844 : A. I. R. (1924) All. 215.

(i) Bhagwan Din, (1908) 30 A. 568.

(j) Gutali, (1908) 31 A. 148.

(k) Dhania Doji, (1808) 5 B. H. C. R. (Cr. C.) 59.

(l) Jotee Ghorace, (1808) I W. R. (Cr.) 7.

(m) Muruga Goundan, 25 I. C. 351 : 15 Cr. L. J. 599 (M).

(n) Anis Beg, (1923) 40 A. 77 : 21 A. L. J. 844.

608 THE INDIAN PENAL CODE [CHAP. XVI

Procedure ; — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge— the same as for $. 327, only substitute ' grievous hurt ’ for ‘ hurt.’

330 . Whoever voluntarily causes hurt, for the purpose of

Voluntarily «ami„* ( rom , ‘he sufferer or any person

grievous hurt to extort interested in the sufferer, any confession or
confession or to compel an y information which may lead to the

detection of an offence or misconduct, or for
the purpose of constraining the sufferer or any person interested
in the sufferer to restore or to cause the restoration of any property
or valuable security or to satisfy any claim or demand, or to give
information which may lead to the restoration of any property
or valuable security, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall
also be liable to fine.

Illustrations,

(a) A, a police-officer, tortures Z in order to induce Z to confess that he committed
a crime. A is guilty of an offence under this section.

(b) A, a police-officer, tortures B to induce him to point out where certain stolen
property is deposited. A is guilty of an offence under this section.

(c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears
of revenue due from Z. A is guilty of an offence under this section.

(d) A, zamindar, tortures a raiyat in order to compel him to pay his rent.
A is guilty of an offence under this section.

Voluntarily*— s. 39. Offence — s. 40. Valuable security— s. 30.

Constraining — s. 327. Person^ interested in the sufferer— s. 327.

This section is primarily directed against the police who voluntarily cause
hurt to extort confession, but the section being generally worded is not confined
to the police.

Scopes— The offence which this section intended to describe is that of
inducing a person by hurt to make a statement or a confession having reference
to an offence or misconduct ; and whether that offence or misconduct had been
committed is wholly immaterial (o).

Procedure Cognizable — Warrant— Bailable — Not compoundable— Triable
by Court of Session.

Charge s — I (name and office of Magistrate, etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the j day of , at ,

voluntarily caused hurt to XY (sufferer s name) for the purpose of extorting from
him (or from a certain person interested in the said XY, namely AB) a confession
(or information) which may lead to the detection of an offence, namely, the offence
of — (or to the detection of misconduct) or for the purpose of con-

(o) Nimchand Mukerjee , (1873) 20 W. R. (Cr.) 41 (44). *

SEC. 331 ] OFFENCES AFFECTING THE HUMAN BODY 600

straining the said XY (or AB} to restore (or cause the restoration of any property
or valuable security) or to satisfy any claim or demand, or to give information which

may lead to the restoration of any property or valuable security, namely ,

and thereby committed an offence punishable under s. 330 of the Indian Penal Code,
and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Voluntarily causing hurt to extort confession or to compel res**
toration of property : — This section requires that the assault should be proved
to be solely for the purpose of extorting confession or restoration of property (p).
To bring a case under this section, it must be proved that the hurt to the com-
plainant was caused with intent to extort a confession of some offence or misconduct
punishable under the Indian Penal Code. This section does not apply to a case
where the confession extorted has reference to a charge of witchcraft (q).

A policeman, who stands by acquiescing in an assault on a prisoner com-
mitted by another policeman for the purpose of extorting a confession, is guilty of
abetment of an offence under this section (r).

Instigation — what amounts to : — Where the applicant expressed approval
of the conduct of certain persons who were maltreating a tenant for committing
extortion and as a result of his suggestion that ‘ the tenants ought to be beaten,*
blows were inflicted, held that the applicant's remarks stimulated the commission
of an offence and, therefore, his conviction undei this section read with s. 1 14 was
a proper conviction (s).

* demand 9 A demand under this section apparently refers to some demand
in respect of property (t).

Voluntarily causing
grievous hurt to extort
confession or to compel
restoration of property.

331. Whoever voluntarily causes grievous hurt for the
purpose of extorting from the sufferer or
any person interested in the sufferer, any
confession or any information which may lead
to the detection of an offence or misconduct,
or for the purpose of constraining the sufferer
or any person interested in the sufferer to restore or to cause the
restoration of any property or valuable security, or to satisfy any
claim or demand, or to give information which may lead to the
restoration of any property or valuable security, shall be punished
with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

This section is the same as the preceding section excepting that the * hurt ‘
caused is grievous.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable—**
Triable by Court of Session.

Charge — is same as under the preceding section substituting only 4 grievous
hurt * for * hurt.*

* demand 9 : — Under this section the demand must be with respect to property.
Consequently, the extortion of a promise to restore an abducted woman is not
an offence under this section (u).

(P)

(q)

M

(3)

w

(U

I* 16

Satya Davaswami, (1018) 5 Pat. L. W. 109 : 10 Cr. L. J. 749 : 46 I. C. 626.
Baboo Moondu, (1870) 13 W. R. (Cr.) 23.

LatifKhan, (1805) 20 B. 394.

Na/ir Ahmad. (1026) 25 A. L. J. 140.

Ella Boy an, (1887) 11 M. 257.

Mania Baksh, 5 L. L. J. 375 ; 73 1. C. 272 : 24 Cr. L. J. 576 : A. I. R. (1924)

45

«I0

THE INDTAN PENAL CODE

[CHAP. XVI

Torture by Police for extorting confession if if results in death does not consti-
tute an offence of murder, but it is an offence under this section (v).

332 . Whoever voluntarily causes hurt to any person being a
Voluntarily causing public servant in the discharge ^of his duty
hurt to deter public ser- as such public servant, or with intent to
vant from lus duty. prevent or deter that person or any other
public servant from discharging his duty as such public servant,
or in consequence of anything done or attempted to be done by
that person in the lawful discharge of his duty as such public
servant, sftiall be punished with imprisonment of either descrip-
tion for a term which may extend to three years, or with fine, or
with bo|h.

Voluntarily— s. 39. Causing hurt— s. 319.

Public servant — s. 21.

This section is almost identical with the provisions of section 353, infra , with
this difference that this section contemplates ‘ causing hurt to public servant *
whereas the latter section contemplates * assault.’

Scope : — S. 332 or s. 323 requires as an ingredient of the offence the pre-
sence of an intention on the part of the accused persons, namely, to prevent or deter
a public servant from discharging his duty (w).

Procedure r— Cognizable — Warrant — Bailable —Not compoundable — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Separate sentences — under this section and s. 147 are not illegal (x).

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you on or about the day of ,

at , voluntarily caused hurt to XY ; a public servant

in the discharge of his duties as such public servant with intent to prevent (or
deter) that person or any other public servant from discharging his duties as such
public servant (or in consequence of anything done or attempted to be done by that
person in the lawful discharge of his duty as such public servant) and thereby com-
mitted an offence punishable under s. 332 of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the
said charge.

Voluntarily causing hurt to a public servant in the discharge of his duty
as a public servant s— Although a police constable may not be bound, in the
execution of his duty, to assist the occupier of a house in putting out an intruder,
yet he may lawfully do so, and if he sustains violence in so doing, the party inflicting
such violence, though he may not be indictable for assaulting a police constable in
the execution of his duty, will be liable to a conviction for an assault, as he cannot
justify resistance to the force lawfully used to eject him (y). This case was followed
by the Allahabad High Court in the case of Dalip (z) where it was further held that
s. 99, supra, applied inasmuch as the police officers were acting in good faith under

(v) Miran Baksh , (1917) 12 P. W. R. (1917) : 18 Cr. L. J. 710 : 40 I. C. 710.

(w) Kishen Lai , (1924) 22 A. L. J. 501 : A. I. R. (1924) All. 645.

(x) Rahman, (1926) 27 Cr. L. J. 824 : A. I. R. (1926) Lah. 621,

(y) Roxburgh, (1871) 12 Cox, Cr. C. 8.

SEC. 332 ]

OFFENCES AFFECTING TIIE HUMAN BODY

611

the colour of their office though not acting in the lawful discharge of their duty
within the meaning of this section and the conviction was altered into one under
Ss. 147 and 323, and the case of Dalip (z) was followed by the same High
Court in the following cases (a). A distrainer having a warrant has no right to
take the front-door of a house, and if he threatens to do so, such a proceeding ren-
ders the house unsafe calling for immediate defence of private property. Further,
if the accused resists such attempts, he cannot be said to have exceeded the right of
self-defence and conviction under this section is liable to be set aside (b).

Where a vaccinator insisted on vaccinating a child in opposition to the wishes
of the. parents or relations who did not exceed their right of private defence in
assaulting him, the Allahabad High Court held that the vaccinator was not acting
in execution of his duty and the accused accordingly could not be convicted under
s. 353 (c).

The pain caused by a blow across the chest with an umbrella was held to be
not of such a trivial character as to come within the meaning of s. 95, but an
offence under this section (d).

If the police-officer attempts to make a search without any search witness being
present, the owner or occupier of the house is justified in resisting the attempt so
far as to exclude him from the house. The owner or occupier is not, however,
justified in using any more force than is necessary for such purpose (e).

In the absence of evidence as to the terms of the warrant either by the pro-
duction of the original or in the form of secondary evidence, a conviction
for resisting or obstructing a public officer in the discharge of his duty cannot
stand (f).

Playing cards in the street is no offence under s. 34 of the Police Act and,
therefore, a constable prohibiting people from doing so cannot be said to be acting
in the discharge of his duty (g).

Wrestling Match*— Arena rushed and police hustled :—While a ve;y
evenly contested wrestling match was going on, one of the constables who had been
invited by the organisers of the show to keep peace and order and who was a backer
of one of the contestants, interfered with the wrestling with the lesult that a scuffle
followed in which some of the policemen were hustled and their uniform torn,
held that the accused was technically guilty of an offence under this section (h).

Illegal Warrant : — When the authority under which the police attempted to
make the search was invalid, persons resisting them would not be convicted under
this section, although his act may come under other sections of the Code (i).
Where a person is arrested not really under a warrant, the mere fact that a wariant
had been issued for his arrest, which warrant had been executed against others who

(z) (1896) 18 A. 246, following 12 Cox. 8.

(a) Muhtar Ahmed (1916) 37 A. 363 : 13 A. L. J. 439 : 16 Cr. L. J. 496 : 39
I. C. 336 ; Madho, (1917) 40 A. 28 : 16 A. L. J. 813 : 19 Cr. L. J. 6 : 42 1. C. 917 ;
see Raman Singh, (1900) 28 C. 411.

(b) Madari Saheb, (1930) M. W. N. 172 : 68 M. L. J. 193 : A. I. R. (1930) Mad.
430 (1), following Shaikh Ibrahim, (1890) 13 M. 618.

(c) Bahai, (1906) 3 A. L. J. 327, following Mangovind Muchi, (1899) 3 C. W. N.

627.

(d) Sheo Golam Lalla, (1875) 24 W. R. (Cr.) 67.

(e) Nirmal Singh, (1919) 42 A. 67 : 17 A. L. J. 1047 : 62 I. C. 063 : 20 Cr. L. J.

69 6.

(f) Chandra Coomar Sen, (1899) 3 C. W. N. 606, distinguished in Nowrangi Singh,
6 C. W. N. 136.

(g) Mulchand, (1926) 27 P. L. R. 74 : 92 I. C. 869: A. I. R. (1926) Lah. 260.

(h) Miran, (1926) 28 A. L. J. 1027.

(i) Bripkbhan Singh , (1916) 38 A. 14 : 13 A. L. J. 979 : 31 I. C. 996 : 16 Cr. L. J.

819 .

612

THE INDIAN PENAL CODE

[ CHAP. XVI

have since been convicted, is hardly sufficient (or his conviction under this section (j).
Where the wan ant is not shown to the person arrested nor are the contents of the
warrant notified to him, before or at the time of the arrest, held, there is no lawful
arrest and the conviction and sentence under Ss. 353 and 225 were set aside (k).
The same view was held in Satish Chandra Rat v. Jadmandan Singh (1), a case
under s. 225.

Whether persons other than public servants can come in under
this section ' The Madras High Court has held that a police-officer is
justified in making an arrest under $. 54 of the Ciiminal Procedure Code of a
person suspected to have committed a cognizable offence although the warrant had
not been entrusted to him and a person obstructing and beating such officer is
guilty under this section and s. 225 (m).

Knowledge of complainant being a public servant is necessary to constitute
an offence under this section (n).

Persons other than public servants who may accompany them for aid cannot
get the same protection as is afforded to public servants (o).

This section has no operation when the property is the private property of the
officials and where the officials are protecting their piopeity in their private capa-
city (p).

Want of good faith : — Where a Sub- Inspector of Salt and Abkari attempted
without a search warrant to enter a house in search of property and was obstructed
and resisted, the Madras High Court held that the persons obstructing and resisting
could not set up the illegality of the officer’s proceeding as a justification of their
obstruction as it was not shown that that officer was acting otherwise than in good
faith and without malice (q). Where a Commissioner attempted to give possession
under a time expired warrant, it was held, in a case under Ss. 147 and 353, that the
accused could not be convicted (r).

333. Whoever voluntarily causes grievous hurt to any person

Voluntarily causing ^eing a public servant in the discharge of his
grievous hurt to deter duty as such public servant, or with intent
duty C servant from his to prevent or deter that person or any other
public servant from discharging his duty as
such public servant, or in consequence of anything done or
attempted to be done by that person in the lawful discharge of his
duty as such public servant, shall be punished with imprisonment
of either description for a term which may extend to ten years,
and shall also be liable to fine.

This section deals with the same offence as under the preceding section with
this difference that this section prescribes a severer sentence as the ' hurt * caused
is 4 grievous.’

(j) Abdool Karim, (1905) 4 C. L. J. 92.

(k) In the matter of Rajani Kanto Pal , (1901) 5 C. W. N. 843.

(l) (1890) 26 C. 748.

(m) Ratana Mudali, (1916) 40 M. 1028.

(n) Kishen Lai, (1924) 22 A. L. J. 501 : A. I. R, (1924) All. 045.

(o) Akbar Momin , (1901) 6 C. W. N. 202.

(p) Hardit Singh, (1911) P.L.R. No. 161 of 1911 : 12Cr. L. J. 286 : 10 I. C. 278:
53 P. W. R. (1911).

(q) Pokot Kotu, (1890) 19 M. 349, followed in PoomaJLal Udayan, (1898) 21 M.
296 ; Doorasami Pillai, (1903) 27 M. 52 ; Jagannath Mandatha, (1896) 1 C. W. N. 233; *
Narain, 7 N. W. P. H. C. R. 209.

(r) Abinasfy Chandra Aditya v. A nnada Charan Pal , (1904) 31 C. 424.

SEC. 334 ] OFFENCES AFFECTING THE HUMAN BODY 6l3

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —

Triable by Court of Session.

Charge— is the same as under s. 332, substituting ‘ grievous hurt ’ for * hurt.*

Voluntarily causing grievous hurt to a public servant to deter him
from his duty : — A constable, pursuing a numbei of rioters in order to arrest them
after the riot was over, fired upon them whereupon some of them turned round and
caused him serious injury in order to snatch away his gun and was convicted under
this section. The Lahore High Court held that the act of the accused did not con**
stitute an offence under this section ($).

To make out an offence under s. 333-34, it must be shown that the actual
rescuers and the person causing hurt were acting together in pursuance of a
common intention (t).

Resistance to unauthorised search is justified A person who resists a
police-officer conducting an unauthorised search outside the limits of his station
is not guilty of an offence under this section (u).

334. Whoever voluntarily causes hurt on grave and sudden
% provocation, if he neither intends nor knows

hurt 0 on%roTOcati C on Usn18 Himself to be likely to cause hurt to any
person other than the person who gave the
provocation, shall be punished with imprisonment of either des-
cription for a term which may extend to one month, or with fine
which may extend to five hundred rupees, or with both.

This section has been referred to in Ss. 323 and 324, supra , as a proviso to
those sections.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by any Magistrate — Triable summarily.

Burden of proof on the accused When the accused sets up the plea that
he voluntarily caused hurt on grave and sudden provocation and he neither intended
nor knew himself to be likely to cause # hurt to any person other than the person who
gave the provocation, the burden is on him to prove the plea.

Charge 2 — Where hurt is caused on grave and sudden provocation, the charge
should be framed under this section and not under s. 324 (v).

Form of charge : — The charge (if necessary) should run as follows : —

I (name and office of Magistrate , etc.) hereby charge you (name of accused)
as follows : —

That you, on or about the “day of , at ,

voluntarily caused grievous hurt to XY (or if the person hurt is another, say on grave
and sudden provocation caused by AB) and did not intend to (nor knew it to be
likely that you would thereby) cause hurt to XY and thereby committed an offence
punishable under s. 334 of the Indian Penal Code and within my cognizance.

And I direct that you be tried on the said charge.

Grave and sudden provocation The use of the abusive word * bugger*
to a person of the Bhaduwy or gentleman class may constitute a grave and sudden
provocation. There is no right of private defence where the apprehension of danger

(s) Khanun, (1922) 71 I. C. 605 : 24 Cr. L. J. 201 : A. J. R. (1922) Lah. 75 (2).

(t I*# 16 ) 14 A. L. J. 787 : 17 Cr. L. J. 529 : 36 I. C. 577.

(u) In re . Krishna Ayyar , (1918) 24 M. L. T. 90 : (1918) M. W. N. 526: 20
Cr. L. J. 145 : 49 I. C. 33l

(v) Bhah Chula, (1863) 1 Bom. H. C. R. (Cr. C.) 17.

614

THE INDIAN PENAL CODE

[CHAfc. XVI

to the body ceases. An ordinary walking stick (four feet long and one inch thick)
is not a dangerous weapon (w).

335. Whoever [voluntarily] caused grievous hurt on
Voluntarily causing grave and sudden provocation, if he neither
grievous hurt on pro- intends nor knows himself to be likely to
\i»eiumn, cause grievous hurt to any person other

than any person who gave the provocation, shall be punished
with imprisonment of either description for a term which may
extend to four years, or with fine which may extend to two
thousand rupees, or with both.

Explanation . — The last two sections are subject to the same
provisos as Exception 1 , section 300.

This section is referred to in Ss. 325 and 326 as a mitigating circumstance and
therefore acts as a proviso to those sections.

This section uses the same words as the preceding section with this difference
that the ‘ hurt * contemplated here is ‘ grievous.’

Legislative changes s— The word ‘ voluntarily ’ was inserted by the Indian
Penal Code Amendment Act 1882 (VIII of 1882), s. 8.

Procedure : — Cognizable — Summons Bailable Compoundable, when

permission is given by the Court before which a prosecution is pending— Triable
by Court of Session, Presidency Magistrate or Magistrate of the first or second
class.

Burden of Proof: — The onus lies on the accused to prove grave and sudden
provocation as under s. 334.

Charge— same as under s. 334 substituting ‘grievous hurt * for ‘ hurt ’ and
add ‘ within the cognizance of the Court of Session or the High Court.’

Grievous hurt on grave and suddeir provocation , See notes under,
s. 300, supra, under provocation.

A person who, by a single blow with a deadly weapon, kills another, entering
at dead of night into a dark room where he and his wire were sleeping separately,
for the purpose of having criminal intercourse with her, was held guilty of causing
grievous hurt on a grave and sudden provocation (x). The provocation and its
effects must be sudden as well as grave (y).

The mere fact that the constables were not armed with a warrant of arrest and
that they were not in uniforms does not exonerate the accused from being found
guilty undei this section (z).

336. Whoever does any act so rashly or negligently as to
Act endangering life endanger human life or the personal safety
or personal safety of of others, shall be punished with imprison>
others ‘ ment of either description for a term which

(w) Banku Behari, 14 Cr. L. J. 442 (Cal.) : 20 I. C. 602.

(x) Chultundee Paramanich , (1865) 3 W. R. (Cr.) 55.

(y) Bechoo Saout, (1873) 19 W. R. 35 ; Bhagwan Chaggan , (1914) 17 Bom. L. R.
68 : 27 I. C. 552 ; 16 Cr. L. J. 168.

(z) Mahadeo Rat, 21 A. L. J. 791 : 26 Cr. L. J. 652?: 81 1. C. 140 : A. I. R* 4
(1924) All. 205.

SEC. 336] OFFENCES AFFECTING THE HUMAN BODY 6l6

may extend to three months, or with fine which may extend to two
hundred and fifty rupees, or with both.

Act — 8. 32. Rash or negligently— s. 304-A.

This section punishes a rash and negligent act endangeiing human life or the
personal safety of others. Such act is a public nuisance dealt with under Chapter
XIV of the Code. This and the following two sections (337 and 338) punish such
acts as aie not covered by the provisions of Chapter XIV and when the act
results in death the offence is dealt with under s. 304-A, supra .

In order to determine whether an act was done rashly or negligently within
the meaning of this section, no distinction ought to be drawn between the act
itself and the instrument with which it was done (a).

Procedure: — Cognizable — Summons —Bailable— Not compoundable — T riable
by any Magistrate — Triable summarily.

The case of an accident to a motor car done to the negligent and reckless driv-
ing of another motor car ought to be tried within a week (b).

Act endangering life or personal safety of others:— In the leading case
on the subject , the Madras High Court held : “ Culpable rashness is acting with the
consciousness that the mischievous and illegal consequences may follow, but with
the hope that they will not, and often with the belief that the actoi has taken suffi-
cient precautions to prevent their happening. The imputability arises from acting
despite the consciousness (luxuria). Culpable negligence is acting without the
consciousness that the illegal and mischievous effect will follow, but in circum-
stances which show that the actor has not exercised the caution incumbent upon
him and that if he had, he would have had the consciousness. The imputability
arises from the neglect of the civic duty of circumspection. It is manifest that
persona] injury, consciously and intentionally caused, cannot fall within either
of these categories, which are wholly inapplicable to the case of an act or scries of
acts themselves intended which are the direct producers of death. To say that
because, in the opinion of the operator, the sufferer could have borne a little more
without death following, the act amounts merely to rashness because he has carried
the experiment too far, results from an obvious and dangerous misconception ” (c).

It is not the act but the manner of doing it that is made punishable by this
section. The act may itself be perfectly lawful, as the throwing of stones over the
roof of a man’s house, but when it is done rashly or negligently it amounts to a cri-
minal offence (c 1 ). But if a person intentionally thiows stones at or on a house under
such circumstances that although he does not intend to cause hurt and does not in
fact cause huit, he yet must know that he is likely to cause hurt, he commits an
offence punishable under this section (d). So the manager of a temple who had
in a car festival driven a car out of repair and which endangered the lives of those
who attended the procession was held guilty under this section (d 1 )* An engine-driver
who was taking an engine which was letting off steam along a public thoroughfare
at a time when the traffic was exceptionally heavy was held guilty under this sec-
tion (e). Where the accused, a taxi-driver, who had defective eye-sight at the
time he took out his license, one night diove his taxi-cab without wearing spectacles,

(a) In re, Thippava Gondi, (1890) 1 Weir 337.

(b) Sirajuddin Kazi v. Seargent H. Jenner , A. I. R. (1929) Cal. 776.

(c) Nidamarti Nagabhusanam , (1872) 7 M. H. C. R. 119 and Idu Bcg t 3 A. 776,
followed in Smith , 53 C. 333.

(cl) Nga Thaku, (1879) P. J. L. B. 91.

(d) Myat Thin , (1808) P. J. L. B. 426.

(dl) Thippana, (1890) 1 Weir 337 ; Nar Singh t (1914) 18 C. W. N. 1176: 27 I. C.
196: 10 Cr. L. J. 131.

(e) George Loveday, (1886) 1 Weir 337.

6i6 TttE INDIAN PENAL CODE [ CHAP. XVI

when his car collided with another car, but it appeared that he was not liable for the
accident, it was held that it was not made out that the accused if he drove the car
without spectacles he would be acting rashly or negligently and the High Court
set aside the conviction under this section (0* When the petitioner, a Sebait of ft
temple in the district of Cuttack, on the Astami day when a large influx of pilgrims
every year visit the shrine, had placed a light on or near the one foot parapet of a
well situated close by the gate and between 1 and 2 a.m. removed the light when
a boy met with an accident, held , he was guilty under this section (g).

This section should not be applied wheie the facts constitute a graver offence.
Where the accused had a quarrel with his debtor over non-discharge of a loan and
pelted brickbats at his house knowing that there were occupants in it and hurt one
of them who was under medical treatment for ten days, it was held that the accused
should be convicted under s. 323 and not under this section as the hurt caused was
the natural and probable consequence of his act (h).

9 rashly or negligently * A rash act is primarily an over-hasty act and is
opposed to a deliberate act. Even if it is partly deliberate, it is done without due
thought and caution (i). Where a pujari of a temple left the temple at night and
from outside deliberately threw bricks at it, hoping that the Hindus of the locality
would believe that the bricks came from the Muhammedan quarters, and that
this would lead to a riot between two communities, held , the offence did not come
either within the purview of this section or s. 1 53 but the act was a deliberate one (j).

337. Whoever causes hurt to any person by doiing any act
Causing hurt by act so rashly or negligently as to endanger human
endangering Hie or per- life, or the personal safety of others, shall be
sonal safety of others. punis h ed wjth i mpr i S( > nrn ent of either

description for a term which may extend to six months, or with
fine which may extend to five hundred rupees, or with both.

The Authors of the Code observe : *' Hurt may be caused involuntarily and
yet culpably. There may have been no design to cause huit, no expectation that
hurt would be caused, yet there may have been a want of due care not to cause
hurt” (k).

Procedure : — Cognizable Summons Bailable Compoundable when

permission i* given by the Court before which a prosecution is pending — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby chaige you ( name
of accused) as follows : —

That you, on or about the day of — , at ,

caused hurt to XY by doing any act, to wit so rashly or

negligently as to endanger human life or the personal safety of others and thereby
committed an offence punishable under s. 337 of the Indian Penal Code and
within my cognizance.

And I hereby direct that you be tried on the said charge.

Causing hurt by act endangering life or personal safety of others

Where the accused got a potion from the second accused her lover and adminis-

(f) Abas Mina, (1017) 42 B. 396 : 20 Bom. L. R. 376 : 45 I. C. 509 : 19 Cr. L. J.

605.

(g) Narsingh Charan Mahapatra , (1914) 18 C. W. N. 1176.

(h) Maung Po Nyan, 36 I. C. 145: 17 Cr. L. J. 465 (L. B.).

(i) Gaya Prosad, (1929) 51 A. 465 : 27 A. L. J. 165. /

(j) Ibid,

(k) Note M.

017

SEC. 338 ] OFFENCES AFFECTING THE HUMAN BODY

tercd it to her husband to make him less quarrelsome to her, she was held guilty
under this section as she administered the drug without care and caution and
enquiry as to its propeities and the drug caused serious illness to the husband (1).
Where the accused, a Hakim, performed an operation with an ordinary pair of scissors
on the upper lid of the complainant’s right eye and the wound was sutured with an
ordinary thread and the result of the operation was that the complainant lost
partially the sight of her right eye, the accused was convicted under this section (m).

The Allahabad High Court has held that the causing of hurt by negligence in
the use of gun would fall within the purview of this section (n).

Where a guard of a train had directed the train to be separated on an incline,
whereby a portion of the train ran backwards and collided with another train, causing
the death of many of the passengers, O’Brien, J., told the jury that in order to
convict the prisoner they must find him guilty of ‘ gross negligence ’ (o).

338. Whoever causes grievous hurt to any person by doing
any act so rashly or negligently as to en-
danger human life, or the personal safety of
others, shall be punished with imprisonment
of either description for a term which may
extend to two years, or with fine which may extend to one
thousand rupees, or with both.

Causing grievous hurt
by act endangering life
or personal safety of
others.

This section is in the same terms as the last with this difference that the hurt*
contemplated by this section is ‘ grievous hurt.’

Scope 2 — This section requires that an act to be done so rashly or negligently
as to endanger human life or the personal safety of others (p).

Procedure : — Cognizable Summons Bailable Compoundable when

pei mission is given by the Court before which a prosecution is pending— Triable
by Presidency Magistrate, or Magistrate of the first or second class.

Charge: — I (name and office of Magistrate , etc. ) hereby charge you -{name
of accused) as follows : — «

That you, on or about the day of , at ,

caused grievous hurt to XY by doing an act, to wit so rashly or negligently

as to endangei human life or the personal safety of others and thereby committed
an offence punishable under s. 338 of the Indian Penal Code, and within my cog-
nizance.

And I hereby direct that you be tried on the said charge.

Causing grievous hurt by act endangering life or personal safety of
others : — Where accused owning a paddy field in a jungle tract, discharged a gun
in the direction of the foot-path close to his field through which the complainant
was passing and the shot hit the complainant in the leg, which had to be cut off,
held, the accused was guilty under this section (q). Where in course of a riot the
accused gave blows one of which fell on the temple of the deceased of which he

(l) Bhagava Giriappa , (1916) 19 Bom. L. R. 54 : 38 I. C. 1003 : lft Cr. L. J. 443,
following P*£a Bewa, (1912) 39 C. 855 : 15C.L. J.512: 16C.W.N, 1055 : 13 Cr. L. J..
195; Bamava Chanappa, (1915) 17 Bom. L. R. 217 : 10 Cr. L. J. 305 : 28 I. C. 641.

(m) Gulam Hyder Panjabi, (1915) 39 B. 523 : 17 Bom. L. R. 394 : 29 I. C. 69.

(n) Abdus Sattar, (1906) 28 A. 464.

(o) Elliot, (1889) 10 Cox. C. C. 710.

(P) PuJfk Bekary tyandi, (1028) 32 C. W. N. 612.

(q) CJtandu, 13 Cr. L. J. 703 : 16 I. C. 611, following Nidamarti Nagabhusanam,
(1872) 7 M. H. C. R. 119.

018

THE INDIAN fENAL CODE

[CHAP. XVI

died (out days after, and it was found that the accused had no intention to kill the
deceased, held that the accused was guilty of an offence under this section (r).

Where the accused drove his cart after sun-set without light but drove it
cautiously, shouting as he drove along to the people in front to get out of the way,
but a foot passenger who was deaf and dumb could not hear the shouting and was
knocked down, run over and killed, the Madras High Court held that the question
for the Court was whether there was any evidence that the death of the deceased was
induced by an act negligently and rashly directed by the accused and as there was
no such evidence, quashed the conviction (s). The Bombay High Court, in a case
where a driver allowed his cart to go unattended along a road with the result that it
ran over a boy who was sleeping on the road, held that the accused was guilty under
this section but passed a nominal sentence of a fine of one rupee (t).

The petitioner was driving a motor lorry when a little boy in trying to
cross the road came in contact with the lorry and was run over. It appeared
that the speed was moderate and the petitoiner was driving on the correct side of the
road. It was not proved that the petitioner when called upon to stop could have
swerved the lorry and saved the little boy from injury. The petitioner was
convicted under this section. The High Court set aside the conviction (u).

Sexual intercourse causing grievous hurt to wife : — Where the prisoner,
a fully developed adult, had sexual intercourse with his wife, a girl of 1 1 years and
3 months who had not attained puberty and she died of haemorrhage from a rup-
ture of the vagina due to the intercourse, the prisoner was convicted under this
section, Wilson, J. f told the jury : * Under no system of law with which Courts
have to do in this country, whether Hindu or Mahomedan, or that framed under
British rule has it ever been the law that a husband has the absolute right to enjoy
the person of his wife without regard to the question of safety to her, as for instance,
if the circumstances be such that it is certain death to her, or that it is probably
dangerous to her life* (v). %.

Of Wrongful Restraint and Wrongful Confinement

“ The provision under this head are for the punishment of offences, in which
the offender, although he may have no design against human life, and no intention
to inflict bodily hurt, either wholly deprive the injured person of his freedom, or
in some degree abridges his personal liberty. The personal restraint of confinement
may, hi some cases, be so light as to deserve little more than a nominal punishment ;
but the arbitrary imprisonment of a person which is often a quiet and convenient
mode of prosecuting him, is a most seiious offence, deserving of exemplary
punishment" (w).

Analogous law This section and the next deal with offences which are
termed 4 false imprisonment * in English law.

This section defines 1 wongful restraint * and the next section defines * wrongful
confinement* which is an extension of this section and is only applicable when the
restraint is complete . . -

In other words ‘ wrongful restraint * is obstructing a person from proceeding ’
in any direction in which a person has a legal right to proceed whereas 4 wrongful
confinement ' is Restraining any person wrongfully so as to prevent that person

(r) Pattam, (1911) M. W. N. 188 : 12 Cr. L. J. 528 : 12 I. C. 296.

(s) (1871) 6 M. H. C. R. App. xxxi.

(t) Malkaji, (1884) Rat. Unrep. Cr. C. 198.

(u) Pulin Behary Nandi , (1928) 32 C. W. N. 612.

(v) Huree Mohan Mylki, (1890) 18 C. 49; (in consequence of tjris decision

s. 375, supra, was once amended). ^

(w) Morgan and Macpherson, * Penal Code 1 p. 300. . >

SEC. 339 ] OFFENCES AFFECTING THE HUMAN BODY 619

from proceeding beyond certain circumscribed limits. Thus ‘ wrongful restraint '
is involved in wrongful confinement.

S. 341 prescribes punishment for ' wrongful restraint ’ and s. 342 prescribes
punishment for * wrongful confinement ’ and Ss. 344, 345, 347 and 348 deal with
the offence of ‘ wrongful confinement ’ in an aggravated form whereas s. 346 deals
with ‘ wrongful confinement * committed in secrecy.

339. Whoever voluntarily obstructs any person so as to
... . , . . . prevent that person from proceeding in any

direction in which that person has a right to
proceed, is said wrongfully to restrain that person.

Exception . — The obstruction of a private way over land or
water which a person in good faith believes himself to have a lawful
right to obstruct, is not an offence within the meaning of this
section.

Illustration.

A obstructs a path along which Z has a right to pass, A not believing in good
faith that he has a right to stop the path. Z is thereby prevented from passing.
A wrongfully restrains Z .

Voluntarily— s. 39.

The essential ingredients of the offence under this section are

(a) The accused has voluntaiily obstiucted some peison.

(b) The obstruction is such as to prevent that person from proceeding in any
direction in which such person has a right to proceed.

The only obstruction that is excepted is the obstruction of a private way over
land or water Which a person in good faith believes himself to have a lawful light to
obstruct.

4 voluntarily obstructs * -Where the accused prevented the complainants
from proceeding in a certain diiectfon with their carts, and exacted from them a
sum of money on a false plea, the Calcutta High Court held that the accused were
guilty of wrongful restriant, and not of theft (x).

The slightest unlawful obstruction to the liberty of the subject to go when
and where he likes to go, provided he does so in a lawful manner, cannot be justi-
fied and is punishable as an offence under this section (y).

Restraint must be complete and must not allow a man to proceed in any
direction where he has a right to do so (z).

Where, the accused, who were co-owners of a well, obstructed the tenant of
another co-owner from using the mot to which he had yoked his bullock on the
ground that the complainant’s landlord had not paid her share of the expenses, it
was held that the accused were guilty of an offence of wrongful restraint (a).

4 any person 9 : — The definition under s. 339 requires that the obstruction
should be so complete and successful as to prevent the person obstructed from
proceeding in any direction in which he has a right to proceed (b).

(x) Jowakir Shah v. Giridharee Chaudhery , (1868) 10 VV. R. (Cr.) 35.

(y) Samnanda PiUai t (1882) 1 Weir. 339 (340).

(z) KanrtMla, (1912) 15 Bom. L. R. 103 : 14 Cr. L. J. 177 : 19 I. C. 177.

(a) LahOhu Manaji, (1925) 27 Bom. L. R. 1419.

(b) Rama Lala, (1912) 15 Bom. L. R. 103, followed in Chegan Vithal, (1926)
29 Bom . L.|L 494.

620

THE INDIAN PENAL CODE

(CHAP. xVi

If a horse on which a man is riding is prevented from proceeding, it is causing
wrongful restraint to the rider and it is no defence to say that he might have got off
the horse and walked in the same direction (c). Similarly, in Lahanu Manaji (d),
distinguishing the case of Rama Lall (e), it was held that the co-owners of a well
were guilty of the offence under this section inasmuch as they had obstructed
another co-owner fiom using the mot to which the complainant had yoked his
bullocks in the slope of the well on the giound that he had not paid hi 3 share of the
expenses on the well.

The obstruction must be physical : — A verbal remonstrance against or
prohibition of an act does not amount to wrongful restrain t (e).

Proof of actual physical obstruction is not essential and it was held in a case
where the accused, a police head-constable, detained some persons as suspects for
several days, although those persons were not fettered but they were made to stay
in a circumscribed limit, that the accused was guilty of wrongful confinement (f).

The obstruction must be direct and actual Causing Periahs to stand
in public street in the vicinity of a temple with the object of preventing the com-
plainant from conducting a religious procession from fear or pollution does not
amount to an obstruction within the meaning of this section (g).

The obstruction must be wrongful, i.e., in order to prevent that per**
son from proceeding in any direction in which that person has a right to
proceed s — Where from the unnecessary harshness with which an arrest was
conducted, it was argued that the confinement was wrongful, the Bombay High Court
held • “It is only when there has been an excess by a police-officer of his legal powers
of arrest that it becomes necessary to consider whether he has acted corruptly or
maliciously and with the knowledge that he was acting ‘contrary to law * and the
arrest of the deceased having been strictly legal the accused could not be convicted
under s. 342 (h). Where a Court Peon accompanied by two of the decree-holder’s
men went to execute a warrant of arrest against the judgment-debtor Af, and a
pulki with closed doors was noticed to be coming out of the male apartment of
Af’s house, the petitioners believing that M was effecting his escape in that pulki
stopped it and examined it, although the persons accompanying the pulki protested
and said that there was a lady in it. Admittedly, there was in the pulki a pardanashin
lady of rank. It was held that having regard to the terms of s. 79, a convic-
tion of the petitioners under s. 341 was not right (i). Where a private person
bona fide makes an arrest under s. 59 of the Code of Criminal Procedure, but takes
the prisoner to the magistrate instead of to the nearest police-station, he is protected
from a charge of wrongful confinement by the provisions of s. 79 of the Penal Code.
A bare finding that the accused * must have advised the arrest of the complainant is
not sufficient to support a conviction for abetting the offence of wrongful confine-
ment ’ (j). Where the Chief Constable had no power to arrest the complainant
without a warrant, it was held that he was guilty of the offence of wrongful confine-
ment under s. 342 (k).

(c) In re . Peria Ponnuswami Goundan, (1926) 28 Cr. L. J. 320 : 100 I. C. 544 :
A. I. R. (1927) Mad. 506.

(d) (1925) 27 Bom. L. R. 1419: 27 Cr. L. J. 139: A. I. R. (1926) Bom. 118.

(e) Karati&i Nagatnma, (1882) 1 Weir. 339.

(I) Shamlal, (1902) 4 Bom. L. R. 79.

(g) Venkatasubba Reddy, (1910) M. W. N. 72 : 5 I. C. 851 : 7 M. L. T. 189.

(h) Amatsang , (1885) 10 B. 506.

(i) Kanailal Gowala, (1897) 24 C. 885.

(j) Raghunath Dass , (1920) 5 Pat. L. J. 129 : 21 Cr. L. J. 213 v ^4 I. C. 997 ;
Pramatha Nath Barat v. P. C. Ldhiry, (1920) 47 C. 818 : 22 Cr. L. J. 5> .59 I. C. 37.

(k) In re. Mukund Babu t (1894) 19 B. 72 ; see Gopal Naidu, (1922) 46 M. 606

SEC. 339 ] OFFENCES AFFECTING THE HUMAN BODY 621

Where*4 invited B to His house in order to be ready to give evidence in a
judicial proceeding, A used no physical coercion nor threat of any kind to detain
B in the house, but fl, from a mere general dislike or dread of giving offence to A f
remained there, it was held in reversing a conviction for wrongful restraint, that
the conduct of A did not constitute an offence (1). Where complainant had for the
purpose of removal placed certain goods upon a cart, and accused came and unyoked (l) * * 4
the bullocks, and turned the goods off the cart on the road, and complainant
thereupon went away at once leaving them lying there, it was held that under the
circumstances a conviction under s. 341 could not be sustained (m), but where the
accused had pievented a tenant of his who was holding over from entering the
demised premises, and was convicted of wrongful restraint, the High Court of
Bombay on revision held that the accused wac rightly convicted (n). Where a
prosecution witness was presented as an emigrant at an Emigration Depot and when
he desired to leave the Depot, the accused, a watchman in the employ of the
proprietor of the Emigration Depot prevented him from leaving the depot, it
was held that the accused was guilty of wrongful restraint under s. 341 (o). It
has been held i nChagan Vithal's case (p) that the obstruction to the whitewashing
and repairing of a wall did not amount to an obstruction of the complainant to
proceed in any direction in which he had a right to proceed.

Joint-owner is not punished under this section : — Where the accused,
one of the two joint-owners of a shop, put her lock on the shop which was let out
by the other joint-owner without her consent, and the tenant charged the accused
with the offence of wrongful restraint in that he was prevented by the lock from
entering into the shop, it was held that the accused had committed no offence inas-
much as she had affixed her lock to a house of which ohe was the joint-owner and the
complainant was no tenant of hero (p).

Wrongful restraint is a personal offence s — This section requires that the
obstruction should be so complete and successful as to prevent the person obstructed
from proceeding in any direction in which he has a right to proceed. The wrong
defined by the section is a wrong against the person and is not completed where the
person is at liberty to go in any direction he pleases (q). This case was followed
in a case where it was held that ‘ restraint * to amount to an offence under this
section must be directed to a person and not to anything else (r).

Right of the public to use a public street s — All members of the public
have equal rights in public streets vested in a Municipality and no one member of
the community can interdict another section of it and the petitioner was held to
have been rightly convicted under s. 341 when nevertheless he did so obstruct
another person (s).

Exception : — Bona fide claim : — The voluntary obstruction of any person
from entering upon the land under a bona fide colour of title and possession is not an
offence under s. 341 (t). Mukerji, J., sitting singly, has held in Prannath Kundus

(l) Lakshman Kalyan , (1875) Rat. Unrep. Cr. C. 89.

(m) Joggeswar Das , (1885) 12 C. 55.

(n) Haji Golam Muhammad , (1919) 43 B. 531 : 21 Bom. L. R. 291 : 51 I. C.

193 : 20 Cr. L. J. 417.

(o) Public Prosecutor v. Sheikh Ahmad , (1911) 21 M. L. J. 439 : 1 M. W. N.

369 : 12 Cr. L. J. 212 : 10 I. C. 107.

(p) Bat Samrath, (1917) 20 Bom. L. R. 106 : 19 Cr. L. J. 351 : 44 I. C. 463.

(q) Ramlala, (1912) 15 Bom. L. R. 103 : 14 Cr. L. J. 177 : 19 I. C. 177.

(r) Kumbola Guruvadu v. Yeragati Patti Kristna, (1915) M. W. N. 203: 16 Cr.
Cr. L. J. 176 & #7 I.C.560.

(s) Sundareswara Sruthigal, (1927) 50 M. 673 : 52 M. L. J. 602 : (1927) M. W. N.

279.

(t) Sheonath, (1914) 39 P. L. R. : 5 P. W. R. of 1914 (Cr.) : 15 Cr. L. J. 532 ;
24 I, C. 844.

622

THE INDIAN PENAL CODE

{chap. XVI

case (u), wheie the petitioner was originally convicted undei Ss. 283 and426, but on
appeal the conviction had been altered to one under s, 341, while maintaining the
sentence intact, that for the conviction of the petitioner under s. 341 for having
obstr ucted a path found to lie on the petitioner's land to which the complainant
claimed a customary right of way, the prosecution had to prove such customary
light. In view of the exception to this section (339) such a right could not be
proved upon the oral testimony of two or three witnesses who are only able to say
that for over 20 years the way has been used by the villagers and the accused could
plea good faith and therefore the conviction was set aside (u).

A person cannot be convicted of wrongful restraint under s. 341 where he
locks up a house under a bona fide claim to the same (v). A person who bona fide
believingin his right to property asserts his claim thereto cannot be convicted under
this section (w).

Point of bona fide raised in revision : — Where the obstruction put up by
the accused was put up in good faith because the accused believed himself to have
a lawful right to obstruct the complainant from going along the path, the Calcutta
High Court held that he was entitled to the benefit of this Exception , though he
did not clearly raise that defence in the courts below (x).

340. Whoever wrongfully restrains any person in such a
„ r manner as to prevent that person from

proceeding beyond certain circumscribing
limits, is said “ wrongfully to confine ” that person.

Illustrations.

(a) A causes Z to go within a walled space, and locks Z in. Z is thus prevented
from proceeding in any direction beyond the circumscribing line of wall. A wrong-
fully confines Z.

{b) A places men with firearms at the outlets of a building, and tells Z that
they will fire at Z if Z attempts to leave the building. A wrongfully confines Z .

This section is a continuation of the offence defined under the last section
with this difference that in the case of 4 wrongful restraint,' the obstruction is in
one direction, but in the case of 4 wrongful confinement,’ the obstruction is in all
directions.

As Coleridge, J., observed in dealing with the Analogous Law of faLe imprison-
ment:— “A prison may have its boundary large or narrow, visible and tangible,
or though real, still in the conception only ; it may itself be moveable or fixed ; but
a boundary it must have ; and that boundary the party imprisoned' must be prevented
from passing ; he must be prevented from leaving that place, within the ambit of
which the party imprisoning him would confine him except by prison breach f# (y) ;
and Patterson, J., in the same case observed : — “ In general, if one man compels
another to stay in any given place against his will, he imprisons that othei just as
much as if he locked him up in a room, and it is not necessary in order to constitute
an imprisonment that a man's person should be touched. The compelling of a man

to go in a given direction against his will may amount to imprisonment

Imprisonment is a total restraint of the person for however short a time, and not a
partial obstruction of his will, whatever inconvenience it may bring on him M (z).

(u) (19 2 9) 33 C. W. N. 915.

(v) Ilowana, (1889) Rat. Unrep. Cr. C. 451.

fw) Sheo Nath , (1914) P. L. R. No. 34 of 1914.

(x) Kalidas Raha , (1925) 30 C. W. N. 192 : 41 C. L. J. 633 : A. I. R. (1925) Cal.
1214.

(y) Bird v. Jones , (1845) 7 Q. B. 742,

(z) Ibid, p, 742.

623

SEC. 340]; OFFENCES AFFECTING THE HUMAN BODY

The Bombay High Court has held that malice is not an essential ingredient
in the offence of 4 wrongful confinement ' as defined by this section and the offence
is complete when a person is wrongfully restrainted in such a manner as to be
prevented from proceeding beyond certain circumscribed limits (a).

The confinement must be wrongful i.e., in order to wrongfully restrain
a person by preventing him from proceeding beyond certain circumscribed
limits : — Theie can be no wrongful confinement when a desire to proceed has
never existed, nor can a confinement be wrongful if the person confined chooses to
remain where he is (b).

Detention through the exercise of moral force without the accompaniment
of physical force or actual conflict is sufficient to constitute the offence of wrongful
confinement (c).

Period of confinement is immaterial : — The time during which a party is kept
in wrongful confinement is immaterial, except with reference to the extent of
punishment (d).

' beyond certain circumscribing limits * : — The detaining of a person in a
particular place or the compelling him to go m a particular direction by force of an
exterior will oveipoweiing of suppressing in any way his own voluntary action is
an imprisonment on the part of the person exercising that exterior will (e)

So Coleridge, J., observed : — “ If in the course of a night, both ends of a street
were walled up, and there was no egress from the house but into the street, I should
have no difficulty in saying that the inhabitants were thereby imprisoned ; but if
only one end were walled up, and an armed force stationed outside to prevent any
scaling of the wall or a passage that way, I should feel equally clear that there was
no imprisonment (f).

If a prisoner is confined in a particular part of a prison without legal authority,
that confinement is a wrongful one, notwithstanding that his confinement in the
prison at large may be legal (g).

No wrongful confinement unless the detention is illegal r — It is only when
there has been an excess by a police-officer of his legal powers of arrest that
it becomes necessary to consider whether he has acted corruptly or maliciously,
and with the knowledge that he was acting contrary to law (h).

An officer arresting a judgment-debtor, under a warrant which directs him
to produce the judgment-debtor when arrested before the Court with all convenient
speed is not guilty of wrongfnl confinement, if having effected the arrest when the
Court is not sitting, he confines him in the house of the judgment-creditor (i).

Bona fide exercise of powers by police officer protected The Madras
High Court by a Full Bench decision , in a case where two police-officers arrested
without a warrant a person who was drunk and creating disturbance in a public
street, and confined him in the police-station though one of them knew his name
and address and it was not found to what extent he was a danger to others or to their
property, held that the arrest having been made by the police-officers without
warrant, for a non-cognizable offence, their action was prima facie an offence under
s. 342, unless it was justified under the provisions of the Code relating to the right

(a) Dhonia v. F. L. Clifford , (1888) 13 B. 376.

(b) Muhammad Din , (1893) P. R. No. 36 of 1894.

(c) Venkatachala Muddali, (1881) 1 Weir. 341.

(d) Suprosonna Ghosal, (1866) 6 W. R. (Cr.) 88.

(e) Paran Kussam Narasaya Pontulu v. Stuart , (1865) 2 M. H. C. 396.

(f) Bird v. Jones , (1845) 7 Q. B. 742 (746).

(g) Baistah Charm Saha , (1902) 30 C. 95.

(h) Amar Singh Jeha, (1885) 10 B. 506.

(i) Samuel , (1906) 30 M. 179.

624

THE INDIAN PENAL CODE

[CHAP. XVI

of private defence or under s. 81 of the Code (j). In a case of police-officer
charged under s. 342, where there was no malice, no intention of doing an act of the
nature spoken of in s. 339 and no voluntary obstruction or restraint, though there
was probably excessive and mistaken exercise of powers not civilly excusable in a
police-officer, the facts were held not to amount to the criminal offence of wrongful
restraint (k). But in an earlier case it was held that a police-officer, who refused
to let a person go home until he had given bail, was guilty of an offence under this
section (1).

Where a Deputy Commissioner of Police sent a Head Constable, placed
under suspension, to the lock-up, without malice and in conformity with a circular
order of the Commissioner of Police published in the ‘ Calcutta Gazette 9 and it
having been found that the Deputy Commissioner did not know that the said
circular was invalid as not having been approved of by the Bengal Government
and where he was prosecuted on a charge of wrongful confinement and was ac-
quitted by the Magistrate, the Calcutta High Court, on revision, held that the
accused by mistake of fact, and not of law, in good faith believed himself to be
bound by law to obey the instructions of the Commissioner of Police and was
justified by law in sending the Head-Constable to custody and he was protected by
Ss. 76 and 79 of the Code ; and it was further held that the High Court does not,
in revision, interfere with an order of acquittal unless such interference is urgently
demanded in the interests of public justice (m).

The Bombay High Court in a case where the accused, a police constable on duty,
upon an honest suspicion that the cloth in the possession of the complainant was
stolen property, arrested him, held that the accused was justified in putting ques-
tions to the complainant, the answers to which might clear away his suspicions,
and having received answers which were not, in his opinion, satisfactory he acted
under a bona fide belief that he was legally justified in detaining what he suspected
to be stolen property and as such he could not be convicted under s. 342 (n).

The same High Court in Gopalia Kallaiya's case (o) held that the accused a
police officer who had arrested a man G after leasonable inquiries and suspicion
under a warrant believing him to be G committed no offence under this section
as he was protected by s. 76.

341. Whoever wrongfully restrains any person, shall be
punished with simple imprisonment for a
fill rest^nt. 1 f ° r w ° ns " term which may extend to one month, or
with fine which may extend to five hundred
rupees, or with both.

The Authors of the Code observed : — “ The offence of wrongful restraint,
when it does not amount to wrongful confinement, and when it is not accompanied
with violence, or with the causing of bodily hurt, is seldom a serious offence, and
we propose therefore to visit it with a light punishment " (p).

Scope : — A private citizen has the right to arrest under the Common Law
of England, which is applicable to India, any person as to whom there is a rea-

(j) Gopal Naidtt, (1922) 40 M. 605 (F. B.) : 17 L. W. 592 : 44 M. L. J. 655 : 32

M. L. T. 352 : (1923) M. W. N. 599 : 73 I. C. 343 : A. I. R. (1923) Mad. 523 (2) (F. B.).

(k) Budrool Hussein, (1875) 24 W, R. (Cr.) 61.

(l) Sheo Shurun v. Mahamad Fazul Khan, (1868) 10 W, R. (Cr.) 20.

(m) Pramatha Nath Barat w P . C. Lahiry , (1920) 47 C. 818: 22 Cr. L. J. 5;

59 I. C. 37, but see In re. Muhund Babu, (1894) 19 B. 72.

(n) Bkawoo Jivaji v. Mulji Dayal t (1888) 12 B. 377,

(o) (1923) 26 Bom. L. R. 138,

(p) Note M.

SEC. 342 ] OFFENCES AFFECTING THE HUMAN BODY

625

sonable apprehension that he would commit a breach of the peace, c.g., a drunken
and disorderly person (q).

Procedure : — Cognizable — Summons — Bailable — Com poundable— -Triable by
any Magistrate — Triable summarily.

A Presidency Magistrate, Magistrate of the first class, or Sub-divisional Magis~
trate may issue search warrant for persons wrongfully confined (r).

To justify a conviction a Court should find that the complainant had a right
to proceed along the path and that he was obstructed by the accused from walking
over it (s).

In the absence of a finding as to whether the complainant had any light to use
the rain-water passage as a urinal, the conviction under this section cannot stand (t).

Any High Court may issue a writ of Habeas Corpus directing that a person
illegally or improperly detained in public oi private custody be set at liberty (u).

Onus : — The burden of proving the offence lies on the prosecution but when
the defence takes the plea of ‘ bona fide ciaim * or pleads ‘ Exception ’ to s. 339, the
onus is on the accused to prove that plea.

The accused in a charge under this section must clearly raise the defence that
he was entitled to the exception to s. 339, supra . (v).

Compounding offence : — An offence under this section may be compounded
without the permission of the Court under s. 345 (I), Cr. P. Code. It is therefore
unnecessary that the compromise should be arrived at after a complaint has been
filed in Court (w).

Magistrate cannot order the removal of an obstruction Under
the old Code of Criminal Procedure the Calcutta High Court by a Full Bench deci-
sion held that a Magistrate, while convicting an accused under sections 314, 414
of the Penal Code for wrongfully restraining a person by the erection of a hut or by
any similar act of obstruction, has no jurisdiction to order that the hut or other
means of obstruction should be remove^ (x).It was pointed out in Prannath Kundus
case (y) that the law has provided a remedy in the shape of proceedings under
s. 133, Cr. P. Code, which speaks of obstruction on ‘any way* and not merely
‘ public way/

For commentary see notes on s. 339, supra .

342. Whoever wrongfully confines any person, shall be
punished with imprisonment of either des~
wrongful confinement. 0 " cription for a term which may extend to
one year, or with fine which may extend to
one thousand rupees, or with both.

(q) Ramaswatni Aiyav , (1921) 44 M. 913 : 22 Cr. L. J, 412 : 61 I. C. 662.

(r) S. 100 Criminal Procedure Code.

(s) In re . Rama Reddi , (1916) 16 Cr. L. J. 701 : 30 I. C. 749.

(t) Gururam Kahar, (1930) 34 C. W. N. 582.

(u) S. 401 Criminal Procedure Code.

(v) Halidas Raha v. Deodhari Mistri> (1926) 30 C. W. N. 192 : 41 C. L. J. 633 :
A. I. R. (1925) Cal. 1214.

(w) Torpey, (1927) 49 A. 484, following Kumarswami Chetti v. Kuppuswamy
Chetty, (1918) 41 M. 685.

(x) Mohini Mohan Chowdhury v. Harendra Chandra Chaudhury , (1904) 31 C.
691 (F. B.) overruling Debendra Chandra Chaudhury v. Mohini Mohan Choudhnry ,
(1901) 5 C. W. N. 402.

(y) (1929) 33 C, W, N, 915 (918),

46

$26 THE INDIAN PENAL CODE [ CHAP. XVI

Procedure Cognizable— Summons— Bailable — Compoundable— T r iable by
Presidency Magistrate or Magistrate of the first or second class.

In order to support a charge of wrongful confinement, proof of actual physical
obstruction is not essential. It must be proved in each case that there was at least
such an impression produced in the mind of the prisoner as to lead him reasonably
to believe that he was not free to depart and that he would be forthwith restrained
if he attempted to do so. The mere threat of some future harm in case of departure
will not suffice if the prisoner knows that it is open to him to go away and refrain
from doing so lest he may suffer such harm. But if the circumstances are such as
to justify and to create the belief that he cannot depart without being seized im-
mediately, then it would be proper to hold that he was obstructed and confined (z).

Autrefois acquit Where several constables were convicted of rioting and
two of them were previously tried and acquitted on a charge under this section, the
Calcutta High Court held that the second trial was not barred under cl. (I), s. 403,
Cr. P. Code (a).

Where in a case relating to the abduction of a minor girl the persons chaiged
as principals were acquitted under s. 342, but others were convicted under s. 368
read with s. 109, held that the conviction could not be sustained and accused were
acquitted (b).

The defence in order to succeed must establish that the confinement was legal
and not wrongful.

Charge : — The charge under this section and Ss. 343 and 344 should run

thus

I ( name and office of Magistrate , etc.) hereby charge you ( name of accused ) as
follows : —

That you, on or about the day of , at-

wrongfully confined XY {and add in a case of s. 343 or s. 344 for days)

and thereby committed an offence punishable under section 342 (or s. 343 or s. 344)
of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried oh the said charge.

Separate sentences: — See notes under s. 71, supra .

Where the petitioners were convicted under Ss. 352 and 342 and sentenced
separately for each of the offences, the acts found against them being that they
seized, dragged and pushed the complainant to a certain place in order to punish
him, the Calcutta High Court held that the infliction of separate punishment is not
in violation of the law, provided that the aggregate punishment awarded is not in
excess of what the Court could inflict for either of the offences (c).

For commentary see notes under s. 340, supra .

Wrongful arrest of debtor . A person, who is instrumental in getting a
wrongful arrest made and after the arrest is made, instigates the bailiff to wrongfully
confine the person arrested in spite of a valid protection order in his favour, cannot
in answer to a charge under S 3 . 342 and 144 put forward the defence that he was
not present at the actual arrest. It was held that the accused could be prosecuted
but having regard to the fact that he was sufficiently punished by the decree of the
civil Court awarding heavy damages, and as regards the second accused who was

(z) Shamlal Jaisam, (1902) 4 Bom. L. R. 79.

(a) Ramsahay Ram , (1920) 48 C. 78 : 31 C. L. J. 476»

(b) Todbul Hussain, (1929) 33 C. W. N. 891,

(c) FaftiraKhan, (1905) 4 C. L. J. 90,

SECS. 343-44 ] OFFENCES AFFECTING THE HUMAN BODY 627

present at the arrest and pointed out the complainant as the person arrested, further
enquiry was directed (d).

343. Whoever wrongfully confines any person for three

days or more, shall be punished with im-
for u?ree Sf or mofc“! prisonment of either description for a term
which may extend to two years, or with fine,

or with both.

Wrongfully coniines — s. 340. Person — s. 11.

Procedure s — Cognizable — Summons— Bailable — Compouniable when per-
mission is given by the Court before which the prosecution is pending (e) — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge— set out under s. 342.

Wrongful confinement for 4 three or more days * s — If the wrongful
confinement is for three days or more, the offence comes under this section ; if the
confinement is for ten days or more, the offence is one under s. 344.

The days will count from the moment that the accused had wrongfully confined
any person.

The accused No. 1 who had a woman in his keeping at Kolhapur brought
her from Kolhapur to Bombay where he kept her in the brothel of accused No. 2.
There she led the life of a prostitute, her movements were watched, and a guard
was kept at the entrance of the house and she was occasionally allowed to go out of
the house under surveillance and it appeared from the evidence that accused No. I
had on previous occasions supplied women to accused No. 2. It was held by the
Bombay High Court that both the accused were guilty of the offence of wrongfully
confining the woman (f). Where the case for the prosecution was that the com-
plainant was in sole possession and occupation of a house in which the accused after
the death of the husband of the prosecutrix came to reside and were allowed to
remain in it as the guests of the complainant and after staying there for a month
put forward a claim to the house and sought to turn the complainant out of the house,
it was held that the house being prima facie a property of the accused the confinement
of the complainant who was a trespasser in a part of the house did not amount to
wrongful confinement under this section and held, further, that no one can be said
to be wrongfully confined during the time that an escape is open to him if he will
avail himself of it (g).

344. Whoever wrongfully confines any person for ten days

or more, shall be punished with imprison*
for'te" 8 or l mor^divT ment °f cither description for a term which

or mo days. ^ tQ ^ ^ ^ ^

liable to fine.

As regards this section the Law Commissioners observed : “ One cannot
conceive of a wrongful confinement continued for ten days or more without deli-

(d) Tiruvengadachariar v. Chokalingam Chettv, 76 I. C. 234 : 25 Cr. L. J. 138 :
18 L. W. 167 : A. I. R. (1924) Mad. 31 .

(c) The words in Italics were substituted for " Not compoundable ” by Act
XV11I of 1923.

(f) Bandit Ebrahim, (1917) 42 B. 181 : 20 Bom. L. R. 79: 44 I. C. 114: 19
Cr. L. J. 258.

(g) mmdai, (1900) 4JC. W. N. (Cr.),

628

THE INDIAN PENAL CODE

[CHAP. XVI

bention and reflection and a special regard to the penal consequences, and when
a man sees that by persisting in his offence he is every day becoming liable to a
certain additional punishment, the motive to set his prisoner free will grow stronger
daily. This reason, we think, obviates the general objection in these instances ” (h).

Procedure s — Cognizable — Summons — -Bailable — Nat compoundable (i) —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge — as set out under s. 342, supra.

Sentence : — Fine alone is not a legal sentence for a prisoner convicted under
this section (j).

345. Whoever keeps any person in wrongful confinement,
knowing that a writ for the liberation of
of person for whose that person has been duly issued, shall be
Issued* 1011 Writ has been punished with imprisonment of either
15 Ie description for a term which may extend to

two years in addition to any term of imprisonment to which he
may be liable under any other section of this Chapter.

Procedure : — Not cognizable— Summons— Bailable — Not compoundable—
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge : — 1 (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the— -day of , at ,

wrongfully confined XY , knowing at the time of such wrongful confinement that a
writ for the liberation of the said XY had been duly issued, and thereby committed
an offence punishable under s. 345 of the Indian Penal Code, and within my cog-
nizance (or cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Wrongful confinement of a person for whose liberation a writ of liber*
ation has been issued with the knowledge that such writ has been duly
issued Wherea Mahomedan subject of the Crown was arrested in Calcutta, and
taken into the mofussil, and there detained in jail under a warrant of the Governor-
General in Council in the form prescribed by Regulation III of 1818, the Calcutta
High Court held that such arrest and detainer were not Acts of State but matters
cognizable by a Municipal Court and held further that as the jperson against whom
the writ was applied for had acted under the written order of tne Governor General
in Council, the Court would not direct the writ to issue (k).

Mere suspicion is not enough (1). This case was followed by Ayling, J., in the
Madras High Court in dealing with an offence of possession of stolen property (m).

(h) First Report s. 393.

(i) These words in Italics were substituted for the word 1 Ditto ' by Act XVIII
of 1923.

(j) Buhiraji Bin Krishnaji, (1863) 1 B. H. C. R. (Cr.) 39.

(k) Ameer Khan, (1870) 6 Beng. L. R. 392. €

(l) Rango Timaji, (1880) 0 B. 402 (403).

(m) Kanniappa Natter, (1913) M. W. N. 690,

SECS. 346-47 ] OFFENCES AFFECTING THE HUMAN BODY 629

346. Whoever wrongfully confines any person in such

manner as to indicate an intention that
in sccrctf u * couhnelneut the confinement of such person may not be

known to any person interested in the per-
son so confined, or to any public servant, or that the place of such
confinement may not be known to or discovered by any such
person or public servant as hereinbefore mentioned, shfell be
punished with imprisonment of either description for a term Which
may extend to two years in addition to any other punishment to
which he may be liable for such wrongful confinement.

Public servant— s. 21, supra .

This section provides for an enhanced sentence as the intention of the offender
in wrongfully confining the victim is that the confinement of such person may not
be known to any person interested in the person so confined or to any public servant
or the place of confinement may not be discovered.

Procedure Cognizable-Summons— Bailable—CompoundaWe when per-
mission is given by the Court before which the prosecution is pending (n) — Triable by
Court of Session, Presidency Magistrate or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you {name
of accused) as follows : —

That you, on or about the day of , at ,

wrongfully confined XY in suck a manner as to indicate an

intention that the confinement of the said XY might not be known

to any person interested in XY the person so confined {or to any

public servant, to wit ) [or that the place of such confinement might

not be known to {or discovered) by any such person or by any public servant], and
thereby you committed an offence punishable under s. 346 of the Indian Penal Code,
and within my cognizance (or cognizance of the Court of Session or the High
Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Wrongful confinement in secret In order to render a person liable under
this section it must be shown that the wrongful confinement wa* of such a nature
as to indicate an intention that the person confined should not be discovered (o).

347. Whoever wrongfully confines any person for the
Wrongful confinement purpose of extorting from the person con-

to extort property or fined, or from any person interested in the
constrain to illegal act. person confined, any property or valuable

security, or of constraining the person confined or any person
interested in such person to do anything illegal or to give any
information which may facilitate the commission of an offence,
shall be punished with imprisonment of either description for a

(n) These words in Italics were substituted for " Not compoundable " in the
old Code by Act XVIII of 1923,

(o) Sreenath Banerjee, (1882) 9 C. 221.

THE INDIAN PENAL CODE

630

[ CHAP. XVI

term which may extend to three years, and shall also be liable to
fine.

Wrongfully confines — s. 40. Valuable security— s. 30.

Person — s. 1 1. Offence— s. 40.

The wording of this section and the next may be compared with that described
in Ss. 329 and 330 where * hurt * is caused with the same intention.

# Procedure : — Cognizable — Summons “ Bailable — Not compoundable (p) —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

wrongfully confined XY for the purpose of extorting from the

said XY or from a person confined (or some person interested in

the said XY, to wit, AB) a certain property or a valuable security (or of constraining

the said XY or A. B. t who was interested in the said XY to do

an illegal act or to give any information which might facilitate the commission of an
offence, namely (specify it) and that you thereby committed an offence punishable
under s. 347 and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And 1 hereby direct that you be tried by the said Court (or by me) on the said
charge.

Wrongful confinement to extort property or of constraining the person

confined to do illegal act :~Wheie a Head-Constable in charge of a police outpost
wanted to drop proceedings against K, who had been arrested on a certain charge
on condition that K paid to him a sum of money, but the Head-Constable sent away
K in charge of two choukidar to procure the money, and in order to effect this ob-
ject the choukidar subsequently confined K at various places and maltreated him,
held that it would be impossible to hold the Head-Constable guilty of abetting an
offence under this section in the absence «of proof that he gave definite orders to
that end (q).

348. Whoever wrongfully confines any person for the purpose
„ r f . of extorting from the person confined or any

to extort confession or person interested in the person confined
compel restoration of an y confession or any information which
prope y ’ may lead to the detection of an offence

or misconduct, or for the purpose of constraining the person
confined or any person interested in the person confined to restore
or to cause the restoration of any property or valuable secu-
rity or to satisfy any claim or demand, or to give information
which may lead to the restoration of any property or valuable
security, snail be punished with imprisonment of either description
for a term which may extend to three years, and shall also be
liable to fine.

Wrongfully confines — s. 340. Offence — s. 40.

Valuable security— s. 30.

(p) These words were substituted for the word* Ditto ' by Act XVIII of 1923.

(q) Lushman Singh , (1904) 31 C. 710.

CRIMINAL FORCE AND ASSAULT

631

SEC. 349 ]

Pr ocedur e : — Cognizab le — Summons — Bailable — Not compoundablc —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

The Court may if it thinks fit issue a search warrant for the person wrongfully
confined (r).

Charge I ( name and office oj Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of _, at- ",

wrongfully confined XY for the purpose of extorting from the said

XY (or from one A B in whom the said XY was interested) any confession (or
any information which may lead to the detection of an offence or misconduct, or
for the purpose of constraining the person confined to restore or to cause the re-
storation of any property or valuable security, or to satisfy any claim or demand, or
to give information which may lead to the restoration of any property or valuable
security) and thereby committed an offence punishable under $. 348 of the Indian
Penal Code, and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Joinder of charges : — If, in any case, either the accused are likely to be be-
wildered in their defence by having to meet many disconnected charges, or the
prospect of a fair trial is likely to be endangered by the production of a mass of
evidence directed to many different matters and tending by its mere accumulation
to induce an undue suspicion against the accused, then the propriety of combining
the charges may be questioned (s).

Wrongful confinement to extort confession or to compel restoration
of property : — Where the accused charged the prosecutor with theft and he was
handed over to the police, it was held that the police and not the accused was
responsible for any oppression or extortion practised by the police on the
prosecutor while in confinement (t).

Of Criminal Force and Assault.

‘ Force ’ is defined in s. 349 and* criminal force ’ is defined in s. 350 as being
the intentional use of force to any person without that person’s consent in order to the
committing of any offence or with the intention to cause, or with a knowledge that
he will be likely to cause by use of such force, injury, fear or annoyance to the
person to whom the force is used. An * assault ' has been defined in s. 351 — It is
something less than criminal force— it is a threat to use criminal force accompanied
by capacity to carry out such threat in action immediately. Ss. 352 and 358 provide
for penalty for the offence of assault or criminal force which varies according as the
offence is, or is not, committed on grave and sudden provocation. S. 353 deals
with assault or criminal force to a public servant in the discharge of his duties as
such in order to deter that person from doing his duty. S. 354 deals with assault
or criminal force to any woman with the intention of outraging her modesty*

Ss. 355-358 deal with the offence of * assault * or ‘ criminal force * in an
aggravated form.

349* A person is said to use force to another if he causes
Force motion, change of motion, or cessation of

OTtc motion to that other, or if he causes to any

substance such motion, or change of motion, or cessation o f motion

(r) S. 100, Criminal ’Procedure Code.

(s) Fakirappa, (1890) IS B. 401.

(t) Shumboonath Panday, (1864) 1 W. R. (Cr.) 26.

632

THE INDIAN PENAL CODE

tcHAP. XVI

as brings that substance into contact with any part of that other’s
body, or with anything which that other is wearing or carrying,
or with anything so situated that such contact affects that other’s
sense of feeling : Provided that the person causing the motion,
or change of motion, or cessation of motion, causes that motion,
change of motion, or cessation of motion in one of the three ways
hereinafter described :

First . — By his own bodily power.

Secondly : — By disposing any substance in such a manner
that the motion or change or cessation of motion takes place
without any further act on his part, or on the part of any other
person.

Thirdly . — By inducing any animal to move, to change its
motion, or to cease to move.

Animal— s. 47.

Force : — The term 4 force * as defined in this section applies to force when
used in connection with the human body. Therefore where an accused is con-
victed of the offence of rioting for causing violence to a fencing and not to any per-
son, an order under s. 522, Criminal Procedure Code, should not be passed inasmuch
as there is no use of criminal force to any individual (u).

350. Whoever intentionally uses force to any person,
without that person’s consent, in order to
the committing or any offence, or intending
by the use of such force to cause, or knowing it to be likely that
by the use of such force he will cauje injury, fear or annoyance
to the person to whom the force is used, is said to use criminal
force to that other.

Illustrations.

(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and
thus intentionally causes the boat to drift down the stream. Here A intentionally
causes motion to Z , and he does this by disposing substances in such a manner that
the motion is produced without any other act on any person's part. A has therefore
intentionally used force to Z ; and if he has done so without Z's consent, in order to
the committing of any offence, or intending or knowing it to be likely that this use
of force will cause injury, fear or annoyance to Z, A has used criminal force to Z.

(ft) Z is riding in a chariot. A lashes Z's horses, and thereby causes them to
quicken their pace. Here A has caused change of motion to Z by inducing the animals
to change their motion. A has therefore used force to Z ; and if A has done this
without Z’s consent, intending or knowing it to be likely that he may thereby injure,
frighten or annoy Z, A has used criminal force to Z.

(c) Z is riding in a palanquin. A t intending to rob Z, seizes the pole, and stops
the palanquin. Here A has caused cessation of motion to Z, and he has done this
by his own bodily power. A has therefore used force to Z ; and as A has acted thus
intentionally, without Z's consent, in order to the commission of an offence, A has
used criminal force to Z.

(u) Sadasib, (1913) 18 C. VV. N. 1160 ; 26 I. C. 168 : 16 Cr. L. J. 720.

SEC. 350 ]

CRIMINAL FORCE AND ASSAULT

633

(d) A intentionally pushes against Z in the street. Here A has by his own
bodily power moved his own person so as to bring it into contact with Z. He has
therefore intentionally used force to Z ; and if he has done so without Z’s consent,
intending or knowing it to be likely that he may thereby injure, frighten or annoy
Z t he has used criminal force to Z.

(<?) A throws a stone, intending or knowing it to be likely that the stone will
be thus brought into contact with Z , or with Z’s clothes, or with something carried
by Z , or that it will strike water, and dash up the water against Z’s clothes or some-
thing carried by Z. Here, if the throwing of the stone produce the effect of causing
any substance to come into contact with Z t or Z’s clothes, A lias used force to Z ; and
if he did so without Z’s consent, intending thereby to injure, frighten or annoy Z t
lie has used criminal force to Z .

(/) A intentionally pulls up a woman’s veil. Here A intentionally uses force
to her, and if he does so without her consent, intending or knowing to be likely that
he may thereby injure, frighten or annoy her, he has used criminal force to her.

(g) * is bathing. A pours into the bath water which he knows to be boiling.
Here A intentionally by his own bodily power causes such motion in the boiling water
as brings that water into contact with Z, or with other water so situated that such
contact must affect Z’s sense of feeling. A lias therefore intentionally used force
to Z ; and if he has done this without Z’s consent, intending or knowing it to be
likely that he may thereby cause injury, fear or annoyance to Z, A has used criminal
force.

(h) A incites a dog to spring upon Z, without Z’s consent. Here, if A intends
to cause injury, fear or annoyance to Z, he uses criminal force to Z.

Force — s. 349. Offence — s. 40.

Consent — s. 90. Injury — s. 44.

“ The definition of ‘ criminal force * appears to include what is termed by the
English law * battery ’ that is, any, even the least hurt or violence inflicted on the
person of another.

“ If there is the use of force as defined in the preceding section, and this is
intentional on his part who uses it, and is also without the consent of the person
against whom it is used, such use ef force becomes criminal, when it has for its
object the commission of an offence ( see s. 40), the causing of injury ( see s. 44), or the
causing of fear or annoyance.

" It will be observed that the definition to the offence does not include anything
that the doer does by means of another person " (v).

Essential ingredients of the section

(1) The intentional use of force to any person.

(2) Such force must have been used without that persons consent .

(3) Such force was used in order to the committing of any offence, or

(4) With the intention to cause or with a knowledge that he will be likely to

cause, by use of such force, injury, fear, or annoyance to the person
to whom such force is used.

1* Intentional use of force : — The word 4 intentional ' is important, inten-
tion is the gist of the offence.

Where the accused raised their lathis to strike a particular person with the result
that he had to fly away to save himself, the Allahabad High Court held that
they were guilty of using criminal force as defined in s. 349 (w).

(v) Morgan and Macpherson 1 Penal Code ’ p. 308.

(w) Jai Ram , (1914) 12 A. L. J. 154 : 23 I. C. 183 : 15 Cr. L. J. 231.

634

THE INDIAN PENAL CODE

[CHAP. XVI

The definition of * criminal force ’ given in this section contemplates criminal
force used against a person and not against any matter or substance (x).

2. Without that person 9 * consent : — 1 Consent * in this section and other
sections of the Code must be read subject to s. 90, supra , see commentary on that
section.

Upon an indictment for rape there must be some evidence that the act was
without the consent of the woman, even where she is an idiot. In such a case,
where there was no appearance of force having been used to the woman, and the
only evidence of the conviction was the prisoner's own admission coupled with the
statement that it was done with her consent, the Court held that there was no
evidence to go to the jury (y).

3. In order to the committing of an offence Where the foice used
is an essential element in the offence intended to be committed the prosecution will
fail unless want of consent is proved. Thus in a case under s. 354, infra , if the
woman is a consenting party criminal force will not be proved and necessarily the
charge will fail. Although the consent of the woman is a sufficient answer to a
charge under s. 354, it is not so to a charge of ‘ adultery ’ because ‘ adultery * is an
offence independently of the force used and the consent of the woman might entitle
the accused to an acquittal on the ground that ‘ force ' — an element of an offence
under s. 354 been disproved but according to s. 91 , supra, the accused will be found
guilty of ‘adultery.’

4. With the intention to cause or with the knowledge that he will be
likely to cause by such force, injury, fear or annoyance to the person to
whom such force is used : — The act must be intended to cause injury, fear or
annoyance to the person to whom foice is used. As Baron Paike, said: “The
act must be of an adverse nature. A touch in order to draw the plaintiff's attention,
or in pushing through a crowd in an ordinary manner is not sufficient ” (z) f other-
wise a friendly slap on the back would be criminal. But this observation does not
apply to * indecent assault ' in India.

351. Whoever makes any gesture, or any preparation,
Assault intending or knowing it to be likely that such

gesture or preparation will cause any person
present to apprehend that he who makes that gesture or prepara-
tion is about to use criminal force to that person, is said to
commit an assault.

Explanation . — Mere words do not amount to an assault.
But the words which a person uses may give to his gestures or
preparations such a meaning as may make those gestures or
preparations amount to an assault.

Illustration.

(a) A shakes his list at Z, intending or knowing it to be likely that he may
thereby cause Z to believe that A is about to strike Z. A has committed an assault.

(b) A begins to unloose the muzzle of a ferocious dog, intending, or knowing
it to be likely that he may thereby cause Z to believe that he is about to can so the
dog to attack Z. A has committed an assault upon Z.

(x) Bair am Sahu , 2 Pat L. T. 120 r 61 I. C, 57 : 22 Cr^L. J. 329.
fy) Fletcher, L. R. 1 C. C. R. 39.

(z) Rawlings v. Till, 3 M. and W. 28.

CRIMINAL FORCE AND ASSAULT

635

SEC. 351 ]

(e) A takes up a stick, saying to Z, " I will give you a beating.” Here, though
the words used by A could in no case amount to an assault, and though the mere
gesture, unaccompanied by any other circumstances, might not amount to an assault,
the gesture explained by the words may amount to an assault.

44 An ‘ assault * is something less than the use of criminal force, the force being
cut short before the blow actually falls. It seems to consist in an attempt or offer
by a person having present ability with force to do any huit or violence to the
person of another. And it is committed whenever a well-founded apprehension of
immediate peril from a force already partially or finally put in motion is created.
An assault is included in eveiy use of criminal force.

44 Mere words, it is explained, do not amount to an assault. Such acts as the
following : — A blow which is purely accidental, an injury received in playing at any
lawful sport by consent, reasonable chastisement of a child by his parent or guardian,
or of a scholar by his schoolmaster, a blow or other violence in self-defence, the use
of force by a public servant within the sphere of his duty, force used in defence of a
man’s property and the like — are not offences, eithei under the head of criminal
force or assault, or under any other provision of the Code. By the Chapter on
4 General Exceptions ’ such acts are saved from being accounted offences” (a).

Tindal, C. J„ observed : 44 It is not every threat where there is no actual
personal violence that constitutes an 4 assault * ,* there must, in all cases, be the means
of carrying the threat into effect. If, therefore, a party, is advancing in a threaten-
ing attitude, c.g with his fist clenched, to strike another, so that his blow would
almost immediately have reached such person, and he then stopped, it is an assault
at law, if his intent were to strike such person, though he was not near enough at the
time to have struck him ” (b). Parke, B, said in another case : It is an assault
to present a pistol at all, whether loaded or not. If you threw the powder out cf
the pan, or took the percussion cap off, and said to the party, 4 This is an empty
pistol ’ then that would be no assault ; for there the party must see that it was not
possible that he should be injured ; but if a person presents a pistol which has
the appearance of being loaded, and puts the party into fear and alarm, that is what
it is the object of the law to prevent. 1 think that if it should be proved that the
prisoner presented a pistol purporting to be a loaded pistol, and the jury are satis-
fied that it was so near as to produce danger to life if the pistol had gone off, that
would be an assault in point of law, and that the prisoner might be convicted of that
assault upon this indictment ” (c).

Mayne in his valuable commentary says : “ Whatever the English law may
be, Baron Parke's ruling seems in direct accordance with the language of s. 351

The essence of the offence is the effect reasonably produced

upon the mind of the person threatened ” (d).

* makes any gesture or preparation * Before an act can amount to an
assault under this section it is necessary that a gesture or preparation should be
made by a person which would cause another to apprehend that the person was
about to use criminal force to him then and there. A preparation taken with words
which would cause him to apprehend that criminal force would be used to him,
if he persisted in a particular course of conduct, does not amount to an assault (e).

If a person throws bricks into the house of another, this would be a gesture as
it would cause the person into whose house the bricks are thrown to apprehend that
criminal force was about to be used against him (f).

(a) Morgan and Macpherson * Penal Code ’ p. 309.

(b) Stephens v. Myers t (1830) 4 C. and P. 349.

(c) Reg. v. St. George , (1840) 9 C. and P. 483 (490).

(d) Maync ' Criminal Law of India* 3rd Ed. p. 634 and 635.

(e) Birhal Khalifa , (1902) 30 C. 97.

(f) Mohadeo Pandey, (1932) A. L. J. 224.

tHE INbtAN PENAL CODE

636

[chap. XVI

A mere threat to use force if a person persists in a course of conduct does not
amount to assault (g).

Preparation to commit a crime is no offence :~ Illu$. (6) makes
preparation an offence when it is accompanied with the intention given in this
section.

4 intending or knowing it to be likely that such gesture or preparation
will cause any person to apprehend that the person making gesture or
preparation is about to use criminal force 9 : — Intention is the essential
ingredient of the offence under this section.

Where one of the accused hit a constable and the others surrounded the cons-
table in a threatening manner, the Madras High Court held that this finding
was not sufficient to convict the others of an assault (h).

The authority delegated by the parent of a pupil to a schoolmaster to inflict a
reasonable personal chastisement upon him is not limited to offences committed
by the* pupil upon the premises of the school, but may extend to acts done by such
pupil while on the way to and from school (i).

Explanation : — Mere words do not amount to an assault, but the words which
the party threatening uses at the time may either give his gestures such a meaning
as may make them amount to an assault, or on the other hand, may prevent them
fiom being held to amount to an assault (j).

352. Whoever assaults or uses criminal force to any person
otherwise than on grave and sudden provoca-
tion given by that person, shall be punished
with imprisonment of either description for
a term which may extend to three months,
or with fine which may extend to five hundred rupees, or with
both.

Punishment for as-
sault or criminal force
otherwise than on grave
provocation.

Explanation . — Grave and sudden provocation will not miti-
gate the punishment for an offence 'under this section, if the
provocation is sought or voluntarily provoked by the offender as
an excuse for the offence, or

if the provocation is given by anything done in obedience
to the law, or by a public servant, in the lawful exercise of the
powers of such public servant, or

if the provocation is given by anything done in the lawful
exercise of the right of private defence.

Whether the provocation was grave and sudden enough to
mitigate the offence, is a question of fact.

The language of the Explanation is similar to the three provisos to s. 300,
Exception I— see commentary on that section.

Procedure : — Not cognizable — Summons — Bailable — Compoundable —
Triable by any Magistrate-Triable summarily.

(g) Mathuradas v Secretary of State, (1011) 5 S. L. R. 140: 13 I. C. 237.

(h) Munissami, (1910) 7 I. C. 416 : 8 M L. T. 118.

(i) Cleary v. Booth , (1893) l Q. B. 466.

(j) Coma v. Morgan, (1864) 1 B. H, C, R. 206.

SEC. 353 ]

CRIMINAL FORCE AND ASSAULT

637

Autrefois Acquit A person tried and acquitted of a charge under this
section cannot be tried in respect of the same criminal matter on a charge of hurt (k).

Alteration of charge Court can alter a charge under s. 122 of the City
of Bombay Police Act to one under this section (1).

Charge under s. 353.— Conviction for assaulting a witness -Where
the accused was called upon to answer a charge under s. 353 which having failed it
was found that he assaulted a witness who had not lodged a complaint, held , that the
conviction of the petitioner for having assaulted the witness could not be upheld (m).

Sentence : — In a case of assault, a sentence inflicting a fine of 50 rupees and
awarding imprisonment of one month in default of payment of the fine is illegal (n).

An assault on a citizen for appealing to the police needs a deterrent sentence (o).

All cases of tiifling assaults will be met by s. 95, supra.

Explanation : — If the provocation is given by anything done in the lawful
exercise of the right of private defence .

# A Sub- Inspector of Police has no right to enter or attempt to search a house
which is situate outside his circle ; if he does so, no offence is committed if the
inmates assault him in order to prevent him from entering the house (p).

Trespass in a pleader s room — turning out without violence — does not amount
to assault. Where A, who was not a pleader entered the Pleader’s Bar Library
in spite of protest from a pleader and although his attention was drawn to a rule
prohibiting outsiders, he refused to leave the room and was thereafter put out of the
room by B , the Bombay High Court held that B did not exceed his rights in putting
A out of the room and therefore was not guilty of an offence under this section (q).

See, also commentary on s. 350, supra .

353. Whoever assaults or uses criminal force to any person
a „n. ^ ^ being a public servant in the execution of his
force to deter public duty as such public servant, or with intent
oThisdnty 0 ” 1 JischarR0 to prevent or deter that person from dis-

1 charging his duty as such public servant, or

in consequence of anything clone or attempted to be done by such
person in the lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.

Assault — s. 351. Ciiminal force — s. 350.

Public servant — s. 21.

Procedure {—Cognizable — Warrant— Bailable— Not compoundable— Triable
by Presidency Magistrate or Magistrate of the first or second class.

“The assault is aggravated because a public servant is the object of it .

To support a charge under this section, — besides proof of the assault or use of

(k) Kaptan v. G. M. Smith, (1871) 16 \V. R. (Or.) 3.

(l) Frarnji Bomanji Bonaji, (1925) 28 Bom. L. R. 291 : 27 Cr. L. J. 496 : A. I. R.
(1926) Bom. 265.

(m) Muthuka Nakhu, 23 Cr. L. J. 206: A. I. R. (1922) Mad. 182.

(n) Jehan Buksh, (1871) 16 W. R. (Cr.) 42.

(o) Frarnji Bomanji, (1925) 28 Bom. L. R. 291 : A. I. R. (1926) Bom. 255,
following Dasarath Rai t 36 C. 869.

(p) Pitam Lai , 71 I. C. 996 : 24 Cr. L. J. 276 ; A. I. R. (1923) All. 433, see contra,
Gokul, (1922) 45 A. 142.

(q) Moro Balwant* Mar at he, (1913): 15 Bom. L. R. 1039; 22 I. C. 158: 15

Cr. L. J. 14.

638

THE INDIAN PENAL CODE

[CHAP. XVI

criminal force, and pi oof that it was used against one who either was or was acting
as a public servant (see s. 21) — it should be shown that the accused had knowledge
of the official character of the person assaulted. It will of course be open to the
accused to show illegality or excess on the part of the public servant " (r).

For the defence to succeed the accused, ought to establish either by cross-
examination of the prosecution witnesses or by adducing evidence on behalf of the
defence : —

(1) that the accused did not assault or use criminal force to a public servant

in the execution of his duty as such public servant, or

(2) with intent to prevent or deter such public servant from discharging

his duties as such public servant, or

(3) in consequence of anything done or attempted to be done by such public

servant in the lawful discharge of his duties as such public servant.

In short, it is to be established that the prosecution has failed to prove that the
public servant assaulted was at the time of assault discharging his duty as a public
servant, and the * unlawful act' of the public servant.

Charge I ( name and office of Magistrate , etc.) hereby charge you (pome
of accused) as follows : —

That you, on or about the day of — , at ,

assaulted (or used criminal force to ) X Y, a public servant to wit , in

the execution of his duty as such public servant (or with intent to pervent or deter
the said XY from discharging his duty as such public servant) and thereby com-
mitted an offence punishable under 353 of the Indian Penal Code and within
my cognizance.

And I hereby direct that you be tried on the said charge.

Assaulting a public servant to deter him from discharge of his duty

Where the warrant in the execution of which a public servant was assaulted was
neither produced nor was secondary evidence given, the conviction under this sec-
tion was held bad (s). A public servant does not cease to be a private citizen and the
law will take cognizance of an assault committed upon him, independently alto-
gether of his position as a public ser/ant ft). A person cannot, when called upon to
meet a charge that he had assaulted a public officer in the discharge of his duties,
on a failure of that charge, be convicted of an offence of having assaulted a public
individual, viz., a witness in the ca«e, especially in the absence of a complaint
by that private individual (u).

Lascar ; ~~A. P. W. D. Lascar is a public servant within the meaning of this
section and persons guilty of assaulting him, while engaged in distributing water
from the irrigation channel are liable to be convicted under this section (v).

Assault or criminal force on a public servant in the execution of his
duty or to deter him from discharge of his duty as such public servant

The words ‘ in the discharge of his duty as such public servant * mean in the
discharge of a duty imposed by law on such public servant in the particular case, and
do not cover an act done by him in good faith under colour of bis office (w).

(r) Morgan and Macpherson, * Penal Code ’ p. 311.

(s) Tafuzzul Ahmed Choudhury , (1899) 20 C. 030.

(t) Sampat, (1917) 15 A. L. J. 505: 18 Cr. L. J. 803 : 41 I. C. 323.

(u) Akbar Mamin, (1901) 0 G. W, N. 202. **

(v) Public Prosecutor v. Anan Nayudu, (1925) 48 M. 807.

fw) Dahp, (1890) 18 A. 246 followed, in Jagannath , (1932) A. L. J. 179,

SEC. 353 ]

CRIMINAL FORCE AND ASSAULT

639

The refusal of persons appointed as special constables to accompany the
inspector who went to inform them of their appointment as such, is no offence
under s. 19 of the Police Act, as the order was not intended for any purpose of police
duty, and the arrest under such circumstances is not legal and persons obstructing
such police-officer could not be guilty under this section, but they could be guilty
of rioting under s. 147 of that Code (x).

Where a police-officer was deputed in a private place to control the traffic on the
road leading from that private place to the public road and he was assaulted while
so discharging his duty, held , the police-officer was acting in the lawful discharge of
his duty and the accused was guilty of an offence under s. 353 (y).

The arrest by a duffadar of a person for theft on complaint made to him, but
not committed in his presence, is illegal under s. 39 (2) of Bengal Act VI of 1870 ;
and neither the rescue of such person from his custody nor the threat to beat him
does amount to an offence under s. 225 or under this section (z).

Entrustment of a warrant to a forester is not legal and the endorsement of the
warrant in favour of the watcher could not empower him to arrest any person. Hence
the offence does not come within the purview of this section when the watcher was
slapped on the cheek in his attempt to arrest a person guilty of an alleged forest
offer&e, and the conviction was altered into one under s. 352 (a).

Where a warrant allowing bail is being executed by a constable, it is his
bounden duty to state that bail would be taken. If the constable did not give the
slightest intimation to the person arrested of the fact that bail had been allowed,
the arrest would be illegal. The arrested person’s people would be justified by the
law of piivate defence, in rescuing him by committing a common assault upon the
constable fb). A contrary view has been held by the same High Court in a case
where the complainant and a civil court peon went to take possession of a certain
share in the tank and the accused on behalf of the other co-sharer of the complainant
objected to the delivery of possession and rushed into the water and with a knife
cut some of the nets of the fishermen whc were catching fish there and as soon
as the official status of the peon was disclosed the accused retired. It was held
that the accused had no right of pnvate defence against the Peon, who was acting
under the colour of his office, and in good faith, though the act may not be strictly
justified by law (c).

In the execution of his duty as such public servant : — The Punjab Chief Court
has held that those words in this section mean duty imposed by law on such pub-
lic servant and do not include acts done in good faith under colour of his office by
such public servant. It was held further that a public servant cannot take shelter
under s. 99 where the initial proceedings and the power under which a public servant
purports to act are altogether without jurisdiction and are ultra vires (d). The
assaulting of a Malguzar, who was holding an inquiry in the matter of damage
done to Government forest is not an offence under this section as such inquiry
is not one of his legitimate duties (e). Where a licensed vaccinator attempted
to take lymph from a child of one petitioner to vaccinate the child of the

(x) Raman Singh , (1900 ) 28 C. 411.

(y) Gian Singh , A. T. R. (1928) Lah. 230.

(z) Balai De, (1907) 35 C. 301.

(a) Pasavathia Pillai , (1928) M W. N. 310 : A. I. R. (1928) Mad. 624.

(b) Shayama Char a?? Majumdar, (1911) 16 C. W. N. 549: 15 I. C. 1006.

(c) Preolal Mukherje (1913) 18 C. W. N. 548 : 24 I. C. 163 ; Amir Khan, (1913)
P. L. R. No. 183 of 1913.

(d) Asa, (1913) P. L. R. No. 325 of 1913 : 20 I. C. 992 : 14 Cr. L. J. 512 : 38

P. YV. R. 1913. •

(e) Meharban Singh , (1911) 12 Cr. L. J. 112: 9 I. C. 669 (All.).

640

THE INDIAN PENAL CODE

[CHAP. XVI

other, and was assaulted in consequence and received slight injuries* it was
held that the accused was justified in assaulting the vaccinator and held , further
that the slight injuries did not prevent him from discharging his duty(f). Where
a survielle on a domiciliary visit being paid to him by a police-officer, refused to
allow his thumb impression to be taken, and on the officer attempting to take it,
produced a lathi saying he would not allow the impression to be taken, and if any
one asked for it, he would break his head, it was held that the act of the survielle
did not amount to an assault and that his conviction under this section was set
aside (g). Where a peon was not acting in the discharge of his duty as a public
servant and the accused assaulted the peon, it was held by the Allahabad High
Court that the accused could not be convicted under this section (h). The Calcutta
High Court in an earlier decision held that where the search by an excise officer
was illegal, the conviction under this section was illegal (i).

Search without a proper warrant : — Where information was laid at the
thana of criminal breach of trust by a servant of a particular sum of money and he
was arrested and thereafter the sub-inspector of police proceeded with the inform-
ant and searched a house in the joint possession of the suspect and of his brothers
whereupon they and otheis resisted the search and assaulted the sub- inspector and
confined and assaulted the informant, the Calcutta High Court held that the search
being lawful the conviction of the petitioners under this section and Ss. 323 and
342 was right (j). The Madras High Court held the same view in a case where a
sub-inspector of Salt and Abkari attempted without a search warrant to enter a house
in search of property, the illicit possession of which is an offence under the Madras
Abkari Act and was obstructed and resisted (k).

A warrant issued by a Revenue officer for the arrest of a defaulting witness,
which does not contain the name of the peison to be arrested, is illegal, and a con-
viction, under s. 225-B, of the witness arrested under such warrant for escaping
from custody, and of others, under s. 350, for assaulting a public servant in the
discharge of his duty, is bad in law (I).

Arrest by Police-Constable without warrant upon credible informa-
tion-obstruction to arrest is an offence : — In a case where a police-constable,
having knowledge that a warrant of arrest in respect of a cognizable offence was
outstanding against a certain person, attempted to arrest such person and in so doing
was assaulted and prevented from effecting the arrest, the Allahabad High Court
held that the existence of the warrant was equivalent to ‘ credible information ’
within the meaning of s. 54 (1), Criminal Procedure Code and that the persons
preventing the arrest were properly convicted under this section (m). But in a
later case whe.e a police-officer conducted a search in the house of the accused,
who did not reside within the limits of his jurisdiction, accompanied by a constable
of the police station which had jurisdiction, but the constable had no order, either
written or verbal, from his own sub- inspector and while engaged in the search they
were assaulted by the accused who was convicted under this section, it was held,
that the accused could not be convicted because the provisions of Ss. 165 and 166
of the Criminal Procedure Code were not complied with (n).

(f) Mangovinda Mtichi, (1899) 3 C W. N. 027 ; distinguished in Soormgi Singh ,
(1900 ) 5 C. W.N. 134.

(g) Birbal Khalifa, (1902) 30 C. 97.

(h) Gokul Chand . (1920) 59 I. C. 321 : 22 Cr. L. J. 65 (All.).

fi) Jagarnath Mmxdhata , (1897) 1 C. W. N. 233.

(j) Bisser Misser, 41913) 41 C. 261 : 17 C. W. N. 1209 : 20 I. C. 229 : 14 Cr. L. J.

40 5.

(k) Pukot Kotu, (1896) 19 M. 39; Poomlai Udoyan , (1898) 21 M. 290.

(!) Jogcndranath\ r . Hiralal, (1924) 51 C. 902. e

(in) Copal Singh, (1 91 3) 30 A. 6 : 11A.L.J. 967 : 22 I. C. 756 ; 15 Cr. L. J. 179.

(n) Madho Sonar , (1915) 13 A. L. J. 091 ; 16 Cr. L. J. 589: 30 J. C. 141,

SEC. 353 ]

CRIMINAL FORCE AND ASSAULT

641

Where the Accused* on being asked by a police-constable to accompany him to
the Sub-Inspector without a written order from the latter under s. 160 of the Crimi-
nal Procedure Code* assaulted the constable, the Nagpur Judicial Commissioners'
Court held that the constable was not acting as a public setvant in the
discharge of his duty and that the accused was therefore not guilty under this sec-
tion (o) v but where accused's borther was suspected of having committed a theft
of some property and the complainant and Inspector of Police went to search his
quarters, when the accused assaulted the complainant at the time of the attempted
search* the Allahabad High Court held that the conviction of the accused under this
section was right (p).

Execution of warrant within time — Assault to an Officer — offence under this
section When an amin of a Munsif's Court executed a warrant within the time
allowed by the Munsif, though after the expiry of the time allowed by the nazir of
the Court, the Madras High Court held that the warrant had not become time-barred
when it was executed and that the amin acted in the discharge of his duty in execut-
ing it, and that a person who assaulted him while executing the warrant was guilty
of an offence under this section (q).

Resistance of time-barred warrant is no offence Where the warrant had expired*
it was held that the peon obstructed had no authority to execute it and there can be
no offence under this section (r).

Defective warrant : — Where the warrant of arrest in execution of a decree
was only initialled by a proper officer sealed with the seal of the Court and was
delivered to a proper officer for execution and the debtor forcibly resisted the
officer and was convicted under this section, the Allahabad High Court held that
the conviction was right (s). But the contrary view was held by the Calcutta High
Court in Abdul Goffurs case (t). The same High Court in a later case under
s. 225-B held that under s. 75 of the Criminal Procedure Code* the
affixing of the seal of the Court was essential to the validity of a warrant. An
arrest under a warrant duly signed but not sealed is illegal (u).

A warrant used by the Collector under s. 46 of the Income Tax Act is without
authority and a police-officer executing such a warrant cannot be said to be acting
in the execution of his duty (v). Where under a warrant authorising distraint of
property of a person who had defaulted to pay water-tax, the person executing the
warrant seized the property of the lessee of the person against whose property there
was the warrant and was assaulted by the lessee, the Madras High Court held that
the accused was not guilty of an offence under this section (w).

Defective service: — Where the serving officer had not been able to effect
personal service of the summonses, but had affixed copies to the houses of the
persons to be served* and the officers charged with the execution of the warrants
arre*ted one of the witnesses but they were attacked by one N and others and the

(o) Takaram, (1918) 48 I. C. 688: 20 Cr. L. J. 48 (Nag.).

(p) Bhim Singh , (1918) 17 A. L. J. 115: 49 I. C. 494 : 20 Cr. L. J. 174.

(q) Garapati Kotaya, (1923) 45 M. L. J. 74 : (1923) M. W. N. 444 : 32 M. L. T.
248 : 75 1. C. 70S : 25 Cr. L. J. 64 : A. I. R. (1923) Mad. 087, following Subed AH,
(1913) 40 C. 849.

/r) Nandalal, (1923) 19 N. L. R. 183 : 76 I. C. 055 : 25 Cr. L. J. 223 : A. I. R.
(1924) Nag. 08; following Anandalal Beta 10 C. 18: 13 C. L. R. 209; Abinash
Chandra v. Ananda Chandra Paul , 31 C. 424 ; 1 Cr. L. J. 442 ; Judaji Rant , (1916)
2 P. L. J. 18 : 18 Cr. L. J. 300 : 38 I. C. 744.

(gl Janhi Pn;h id, (1880) 8 A. 293.

ft) (1880) 23 C. 890.

(u) Mahajan Sheikh . (1914) 42 C. 708.

(v) Jairam Sahu, 4 Pat. L. T. 171 : 72 L C. 954 ; 24 Cr. L. J. 490 : A. I. R.

1923 Pat. 338. • ^ ^

(w) Mullampati Narasinhatn y. Sub Inspector of Police , (1924) 47 M. L. J. 44 1 ,

47

642 THE INDIAN PENAL CODE [CHAP. XVI

min they had arrested was rescued, the Allahabad High Court hekt that even if
s. 225-B was not applicable, the conviction under this section was perfectly justi-
fied (x).

Omission to comply with the provisions of Or 21 r. 22 (2) Civil Procedure
Code, does not make the warrant illegal and a person resisting execution of such a
warrant would be guilty of an offence under this section (y).

Assaulting officer executing orders under repealed Act is an offence
Where a Court has jurisdiction to order delivery of possession of certain pioperty,
the mere fact that it purports to do so under the authority of a repealed Act will not
take away it » jurisdiction nor deprive the protection, which the law gives to a public
servant acting under the orders of a Coutt of competent jurisdiction and the
accused assaulting the process-server was held guilty under this section (z).

Resistance to Revenue Inspector : — Where the warrant of a distraint was
addressed to the village headman and not to the Revenue Inspector who was super-
vising the work of the village headman as it was his duty to do, and who had been
specially enjoined by his superior the Tahsildar to attend to the work of distraint,
held that resistance to the Revenue Inspectors constituted an offence under this
section (a) Spencer, J, in Kandasamis case (a) distinguished Dalips casojit) and
Rex v. Roxburgh (c).

Where the petitioner assaulted peons and rescued a person from their custody,
Aikman, J., sitting singly upheld the conviction of the petitioner under this section
but the assault being of a trifling sentence he reduced the sentence to the term of
imprisonment already suffered by him (d).

Illegal distraint— Assault while distraining is no offence under this
^section s— The act of a bill collector in distraining the doois of a house under s. 82,
cl. (2) of the Madras Local Boards Act (Act V of 1884) is illegal and if while so dis-
training he is assaulted, an offence undei s. 358 and not under this section is com-
mitted (e).

Rescuing a person arrested under a valid order is an offence under

Ss» 353 and 225, 1. P. C. A constable arrested a person in pursuance of a written
order made by a Sub-Inspector undei s. 56 of the Criminal Proceduie Code. The
accused hustled the constable, pushed him aside and thus rescued the person who
had been arrested. The Allahabad High Court held that the accused was guilty
of offences under this section and s. 225 (f).

354. Whoever assaults or uses criminal force to any

Assault or criminal woman intending to outrage or knowing it to
force to woman with be likely that he will thereby outrage her
modesty 0 oatrage her modesty, shall be punished with imprison-
ment of either description for a term which
may extend to two years, or with fine, or with both.

Assault— s. 351. Woman— 8. 10. Criminal Force— s. 350.

(x) Narbadeswar, 27 A. 491 : (190 5) A. W. N. 60 : 2 Cr. L. J. iss’

(y) Rajani Kanto Saha , (1930) 58 C. 940 : 35 C. W. N. 225 following Govern-
ment of Assam v. Sahebulla, 27 C. W. N. 857 (F. B.).

(z) Lava, (1916) 13 N. L. R. 87: 18 Cr. L. J. 689: 40 I. C. 689.

(a) In re, Kandaswami Goundan , 25 Cr. L. J. 290: A. I. R. (1924) Mad. 639.

(b) (1896) 18 A. 246.

(c) 12 Cox. Cr. C. 8.

(d) Narabadeswar, (1905) 27 A. 491.

(e> Chinnaswami Pillai v. Chairman of the Arkonam Union, (1914) 16 M. L. T.
429 : 25 I. C. 837 : 15 Cr. L. J. 63, following Purushottamu v. Municipal Council of
Rallary, 14 M. 407. ^

(f) Janaki Prasad, 43 A. 233 : 19 A. L. J. 106 : 60 I. C. 322 ; 22 Cr, L. J. 210,

SEC. 354 ]

CRIMINAL FORCE AND ASSAULT

643

“‘Woman * is explained to denote a female human being ofany age. (See
s. 10). An assault or use of criminal force when it is committed with the intention
to outrage female modesty, or with the knowledge that it is likely to have that
result is severely punished.

“ The phrase 4 to outrage modesty * is indefinite ; and it would be an outrage
to the modesty of one woman to do her what would be thought nothing by another.
The taking indecent liberties with females will be punished by this section, but
the provision is not confined to such cases. In a countiy, where many women con-
sider themselves as dishonoured by exposure to the gaze of strangers, many gross
insults of a different kind, such as a man rudely thrusting his head into the covered
palanquin of a woman of tank, may well be deemed to outrage female modesty.
There is a sufficient discretion allowed in awaiding punishment (which may extend
to two years or may be a nominal fine) to admit of a due regard being paid to a
variety of conditions and circumstances, making the same act less offensive to one
person than to another.

“Assaults committed with the intention to commit rape are not, it seems,
here contemplated.

“ Mere words or gestures of insult offered to a woman are made punishable by
s.509" (g).

This section punishes indecent assault on a woman with intent to outrage
her modesty. Graver offence of this kind culminating in rape is punished under
a. 376, infra , and in some unsuccessful attempts at rape the accused may be found
guilty of committing an offence under this section.

Scope Intention is the gist of the offence. Outraging modesty has nowhere
been defined in the Code but the framers of the Code observe

44 The phrase 4 to outrage modesty * is indefinite ; and it would be an outrage
to the modesty of one woman to do to her what would be thought nothing of by
another. A kiss that would be highly resented by a lady might be no affront to the
maid “ (h).

44 In order to constitute an offence under s. 334, it is necessary that the assault
or use of criminal force to a woman must be used with intent to outrage or knowing
it to be likely that he would thereby outrage her modesty *’ (i).

Procedure : — Cognizable — Warrant-Bailable — Not compoundable — T r iable
by Presidency Magistrate or Magistrate of the first or second class.

For the defence to succeed , the accused must establish by cross-examination
or by adducing defence evidence that the character of the prosecutrix is bad to
show that the Court cannot place any reliance on her statement, although it is
desirable that the prosecutrix should be corroborated in her statement by reliable
independent evidence. Often the crime is committed in secret and if the Court
believes the prosecutrix it can convict an accused.

It is very easy for the prosecution to prove a charge under this section and it
is very difficult lor the defence to rebut it. The prosecution story should be sup-
ported by independent evidence, surrounding circumstances or conduct (j).

Melville, J., observed : 44 We believe that in this country indecent assaults
are often magnified into attempts at rape, and even more often into rape itself,
and we think that a conviction ot an attempt at rape ought not to be arrived at, unless

(g) Morgan and Macpherson ' Penal Code * p. 311.

(h) First Report, S. 413.

fi) Per Cunning, J., in Government of Assam v.Kantila Chutiya , (1927) 31 C. \V. N.
683; Aft- Champa Parsin t (1927) 108 I. C. 81 : A. I. R. (1928) Pat. 3 20,

(j) Nga Aung Dwe , (1894) U. B. R. ?29,

644

THE INDIAN PENAL CODE

[CHAP. XVI

the Court be satisfied that the conduct of the accused indicated a determination to
gratify his passions at^ all events, and in spite of resistance.'* The Court there
altered the conviction into one under this section (k).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of- , at- ,

assaulted (or used criminal force to) XY t a woman intending to outrage (or knowing
it to be likely that you would thereby outrage) hei modesty and thereby committed
an offence punishable under r. 354 of the Indian Penal Code, and within my cogni-
zance.

And I hereby direct that you be tried on the said charge.

Outraging the modesty of a woman : — It depends upon the habits and
customs of the people no less than upon the age of the woman and it also depends
upon what the woman assaulted feels. Thus “ a kiss that would be highly resented
by a lady might be no affront to a maid ” (1).

The pulling of a woman by the arm coupled with a request for sexual inteticouse
amounts to an offence under this section. Knowledge that modesty is likely to be
outraged is sufficient to constitute the offence without any deliberate intention
of having such outrage alone for its object (m).

In England it has been held to be a case of assault where a master took indecent
liberties with a female scholar without her consent, though she did not resist (n),
or where a medical man unnecessarily stripped a female patient naked, under the
pretence that he could not otherwise judge of her illness, when he hinruelf took off
her clothes (o). A school-master who places his hands indecently on the person of
a female pupil, is guilty of an indecent assault, although the pupil is thirteen years
of age, and does not make any actual resistance (p).

Such an assault must be without the consent of the woman : — If a man

has connexion with a woman, she consenting under the belief that it is her husband,
this is not rape, although it be a fraud on the part of the man, but it is an assault ;
and the fact that there was no resistance on her part makes no difference as the fraud
is sufficient to make 'it an assault ; and if, on a trial for rape, the party be convicted
of such assault, he may be sentenced to hard labour (q).

* intending to outrage or knowing it to be likely that he would thereby
outrage her modesty * An offence of indecent assault on a woman cannot be
complete unless there is intention or knowledge that the woman's modesty will be
outraged (r).

Where the accused took off a girls clothes, threw her on to the ground and
then sat down beside her and he said nothing to her nor did he do anything more
to her, the Punjab Chief Court held that the accused commited an offence under this
section and was not guilty of an attempt to commit rape (s).

(k) Shankar, (1881) 5 B. 403.

(l) First Report, s. 413.

(m) Ssna Shetty , (1890) 1 Weir 347.

(n) Reg. v. Day, (1841) 9 C. and P. 722.

(o) Peter Rosinski, (1824) 1 Mood. Cr. C. 19. *

(p) Mo Govaran, (1852) 0 Cox. 04. A *

(q) Williams , (1838) 8 C. and P. 280 ; Bornard Saunders , (1838) SC, and P 205

(r) Fatima v. Captain Me . Comtek , 0 Bur. L. T. 21 (F. B.) : 19 I C 149* 14
Cr. L. J. 149; Govt, of Assam V. Kantila Chutia, (1927) 31 C. w N. 583

(s) Nuna, (1912) P. L. R. No. 110 of 1912 : 10 P. W* R, 1912 • 15 I C 809-

13 Cr. L. J. 469. ’

sec. 355 ]

CRIMINAL FOfeCE AND ASSAULT

645

The Bombay High Court held in a case where the accused took a girl six years
old to his room and made her lie down and he lay on her when the girl screamed and
ran away, that the facts amounted to an offence under this section and it was held
further that the girl though young was a * woman * for the purposes of this
section (t).

Love with the woman does not excuse die crime : — The fact that A is
in love with B and ia jealoua of C does not authorise him to pull B's hair and hand.
An assault of this kind made in the presence of several persons is calculated to out*
rage the woman's modesty and is punishable under this section (u).

Indecent assault on prostitutes : — As the section rnn templates indecent
assault on 4 any woman ' the section applies to the case of prostitutes, although
it would be always a question of fact whether or not such act was not done with her
leave and license. If the Court does not believe the prosecutrix the case is bound
to end in an acquittal.

355. Whoever assaults or uses criminal force to any person,
intending thereby to dishonour that person,
force^dth intent n to dS otherwise than on grave and sudden pro-
honour person, other- vocation given by that person, shall be
vocation" °" pr ° punished with imprisonment of either

description for a term which may extend to
two years, or with fine, or with both.

Assault— s. 35 1 . Person— s. 1 1 . Criminal force— s. 350.

This section provides punishment for * assault ’ or ‘ criminal force ’ commit-
ted on any person with the intention of dishonouring that person, e.g., threatening
to shoe-beat one, or kicking or spitting on a person or pulling one’s nose, etc.

Procedure : — Not cognizable— Summons — Bailable — Compoundable— Triable
by Presidency Magistrate or Magist^te of the first or second class.

Charge s — I (name and office of Magistrate, etc.) hereby charge you (name
of accused ) as follows

That you, on or about the -day of , at — ,

assaulted (or used criminal force to) XY intending by such assault (or criminal
force) to dishonour the said XY and thereby committed an offence punishable under
s. 355 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Separate sentence : — See notes under s. 71, supra.

In order to catry out a sentence imposed by a private panchayat upon the
complainant, the accused blackened the complainant’s face and made him ride a
donkey round the village and were convicted under Ss. 147 and 355 and separate
sentences were passed. The Lahore High Court held that the acts committed by
the accused f ormed part of the same transaction and therefore separate convictions
and sentences under Ss. 146 and 355 were illegal (v).

(t) Jatik Mahadeo, (1912) 14 Bom. L. JR. 961 : 17 I. C. 794 : 13 Cr. L. J. 808.

(u) Mittia So V. Nga Than. 4 Bur. L. T. 268 : 13 Cr. L. J. 63 : 13 I. C. 339.

(v) Kavam Singh, (1922) 67 I. C. 729: 23 Cr. L. J. 467 : A. I. R. (1023) Lah.
91, following Lai khan, (1918) P. L. K. No. 139 of 1918: P. R. No. 6 of 1918: 19
Cr. L. J. 336 : 44 I. C. 362.

646

fHE INDIAN PENAL CODE

[CHAP. XVI

356. Whoever assaults or uses criminal force to any person,
Assault „ OUM in «ttempting to commit theft on any

force in attempt to cbm- property which that person is then wearing
mit theft of property or carrying, shall be punished with imprison-
ment of either description for a term which
may extend to two years, or with fine, or with both.

Attempt— s. 511. Theft— s. 378.

This section punishes pick-pockets who assault or use criminal force in attempt-
ing to commit theft of propel ty carried on one's person.

This section applies to cases of using criminal force in an attempt to commit
theft and not to those cases in which theft has been actually committed fw).

Procedure Cognizable— Warrant — Not bailable — Not compoundable —
Triable by any Magistrate.

Charge : — 1 ( name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of — , at

assaulted (or used criminal force) to XY in attempting to commit theft of certain

property to wit , which the said XY was then wearing (or carrying)

and thereby committed an offence punishable under s. 356 of the Indian Penal
Code, and within my cognizance.

And I hereby direct that you be tiied on the said charge.

357. Whoever assaults or uses criminal force to any person,

Assault or criminal ln attempting wrongfully to confine that
force in attempting person, shall be punished with imprisonment
a r °crfon ly to confine of either description for a term which may
a ° ° extend to one year, or with fine which may

extend to one thousand rupees, or with both.

This section punishes assault or use of criminal force in attempting wrongfully
to confine a person.

Procedure i — Cognizable — Summons — Bailable — Compoundable when per-
mission is given by a Court before which the prosecution is pending (x)— Triable by any
Magistrate.

Charge I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows:—

That you, on or about the day of at ,

assaulted (or used criminal force) to XY, in attempting wronfully to confine the said
XY and thereby committed an offence punishable under s 357 of the Indian Penal
Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

358. Whoever assaults or uses criminal force to any person
Assault or criminal on grave and sudden provocation given

force oo grave provoca- by that person, shall be punished with simple
tioD ' imprisonment for a term which may extend

* (w) Mukun t (1865) Rat. Unrep. Cr. C. 3. *

(x) These words were substituted for " Not compoundable " by Act XVIII of
1923.

SECS. 359-60 3 KIDNAPPING and ABDUCTION 64 1

to one month, or with fine which may expend to two hundred
rupees, or with both.

Explanation. — The preceding section is subject to the same
explanation as section 352.

This section is an attenuated form of the offence described in 8. 352.

* The preceding section v in the Explanation is evidently a mistake for ' this
section.'

Procedure : — Not cognizable — Summons — Bailable— Compoundable— Triable
by any Magistrate and may be tried summarily.

Of Kidnapping , Abduction , Slavery and Forced Labour.

S. 359 says that kidnapping is of two kinds fl) kidnapping from British India
and (2) kidnapping within British India from lawful guardianship. S. 360 defines
the first kind of kidnapping and s. 361 defines the second kind of kidnapping
mentioned in s. 359. S. 362 defines 4 abduction *, s. 363 provides for punishment
for * kidnapping* of both kinds as defined in Ss. 360 and 361. S. 364 punishes
kidnapping or abduction when accompanied with the intention to murder the
person thus kidnapped or abducted. S. 365 punishes kidnapping or abduction
with intent secretly and wrongfully to confine that person. S. 366 punishes kid-
napping or abducting any woman with intent that she may be compelled to mairy
any person against her will or she may be forced or seduced to illicit intercourse.
S. 367 punishes kidnapping or abduction when the intention of the accused is to
subject the victim to grievous hurt, or slavery or to the unnatural lust of any person.
S. 368 punishes a person for wrongfully concealing or keeping in confinement kid-
napped or abducted person. S. 369 punishes kidnapping or abducting any child
under ten years with intent to steal from the person of such child.

In short Ss. 359 to 369 deal with the offence of kidnapping or abduction
either in ordinary stages or when accompanied by aggravating circumstances.

Ss. 370 and 371 deal with * slavery.' S. 372 deals with selling or disposing of
any minor under the age of eighteert years for the purpose of prostitution. S. 373
deals with buying, hiring, etc., any minor for the purpose of prostitution, s. 374 deals
with unlawful 'forced labour.'

359. Kidnapping is of two kinds : kidnapping from British

India, and kidnapping from lawful guardian-

Kidnapping. ship .

360. Whoever conveys any person beyond the limits of

British India without the consent of that
tishi^a^ 118 * 10 ” 118 " person. or of some person legally authorised
to consent on behalf of that person, is said
to kidnap that person from British India.

British India — s. 15. Consent— s. 99.

Kidnapping from British India : — This is what is defined in this section,
and s. 363 prescribes punishment for this offence as also for the offence of ' kid'
napping from lawful guardianship ’ dealt with by the next section.

This sectionrequires that the accused — (a) conveyed any person, ( b ) beyond
the limits of British India, (c) without the consent of (i) that person or (it) of some
person legally authorised to consent on behalf of that person.

648 THE INDIAN PENAt CODE t CHAP *

This implies that a person may be kidnapped from British India, whether he
or she is an adult or a mihor.

Without th« consent of that person t— A person kidnapping a girl of fifteen
years of age out of British India with her consent for the purpose of seducing her to
illicit intercourse is not guilty of an offence under s. 366 (y).

361 . Whoever takes or entices any minor under fourteen
years of age if a male, or under sixteen years
JiSSaSr** °< » ? fern* .« «»y person of im-

sound mmd, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or person
from lawful guardianship.

Explanation. — The words ‘ lawful guardian * in this section
include any person lawfully entrusted with the care or custody
of such minor or other person.

Exception. — This section does not extend to the act of any
person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be
entitled to the lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.

Analogous law : — This section deals with the offence of kidnapping of a
minor under 14 years of age and the analogous provision is to be found in English
law where the offence is designated as ' Child-stealing.’

The corresponding provisions of the English Statute 24 and 25 Viet., c. 100, Ss. 55
and 56 run thus : —

“ Sec. 55. — Whosoever shall unlawfully taki or cause to be taken any unmarried
girl, being under the age of sixteen years, out of the possession and against the will
of the father and mother, or of any other person having the lawful care of charge of
her, shall be guilty of a misdemeanour and being convicted thereof shall be liable
at the discretion of the court, to be imprisoned for any term not exceeding two years
with or without labour.

“ Sec. 56. — Whosoever shall unlawfully , cither by force or fraud, lead or take
away or decoy or entice away or detain, any child under the age of fourteen years,
with intent to deprive any parent, guardian, or other person having the lawful care
or charge of such child or the possession of such child or with intent to steal any
article upon or about the person of such child to whomsoever such article may belong,
and whosoever shall, with any such intent, receive or harbour any such child, knowing
the same to have been, by force or fraud, led, taken, decoyed, enticed away or detained
as in this section before mentioned, shall be guilty of felony and being convicted
therefor shall be liable at the discretion of the court, to be kept in penal servitude for
any term not exceeding seven years, and not less than five years, or to be imprisoned
for any term not exceeding two years, with or without hard labour, and if a male
under the age of sixteen years, with or without whipping :

“ Provided that no person who shall have claimed any right to the possession
of such child or shall be the mother or shall have claimed to be the father of an iUegiti*
mate child, shall be liable to be prosecuted by virtue thereof on account of the getting
possession of such child, or taking such child out of the possession of any person
hayih|^he lawful charge thereof. ”

(y) ffaribhai Dada , (1018) 42 B. 39l : 20 Bom. L. It, 372.

KIDNAPPING AND ABDUCTION

649

SEC. 361 ]

So it will be seen that this section is virtually ihe same as the corresponding pro-
visions of the English law with this difference that the English statute contains the
cxpiession * unlawfully.* The word ‘ unlawfully * does not occur in s. 361 but as
the section is to be read subject to * general exceptions * the omission of this word
does not make any distinction between the English law and the Indian law .

For an offence under s. 363 where the minor is a girl, the prosecution has to esta-
blish the following facts: —

(1) A taking or enticing away of the girl,

(2) that the girl's age was less than 16,

(3) that she was in the keeping of a lawful guardian ; and

(4) that the lawful guardian did not consent to her removal (i).

Essentials of the offence of kidnapping : —Evidence that the minor was

taken out of the keeping of its lawful guardian without his consent is necessary to
establish the offence of 4 kidnapping * (a). To bring a case under this section
there must be a taking or enticing of a child out of the keeping of the lawful guardian
without his consent (b). The Patna High Court by a Full Bench decision has
held that this section and the Explanation appended here are express and exhaustive
in their terms, and in order to constitute the offence of kidnapping or abduction there
must be in fact duly, properly and legally proved a taking or enticing away of a minor
from the custody of the following persons :

(1) The Natural Guardian.

(2) The Legal Guardian, if the natural guardian be dead or

(3) A person lawfully entrusted with the care and custody of a minor (c).

4 takes or entices any minor of either sex under the age of fourteen
if a male, or under sixteen if a female, or of unsound mind 9 s— In case of
minors about the age of 14 or 16 according as they are boys or girls the age must be
strictly proved and the accused cannot successfully take the plea that he did not
know the boy or the girl to be under the age of consent (d). So Maule, J., observed :
44 The law throws a protection about young persons of the sex and within the age
specified by the statute. It has been determined by the Legislature that at a parti-
cular age young females are not abl$ to protect themselves, or give any binding
consent to a matter of this description. It is therefore quite immaterial whether
the girl abducted consents or not ; if her family, that is to say those who under the
statute may lawfully have the possession and control over her, do not consent to her
departure, the offence is completed (e). In the leading case on the subject — where the
prisoner was convicted of unlawfully taking an unmarried girl under the age of six-
teen out of the possession and against the will of her father and it was proved that
the prisoner did take the girl and that she was under sixteen, but that he bona fide
believed and had reasonable ground for believing that she was over sixteen, it was
held that the latter fact afforded no defence, and that the prisoner was rightly con-
victed (f).

The abduction of a minor girl under 16 years of age out of the custody of her
lawful guardian is punishable under this section. It is not necessary to such a con-
viction that the abduction was forcible (g).

“(,) HaJbibulla , (1912) 18 1. C. 653: 14 Cr. L. J. 93: 15 O. C. 351.

(a) Fatima v. Captain McConnic, (1912) : 6 Bur. L. T. 21 (F. B.) : 19 1. C
149 : 14 Cr. L. J. 149.

(b) Gunder Singh , (1865) 4 W. R. (Cr.) 6.

(c) Mussamal Kesar, (1918) 4 P. L. J. 74 (iv B.) : 20 Cr. L. J. 101 : 49 i. C.
481 : A. I. R. (1919) Pat. 33.

(d) Christian olifier, (I860) 10 Cox, 402 ; Mycock;(\%U) 12 Cox. 28

(c) Kipps (1850) 4 Cox. 167.

(f) Prince , (1876) L. R. 2 C. C. R. 164 : 44 L. J. (M. C.) 122.

(g) Moodhoo Paul f (1806) 3 W. R (Cr.) 9.

650

THE INDIAN PENAL CODE

[CHAP. XVI

A child under ten year* <#age is prima facie subject to guardianship and any
one removing such child without permission properly obtained takes the risk of such
act upon himself ; the fact of having omitted to inquire whether the child had a guard-
ian or not, is no defence to a charge of kidnapping a minor from lawful guardianship
under this section (h).

Taking a minor t— In an English case, Wightman, J., said to the Jury : " For
this purpose a taking by force is not necessary ; it is sufficient if such moral force was
used as to create a willingness on the girl's part to leave her father's house. If
however the going away was entirely voluntary on the pait of the girl, the prisoner
would not be guilty under the statute ” (i).

In order to constitute the offence of abduction it is not nece$<aty that the git!
should be taken by force, either actual or constructive or to be taken out of the
actual possession of the parent or guardian. It is enough if she is pursuaded by the
prisoner to leave her home and the control of the parent continues down to the time
of the taking (j). Bramwell, B., in another case said : " I am of opinion that if a
young woman leaves her father's house without any persuasion, inducement or
blandishment held out to her by a man, so that she has got fairly away from home,
and then goes to him, although it may be his moral duty to return her to her parents’
custody, yet, his not doing so is no infringement of this Act of Parliament, for the
Act does not say that he shall restore her, but only that he shall not take her away.
It is, however, equally clear that, if the girl, acting under his persuasion, leaves her
father's house although he is not present at the moment, yet, if he avails himself
of that leaving which took place at his persuasion, that would be a taking her out
of her father's possession, because the persuasion would be the motive cause of her
leaving. Again, although she may not leave at the appointed time, and although
he may not wish that she should have left at that particular time, yet if finding she
has left, he avails himself of that to induce her to continue away from her father’s
custody, in my judgment, he is also guilty, if his persuasion operated on her mind,
so as to induce her to leave " (k).

In order to support a charge of taking an unmarried girl under the age of six-
teen out of the possession and against the will of her parents or guardians, it must
be shown that the prisoner took some active«steps, by persuasion or otherwise, to
cause the girl to leave her home ; if the suggestion to go away with the prisoner
came from the girl only, and he took the mere passive pait of yielding to such
suggestion, he is entitled to an acquittal (1).

Taking t —' The word ‘ taking' in this section is nothing but physical taking (m).
‘Taking’ is not confined to mere physical taking. Theie is such a taking as is
indicated in the common expression ‘ If you will come along, I shall take you ’ (n).

The consent of a kidnapped person is immateiial and it is not necessary for a
conviction under this section that the taking or enticing should be shown 1 6 have
been by means oHorce or fraud (o). The words of the English statute 9 Geo. 4,
c, 31 20 being 4 unlawfully take* it is not necessary to show a trespass or

anything of that nature in the taking other than the act of taking (p).

(h) Umed Buksh, (1 878} 3 B. 1 78.

(i) Handley \ (1858) 1 F. and F. 50.

(j) Manktelow, (1853) 6 Cox. 143.

(k) Christian 0 lifter, (1860) 10 Cox. 402.

(J) James Jarvis , (1902) 20 Cox. 249.

(m) Jaweennath , (19 14) I O. L J. 330 : J5 Cr. L. J. 030 : 25 I. C. 038.

(n) Abdut Sathar Khan, 11927) 54 M. L. J. 450: A. I. R. (1928) Mad. 556.

S Bkungee Ahur, (1855) 2 W. R. (Cr.) 5; Sookee, (1807) 7 W. R. (Cr.) 30;

Bugea, (1865) 2 W. R. (Cr.) ’01 ; Koordan Singh, ft 865) 3 YV. R. (Cr.) 15,

(p) Fraser , (1801) 8 Cox. 446.

SEC. 361 ]

KIDNAPPING AND ABDUCTION

651

Is kidnapping a continuing offence ? : — ft is no answer to an indictment
under Statute 9 Geo 4, c. 31, s. 20 for taking away a girl under the age of sixteen
years to show that the girl alleged to be abducted went voluntarily from her home,
in consequence of the persuasions of the prisoner, to a place at some distance, where
she met the prisoner and when she went away with him without any reluctance (q).

The offence of kidnapping a person is complete when he is actually taken out of
the custody of the lawful guardian. Under the Indian law no one is liable for being
an accessory after the fact (r). The offence of kidnapping is not a continuing
offence : it is complete the moment the minor is removed from the keeping of the
lawful guardian (s).

The offence of kidnapping from lawful guardianship is complete as soon as the
minor is actually removed ftom the home of the guardian. It is not an offence
continuing so long as she is kept out of such guaidianship (t). The offence of kid-
napping is complete when the minor is actually taken from lawful guardianship, and
it is not an offence continuing as long as the minor is kept out of such guardianship (u).
The question as to when an act of kidnapping is complete is a question of fact to be
determined according to the circumstances of each case (v). The Allahabad High
Court has held that the offence is not a continuing one (w). The same High Court
in a later case followed these cases and held that the offence of kidnapping is com-
plete as soon as the minor is actually taken out of the custody of her guardian (x).
Where A enticed a girl to come out of the house to the road and then to the motor
car in which B was sitting who took the car to the village in order that he might
kidnap her. held , B committed the offence under s. 363 by driving her off in the
motor car, but the offence was not complete when she entered the car (y). It
seems the Full Bench decision of the Calcutta High Court in Nemai's case (z) fol-
lowed in Nanhak's case (a) is the correct view.

Who was at the time in the keeping of the lawful guardianship out of
the keeping of the lawful guardian : — The person taken must have a lawful
guardian and at the time of the alleged offence of kidnapping he or she must be in
the keeping of that guardian. To bring a case under s. 361 of the Penal Code there
must be a taking or enticing of a child out of the keeping of the lawful guardian
without his consent (b). The expYession ‘ taking out of the lawful guardian *
must signify some act done by the accused which may be regarded as the proximate
cause of the person going out of the keeping of the guardian, or in other words, an
act but for which the person would not have gone out of the keeping of the guardian
as he or she did (c).

Where a minor girl was driven from her parental roof and was found some
days hence, in the company of the accused, the offence of kidnapping was not esta-
bished (d).

(q) George Kipps, (1850) 4 Cox. 167.

(r) Rakhal Nikari , (1897) 2 C. W. N. 81.

(s) Nanhak Sao, (1926) 5 P. 536.

(t) Nemai Chottoraj , (1900) 27 C. 1041 (F. B.) (1046).

(u) Chekutty, (1902) 26 M. 454 (455).

(v) Koochri , (1912) 7 S. L. R. 17 ; 20 I. C. 599 following Nimai Chottoraj , (1900)
27 C. 1041 ; Gurdit Singh , (1916) P. L. R. No. 55 of 1916 : 34 I. C. 652.

(w) Ratndin, (1896) 18 A 350, following Surja , 8 B. 312 ; Ram Sunder, (1896)
19 A. 109.

(x) Tika, (1903) 26 A. 197.

(y) Rekha Ray , (1927) 6 P. 471.

(z) (1900) 27 C. 1041 (F. B.).

(a) (1926) 5 P. 536.

(b) Gunder Singh , (1865) 4 W. R. (Cr.) 6.

(c) Abdul SatharKhan , (1927) 54 M. L. J. 456 : A. I. K. (1928) Mad. 585.

(d) Pandyaram Sastrulu , (1912) M. W. N. 538.

652

THE INDIAN PENAL CODE

[CHAP. XVI

* out of the keeping #1 the lawful guardian The legislature has
advisedly preferred this phrase to the word ‘ possession ’ which frequently recurs
in the Code in connection with inanimate objects.* The word ‘ keeping ‘ connotes
the fact that it is compatible with independence of action and movement in the
object kept. It implies neither prehension nor detention but rather maintenance,
protection and control, manifested not by continual action but as available on
necessity arising. And this relation between the minor and guardian is certainly not
dissolved so long as the minor can at will take advantage of it, and place herself
within the sphere of its operation (e).

In case of a girl whose parents are dead and who is below 16, her brother,
though not over 18 years of age, is deemed to be her lawful guardian (f).

Mother marrying an outsider — Daughter under the custody of the mother :~If a
Mahomedan mother marries a person who is an outsider so far as the family is
concerned, she loses her right to be the lawful guardian of her minor daughter. If
her minor daughter is taken away from her custody, the accused cannot be con-
victed under this section (g).

The Explanation to this section extends the accepted definition of ' lawful
guardian ’ under the civil law. This precaution to extend the meaning of * lawful
guardian * was taken to preclude persons other than the civil law guardians from
raising the technical plea that the legal relation of guardian and ward did not exist
between the minor and the person from whose custody the minor may happen to be
taken away. The person in temporary charge of the minor cannot, however, take
advantage of this definition. Cousin of a minor Hindu girl has no absolute right
to her custody simply because he happens to be the nearest male major relation of
the girl. It would be otherwise had he been so appointed by a Court or the
brotherhood or had he assumed such responsibility without any objection by the
brotherhood or blood relations (h).

The husband of a Hindu gill of fifteen is hei lawful guardian ; and if the father
of the minor takes away the girl from her husband without the latter’s consent, such
taking away amounts to kidnapping fiom the lawful guardianship even though the
father may have had no criminal intention in so doing (i).

Under the English law the father of an ‘illegitimate child was held to have
by lawful ways and means the keeping of the child (j). Under Hindu law the father
is the lawful guardian of the child.

In determining who is to have the custody of and control over an illegitimate
child, the Court in exercising its jurisdiction with a view to the benefit of the child
will primarily consider the wishes of the mother (k).

4 lawfully entrusted 9 The mother of an illegitimate child is its piopcr
and natural guardian during the period of its nurture. And where the mother,
on her death-bed, entrusts the care of such child to a person, who accepts the trust
and maintains the child, such a person is * lawfully entrusted ’ with the care and
custody of the minor within the meaning of s. 361 (1). A mothe; cannot have a right
to the custody of her legitimate children adversely to the father. Where the
Hindu mother left her husband’s daughter with her infant daughter and married the

(e) Jetha Nathoo, 6 Bom, L. R, 785, followed in Karam Singh, (1916) 14 A. L. J.

792.

(i) Mekr Hussain Shah, A. I. R. (1929) Lah. 835.

(g) Harbausha Mahatnmed v. Jhapuran Bibi, (1929) 51 C. L. J. 476.

(h) Sital Prasad, 18 A. L. J. 64 : 21 Cr. L. J. 50 : 54 I. C. 402.

(i) Re. Dhuronidhur Chose, 17 C. 298.

(j) I Hawk P. C. 128.

(k) Per Lord Iierschell, in Bavnardo v. Hugh, (1891) A. C. 388 p. 398.

(l) P$mantle h (1881 * C. 971.

SEC. 361 ]

KIDNAPPING AND ABDUCTION

663

daughter without the fathers consent, it was held that her act amounted to taking
out of the keeping of the lawful guardian (m).

Where an orphan girl of fourteen years attached herself first to one person,
and then to another and finally became betrothed to the son of the latter from
whom she was enticed away by the accused, it was held that the conviction of the
accused could not stand as the person from whom the accused had taken the girl
was in no sense her ‘ lawful guardian * or lawfully entrusted with her care (n).

Under the Mahomedan law the husband of a Mahomedan girl who has not
attained puberty is not the lawful guardian of her peison. Her lawful guardian is
ordinarily, her mother, and if the mother is dead, the mother’s mother (o). Under
the Mahomedan law, the mother is entitled even as aganst the father to the custody
of her sons up to seven years, and of her daughters up to puberty accordng to the
Sunni School of Law, and up to seven years, according to the Shia School (p).
Under the Mahomedan law the mother is entitled to the custody of her daughter
in preference to the husband, until the age of puberty. The removal of an im-
mature Mahomedan girl of eleven or twelve from the house of her brother-in-law
in whose charge her husband had left her, by a third person acting at the instance,
and under the instigation of her mother is not a taking from ‘ lawful guardianship *
and does not amount to kidnapping (q).

Where the plaint in a divot ce suit did not contain a prayer for custody of the
child and there was no subsequent application therefor by the husband, but the
District Judge passed an ex parte decree nisi and included in it, as one of its terms,
a direction without notice to the wife to deliver her child to the fathei and sub-
mitted the decree to the High Court for confirmation ; and where the father subse-
quently obtained custody of the child but she took it away from his house, and was
charged with kidnapping, it was held that she had committed no offence (r).

The fact that a mother allowed her minor girl to be in the custody of a servant
or friend for a limited purpose does not determine the mother’s rights as guardian
or her legal possession for the purpose of the criminal law, and if an accused kid-
naps her from the possession of such servant or friend, he is guilty of an offence
under s. 366 of the Penal Code (s).

A minor brother cannot be the gaardian of his sister and cannot therefore be a
complainant in respect of an offence under this section against his sister (t).

Meaning of lawful guardian s— The term ‘ lawful guardian * does not include
a person who has himself gained possession of the minor by committing an offence
under this section, .but it does include a person with whom the minor resides
by the express or impiled consent of those possessing higher legal rights (u).

The section and the Explanation appended thereto are express and exhaustive
in their terms ; and to constitute the offence of kidnapping or abduction there must

(m) Prankrishna Sayma, (1882) 8 C. 969.

(n) Buldeo, (1870) 2 N. W. P. 286, See also Kesar , (1918) 410. L. J. 4 (F. B.).

(o) Darajuddin Akanda , (1923) 27 C. W. N. 531 : 37 C. L. J. 329 : 73 I. C, 936
24 Cr. L. J. 712 : A. I. R, (1923) Cal. 672.

(p) Mulla's 'Mahomedan Law'; Raja Begum v Nabob Reja Hossain, (1865)
2 W. R. (Civil) 70; Hamid Alt v. Imtiazau , (1878) 2 A. 72 ; Moyna Bibi V. Banka
Behari t (1903) 29 C. 473.

(q) Karban, (1904) 32 C. 444.

(r) Borthwick v. Borthwick , (1913) 41 C. 714 : 18 C. W. N. 484 . 15 Cr. L. J.

72 ; 22 I. C. 424.

" ’ (s) Baisand Maway, (1921) 3 Lah. 2J3 : 23 Cr. L. J. 588 ; 68 I. C. 620 : A. I. It.
(1922) Lah. 380.

(t) Karura v. Mam Rai , (1921) 3 Lah. L. J. 588 : 23 Cr. L. J. 479 : 67 1. C.

831 *

(u) Fatti, P. R. No.*7 of 1911 : P. L. R. No. 164 of 1911 : 31 P. W. R 1911 ;

12 Cr. L. J. 221 : 10 I. C v 27.

654

THE INDIAN PE#AL CODE

[CHAP. XVI

be in fact duly, pioperiy and legally proved a taking or enticing away of a minor
from the custody of the following persons : (a) the natural Guardian ; (b) the legal
guardian, if the natural guardian be dead ; or (c) a pfison lawfully entrusted with the
care and custody of a minor (v).

* lawful guardian 9 The Explanation to s. 361 extends the accepted defi-
nition of the words * lawful guardian * under civil law to preclude persons other
than the civil law guardian from raising the technical plea that the legal relation of
ward and guardian did not exist between the person kidnapped and the person
from whose actual custody the minor is taken away. But, as against a person, who
in fact, is the civil law guardian of the minor, mere de facto guardianship cannot
be set up so as to convict the real civil law guardian of an offence under $. 361 (w).

A de facto guardian of a minor whose guardianship is not against the wishes of
the de jure guardian, is a lawful guardian within the meaning of s. 363 (x).

The mere fact that the minor leaves the protection of her guardian does not
put her out of the guardian’s keeping. But if the minor abandons her guardian with
no intention of returning, she cannot be held to continue in the guardian’s
keeping (y).

Taking a girl from the guardianship of her maternal uncle even when the
mother was present with the accused when he was leading the girl to a railway
station and consented to the gill being so taken away did not amount to an offence
under s. 366 as the mother had taken custody of the girl as her guardian ( 2 ).

Lawful guardian of a Hindu widow : — Where the widow who was residing
with her husband's mother with the consent, express or implied, of her deceased
husband’s brother, held, the husband’s mother was the lawful guardian of the girl
for the purposes of this section (a)

Meaning of keeping — temporary absence ' The word ' keeping ’ in s. 363
connotes the fact that it is compatible with independence of action and movement
in the object kept. It implies neither prehension nor detention, but rather main-
tenance, protection and control, manifested nojby continual action but as available
on necessity atising.

The protection and control of the guardian is not put an end to by the fact
that the minor has temporarily left the guardian’s house. Where a minor girl, who
lived with her husband, left her house in consequence of a beating and was wan-
dering about in the fish market when she was met by the accused who took her away,
it was held that the accused was guilty of kidnapping (a 1 ).

Girl irioen out of the house— no offence of kidnapping .—Where a minor girl
was driven out from her parental roof and some days afterwards she was found in
the company of the accused, the Madras High Court held that the offence of
kidnapping was not committed (b).

35

(v) MusammatKesar, (1918) 4 P. L. J. 75 (F. B.) at pp. 84 and 85.

(w) Saharah Muhammad v. Kamizuddin Muhammad (1930) 58 C 807 •

C. W. N. 195, following Sital Prasad, (1918) 42 A. 140. ‘

(x) Velagupudi, (1911) 10 I. C. 281 : 12 Cr. L. J. 239 (Mad.).

(y) Valliant v. Mrs. Eleazar, (1924) 30 C. W. N. 215 (217) : 20 Cr L T 977 •

A. I. R. (1926) Cal. 467. 1 ' - ‘ * 77 *

( 2 ) In re. Natesa Padayachi, 27 I. C. 909 : 16 Cr. L. J. 237 (Mad )

Cr 78?! 3lTc *80 r '* e * - " i PWRl Na 43 of 19,5 : No. 27 of 1918 : 16

(al) Manshomal Deumal, (1912) 6 S. L. R. 71 : 13 Cr. L, J 736 • 16 I C 768
(b) Pandyram Saslrulu, (1912) M. W. N. 538 : )3 Cr. J*. J. 598 : 16 f,‘ C. 166.

sec. 361 ]

KIDNAPPING AND ABDUCTION

655

Taking away out of the keeping of the lawful guardian— Where a
minor girl by a pre-arrangement with the accused left the house of her parents of
her own accord and met the accused at a place appointed and eloped with him, it
was held that the accused was guilty of the offence (c). Where a person accused
lived with a girl, who left her lawful guardian of her own free will, it was held that
he did not commit an offence under s. 366 of the Code as he did not take
or entice her away from her legal custody (d). These decisions are exactly similar
to the English decisions although under the English statute the offence requires
the taking of a minor out of the possession and against the will of the lawful guardian.
In Indian law the expression used is * out of the keeping of the lawful guardian.’
Thus where the prisoner persuaded a girl under sixteen to meet him at a place two
miles from her father’s house where she lived, for the purpose of going with him
to America ; and she did so voluntarily, it was held that the accused was guilty of
abduction (e).

Enticing — involves that while the person kidnapped might have left the keeping
of the lawful guardian willingly, still the state of mind that brought about that
willingness must have been induced or brought about in the same way by the
accused (f).

4 under sixteen years, if a female ’ To support an indictment for the
abduction of an unmarried gill under sixteen years of age it is not necessary to prove
that the person who abducted her knew her to be under sixteen as the person who
does so is bound to ascertain her age, and if she turns out to be under sixteen, he
must take the consequences (g). Where a servant girl under sixteen years of age had
permission from her master to go and see her parents from Sunday to Monday
night and went to see them on the Sunday for a few hours only and then told them
(by previous arrangement with the prisonei) that she was going hack to her em-
ployment, instead of which she remained with the prisoner all night, and did not
return to her master’s employment, it was held that the girl being under the lawful
charge of the master and not of her father, the conviction could not be had for ab-
duction (h). Taking a girl under sixteen out of father’s possession has been held
to constitute an offence of abduction (i). It is no defence to contend that the
accused bona fide believed and had reasonable ground for believing thet the girl
was over sixteen (j). s

‘without the consent of such guardian Consent of the minor held to be
no defence : — The Calcutta High Court has held that the husband of a Hindu girl
of fifteen is her lawful guardian ; and if the father of the minor take*, away the girl
from her husband without the latter’s consent, such taking away amounts to kidnap-
ping from lawful guardianship, even though the father may have had no criminal
intention in so doing (k).

Where a minor runs away from lawful guardianship, the person with whom
he takes refuge is not 4 taking him ' within the meaning of s. 363 and the law does
not oblige him to return the minor to lawful guardianship. But if a grownup
person induces a minor to accompany him to a place without the consent of the
minors guardian and the guardian is thereby deprived for a period of the lawful

(c) Nga To Hla t (1907) U. B. R. (P. C.) 11.

(d) Ewa* Ali, (1915) 37 A. 624.

(e) Manktelow , (1854) 6 Cox. 143.

(f) Abdul Salhar Khan, (1927) 54 M. L. J. 456 : A. I. R. (1928) Mad. 585.

(g) Mycock, (1871) 12 Cox. 28, following Olifier, 10 Cox. 402.

(h) Miller, (1878) 13 Cox. 179. See also Henkeens, (1886) 16 Cox. 257.

(i) Reg. v. Timmins, (1860) 30 L. J. M. C. 45

(j) Prince, (1875) U R. 2 C, C. R. 154.

(k) Dkuronidhar Ghpse, (1889) 17 C. 298; Walli Muhammad , (1920) 06 I. C.

874: A. I.R. (1926) Lab* 877.

THE INDIAN PEJtfAL CODE

606

[CHAP. XVI

guardianship of the minor it is immaterial that the grownup person had no guilty
intention (I).

In a prosecution under s. 366, the fact that the girl concerned, at the time she
was enticed away from her home by the accused, had the intention of having illicit
intercourse with him is no defence to the charge under that section. The intention
of the accused is the material matter in the case (m). Where a minor girl leaves
her husband's home without any persuasion, inducement or blandishment held out
to her so that she gets fairly away from home and then goes to a man, the latter
cannot be deemed to have infringed the law, even if he does not restore her to her
lawful guardian (n). The essence of the offence of kidnapping is the taking of the
minor out of the keeping of the guardian without the guardian's consent. The
mere fact that the minor is a consenting paity is quite immaterial. A consent given
under a misrepresentation of fact is one given under a misconception of fact within
the meaning of s. 90 ( 0 ), but a contrary view has been held by the Allahabad High
Court, — where in a case a young woman under 16 years ran away from her father-
in-law's house out of her own free will, and stayed with the accused voluntarily,
it was held that the accused committed no offence either of kidnapping or abduc-
tion (p).

In the absence of evidence to the contrary, the presumption would be that the
* taking * was ‘ without the consent of such guardian.' If the accused takes the
plea that the minor was taken with the consent of the lawful guardian, the onus
will be on him to prove it.

Where in a case of wrongful confinement, it was shewn that the woman confined
never went willingly to the accused's home nor was a willing resident there, it was
held that they were rightly convicted (q).

The fact of the accused not inquiring at the time of removing a child from the
lawful guardianship is no defence to a charge of kidnapping under s. 361 (r).

Consent of guardian subsequently given For a conviction under s. 362
motive has nothing to do, consent given by the guardian aftci the commission of
the offence would not cure it (s).

Who can ^/dna/>? Father when not liable :* — A father, who did not remove his
daughter from the guardianship of any one but himself, is not liable for the offence
of kidnapping (t).

A person in carrying off without the consent of her lawful guardian a girl to
whom he was betrothed by his father, who after permitting her to reside occa-
sionally in his house, suddenly changed his mind and broke off the marriage, is
guilty of kidnapping (u).

Abetment of kidnapping .—-There cannot be any abetment of the offence
of kidnapping which is completed the moment the minor is taken or enticed away

']) Jafav Shah, (1922) 23 Cr. L. J. 716: 69 I. C. 444.

(m) Safder Reza, (1922) 49 C. 90 5 : 24 Cr. L. J. 379 : 72 I. C. 379 : A. I R.
(1922) Cal. 508.

(n) Lachni Ram, (J923) 24 Cr. L. J. 664 ; 73 I. C. 260 : A. I. R. (1923) Lah.

330. 1

(o) Mussamat Soma . P. R. No. 17 of 1916 : 18 Cr. L. J. 18 ; 36 I. C. 860. See
Jaladu, (1911) 36 M. 453.

(p) Ramchander , (1914) 12 A. L. J. 285: 16 Cr. L. J. 265: 23 1. C. 473,

(q) Goorodas Raj buns hec, (1865) 4 W. R. (Cr.) 7.

(r) Howka Ramlakskmi, (1886) I Weir 208.

(s) Ganesh, 31 A. 448 ; Batiia, (1914) P. L. R. No. 181 0 / 1914 : 25 I. C. 830.

(t) Ballia, (1914) P. L, R. No. 161 of 1914 ; P. W. R No. 24 of 1916 ; 15 Cr, L. J.

639 : 25 1. C. 839. % *

(u) Gooroodas Rajbunsee t (1866) 4 W. R. (Cr.) 7. \

SEC. 362 ] KIDNAPPING AND ABDUCTION 657

from the lawful guardianship (v). But where there was evidence to show that the
assistance given by the accused in attempting to dispose of the girl, who had been
kidnapped was the result of a conspiracy entered into before the kidnapping
took place, the Allahabad High Court held that a conviction for abetment of
kidnapping was maintainable (w).

Jurisdiction : — A person charged with having committed the offence of kid-
napping in a Native State (a place outside British India) cannot be tried by a Court
in British India within the local limits of which the person kidnapped may be con-
veyed or concealed or detained (x).

362. Whoever by force compels, or by any deceitful means
Abduction. induces, anv person to go from any place,

is said to abduct that person.

“ This section does not define an offence. It is merely a definition of the word
* abduction * which occurs in some of the penal provisions which follow.

“ Abduction differs from kidnapping, because there may be abduction without
a removal of the person from the protection of the law or even from lawful guard-
ianship.

“ It may be observed of the things which constitute abduction according to this
definition, that to compel by force a person to go from any place is not an offence
specially under this Code, although it may necessarily involve the commission of an
offence as assault at least, and probably wrongful restraint. To induce a person
by deceitful means to go from any place is ordinarily not an offence, but only a
subject for a civil action. Neither of these things are specifically punished as offences
here; they ifierely constitute the definition of abduction.

" And abduction is made an offence only when it is committed with certain
aggravating circumstances ” (y).

Distinction between Abduction and Kidnapping Mayne in his valuable
commentary observes : “ Abduction tinder s. 362 requires the element of force or
fraud, which is absent from kidnapping. The offence is against the person ab-
ducted, and it may be committed against a person of any age. The force or deceit
specified in this section must operate upon the person who is abducted not upon
any other person, whose consent is necessary in order to get possession of such
person (z). ‘ Abduction * differs from ' kidnapping/ It is true that the offence of
kidnapping is completed as soon as the minor is taken out of the keeping of
lawful guardian. The cffence there is committed with reference to the guardian
and once the person who subsequently removes her, removes her from the same
guardianship. That reasoning however cannot apply to the case of abduction.
Abduction is defined in s. 362 " (a).

Abduction is a continuing offence The offence of abduction is a conti-
nuing offence and a girl is being abducted not only when she is first taken away
from any place but also when she is subsequently removed from one place to

(v) Nentai Chottoraj, 27 C. 1041 F. B. ; Ram Din, (ISO!) IS A. 350 ; Ram Sunder,
(1895) 19 A. 109 ; Chekutty , (1902) 20 M. 454.

(w) Tika t (1902) 26 A. 197.

(x) Bhuta Santa l v. Dama Santal , (1915) 20 C. W. N. 62 : 17 Cr. L. J. 128 33

I. C. 304 ; Ramcharan v. Mst. Gopi , (1924) 5 I.. 416.

(y) Morgan and Macpherson, ‘ Penal Code, * p. 316.

(z) Mayne, 'Criminal Law of India' 3rd edition, pp. 701 and 702.

(a) Nanhak Dhimar*( 1930) 63 A. 140.

48

658 THE INDIAN PENAL CODE [ CHAP. XVI

another. The mere taking of a girl to the house of an immigration recruiter is no
offence within the meaning of s. 366 (b).

Where a woman is passed from one man to another in the course of abduction,
ail such men are equally liable (c).

A warrant for the arrest of a person on a charge of abduction should state the
intent with which the offence was committed (d).

An indictment under s. 56 of 24 and 25 Viet., c. 100 for unlawfully, by force or
fraud, taking away, enticing away or detaining a child under the age of fourteen,
with intent to deprive the parent or guardian of the possession of such child is not
supported by evidence of force or fraud exercised upon the guardian of the child,
nor upon any other person than the child so taken or detained ; the force or fraud
must have been practised upon the child himself in order to bring it within the
statute (e).

* Whoever by force compels or by deceitful means induces * r— The

Calcutta High Court quashed a conviction for abduction where no force or deceit
was practised on the person abducted (f).

In a case where a young woman was abducted and taken to another person
from where she, after a few days, made her escape and was proceeding to a police
station, and on her way she met the accused who represented himself to be a police
constable and offered to take her to the police station but instead of doing this he
took her to his house where he confined her and negotiated with her rebtives who
agreed to pay him for the release, the Lahore High Court held that the action of
the accused amounted to abduction as defined in this section and he was guilty of
an offence under s. 365 inasmuch as he actually confined her wrongbilly yfhile he
negotiated with her ielatives for the payment of a sum of Rs. 600 which was practi-
cally her ransom (g).

363. Whoever kidnaps any person from British India or
_ . . from lawful guardianship, shall be punished

napping. ment f ° r k d with imprisonment of either description
for a term which may extend to seven years,
and. shall also be liable to fine.

This section prescribes punishment for the offence defined in Ss. 360 and 361 .

For commentary see notes under s. 361 , supra.

Procedure : — Cognizable — Warrant — Bailable (h) — Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

In order to support a conviction for kidnapping from lawful guardianship the
following are the points requiring proof

(b) Ganga Dei, (1914) 12 A. L. J. 91 : 22 I. C. 730 : 15 Cr. L. J. 164 ; Sundae
Singh, (1924) 86 I. C. 71 followed in Nanhua Dhimar, (1030) 53 A. 140.

(c) Bela Singh, (1910) P. L. It. No. 54 of 1917 : P. W. R. No. 47 of 1915 : 17
Cr. L. J. 284 : 34 1. C. 1004.

(d) Bidhoomookhec Dabee v. Srinath Haider, (1870) 15 W. R. 4.

(e) Barrett, (1885) 16 Cox. 658.

(f) Komul Dass, (1865) 2 W. R. (Cr.) 7.

(g) Bahadur Ali, (1922) 24 Cr. L. J. 622 : 73 I. C. 510 : A. I. R. (1923) Lah.

158.

(h) The word ' Bailable ’ was substituted for ‘ Not bailable ’ by Act XVIII
of 1923.

SEC. 363 ]

KIDNAPPING AND ABDUCTION

659

(!) That the person kidnapped was then a minor under 16 years of age if a
female.

(2) That such person was in the keeping of a lawful guardian.

(3) That the accused took or enticed such person out of such keeping.

(4) That he did so without the consent of the lawful guardian (i).

The guilt or innocence of an accused person depends on whether when the
girl left her home she did so of her own accord and had definitely decided not to
return (j).

Onus on the defence : — It is only when the defence pleads ‘good faith* or in other
words, takes shelter under the exception to s. 361 , that the burden of proof lies on
the accused to substantiate the plea.

Jurisdiction : — See commentary on s. 361, supra .

Separate sentences : — If a person abducts a woman with intent to rape her
and does not commit rape on her, he cannot be awarded separate sentences under
Ss. 366 and 376 (k). Similarly, where rape is committed after abducting a girl,
the real offence is rape, and abduction is only an aggravating circumstance, and
separate sentence should not be given (1).

Maximum punishment : — The maximum sentence prescribed for the offence
of kidnapping should only be awarded in a case of the most aggravated nature tm).

Charge s — Where in a case under s. 498, after the evidence for the prosecution
had been recorded, the Magistrate framed charges under Ss. 498 and 363 and'ulti-
mately convicted the petitioner under both the charges, the High Conrt set aside the
conviction under s. 363 as it was not stated in the complaint that the girl was a
minor nor were the other necessary ingredients of this section disclosed (n).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused) as follows #

That you, on or about the day of , at ,

kidnapped XY (a minor male then under 14 years of age, or a minor girl under 16
years of age) from British India (or from the lawful guardianship of AB , his or her

) an( | thereby committed an offence punishable under s. 363

of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Minority of an unmarried Mahomedan girl— kidnapping when
completed : — According to Mahomedan Law the occurrence of puberty determines
minority and the mothers right to custody, but for the purpose of this section,
regard must be had only to the definition of minority in s. 3, Indian Majority
Act (IX of 1875) (o).

(i) B. W . Valiant v. Mrs. Eleazar, (1924) 30 C. W. N. 215 (217).

(j) Ibid, y. 2 17.

(k) Jtnan Ali , (1924) 27 Cr. L. J. 338: A. I. R. (1926) Lah. 212.

(l) Buta Singh \ (1924) 26 Cr. L. J. 1440 : A. I. R. (1926) Lah. 114.

(m) Mussamat Bhundea, (1808) 8 W. R. (Cr.) 3.

(n) Fatal Dad, A. I. R. (1928) Lah. 898.

(o) Be. Muthu Ibraki, (1913) 37 M. 567 ; 10 Cr. L. J. 169 : 27 I. C. 553 ; dis-
tinguishing In the matter of Khatija Bibi, (1870) 5 Beng. L. R. 557; see Darajuddin
Ahanda, (1923) 27 C. W. N. 531 : 37 C. L. J. 329 : 24 Cr. L. J. 712 : 73 I. C. 980.

660

THE INDIAN PENAL CODE

[CHAP. XVI

Intention immaterial except for awarding sentence Intention is not
a necessary ingredient of the offence under this section, but it is material with
regard to the sentence (p);

Boy under 14 years in charge of applicant for being taught : Removed to a dis-
tant place : — Where the applicant was put in charge of a boy, below the age of
fourteen, by his father for the purpose of teaching, but he took him away to a dis-
tant city with the object of teaching him to paint scenes so that he might join a
theatrical company, held that the removal of the boy amounted to taking him out
of the * keeping of the lawful guardian ’ (q).

364. Whoever kidnaps or abducts any person in order
Kidnapping or ab- that such person may be murdered or may
ducting in order to mur- be so disposed of as to be put in danger of
Uv ‘‘ being murdered, shall be punished with

transportation for life or rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.

Illustrations ,

(*) A kidnaps Z from British India, intending or knowing it to be likely that
Z may be sacrificed to an idol. A has committed the offence defined in this section.
*

(i) A forcibly carries or entices B away from his home in order that B may be
murdered. A has committed the offence defined in this section.

Kidnaps — Ss. 360, 361. Person — s. It.

Abducts — s. 362. Murder — s. 300.

This section punishes kidnapping or abduction when the intention of the
culprit is to kidnap or abduct in order to murder the victim.

Procedure : — Cognizable — Warrant-*— Not bailable — Not compoundable —
Triable by Court of Session.

Charge • — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the — — day of- at —

kidnapped (or abducted) XY in order that the said XY might be murdered
(or might be so disposed of as to be put in danger of being murdered) and thereby
committed an offence punishable under s. 364 of the Indian Penal Code, and
within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Charge to the Jury : — “ The object of a summing up is to enable the Judge
to place before the Jury the facts and circumstances of the case both for and against
the prosecution so as to help them in arriving at a right decision upon
the points which arise for their consideration.” Thus in a case under this section
where the learned Judge's heads of charge read more like a judgment or a speech
of a prosecuting counsel than a summing up of the case as required under the law,
it was held to be a serious misdirection (r).

(p> Jafar Shah 69 I. C. 444 : 23 Cr. L. J. 716.

(q) Mahomed Hussain, (1924) 23 A. L. J. 10.

(r) Per Mukerji, J., in Khijiruddin, (1926) 42 C. L. J. 604 (609).

KIDNAPPING AND ABDUCTION

601

SEC. 366 ]

365. Whoever kidnaps or abducts any person with intent
Kiri,, „,n,n„ ,k to cause that person to be secretly and
ducting 1 p wfth intent wrongfully confined, shall be punished with
toc r onfinr4a W o„ onglEu,ly imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.

Wrongfully confined— s. 340.

This section punishes kidnapping or abduction with intent secretly and wrong-
fully to confine the person kidnapped or abducted. S. 363 punishes kidnapping and
not * abduction * ; besides for ‘ kidnapping * the intention is immaterial. Here
intention at the time of kidnapping or abduction is an essential ingredient of the
offence.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable—

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

To support a conviction under this section, it must be clearly proved that
at the time of the abduction, it was the intention of the accused to secretly and
wrongfully confine the person (s).

Autreforis convict Conviction under s. 452 is no bar to a subsequent
trial for an offence under this section arising out of the same set of circumstances (t).

Admissibility of evidence— previous incident Evidence of previous
incident is inadmissible in cases coming under s. 366. But when the charge i§ under
this section, the fact that a complaint was preferred against the accused injeespect
of the first incident will be relevant as furnishing evidence of a motive for con-
fining the person.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

kidnapped (or abducted) one XY witfa intent to cause the said XY to be secretly
and wrongfully confined and thereby committed an offence punishable under s. 365
of the Indian Penal Code and within my cognizance or the cognizance of the Court
of Session (or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Kidnapping or abducting with intent to secretly and wrongfully
confine any person : — This section makes punishable the offence of
abduction with intent to cause the person abducted to be secretly and wrongfully
confined (u).

Abduction of a female in exchange of a girl The accused abducted a
certain woman merely in order to put pressure upon her friends to restore a young
girl whom they had abducted. The girl was abducted and then was also let go.
It was found that no harm was done to her. Held that under such circumstances
heavy sentence of imprisonment was not necessary (v).

(s) Baharuddin Mondal, (1013)* 18 C. L. J. 578: 22 I. C. 187.

(t) Baldeo Prosad, (1906) A. W. N. 32.

(u) Akbar AH , (1925) 7 L. L. J. 520 : P. L. R. No. 26 of 1925 : A. I. R. (1925)
Lah. 614.

(v) Waris v. the Croton, (1916) P. L. ft. No. 89 oi 1916 : 17 Cr. L. J. 472 : 36
I. C. 152.

tHE INDIAN PENAL CODE

[ CHAP. XVI

t)62

Whoever kidnaps or abducts any woman with intent
Kidnapping or ab- that she may be compelled or knowing
ducting woman to com- it to be likely that she will be compelled,
pel her mamage. etc. tQ marr y any person against*her will, or in

order that she may be forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced or seduced to illicit
intercourse, shall be punished with imprisonment of either de-
scription for a term which may extend to ten years, and shall
also be liable to fine,

“ and whoever, by means of criminal intimidation as
defined in this Code or of abuse of authority or any other
method of compulsion, induces any woman to go from
any place with intent that she may be, or knowing that
it is likely that she will be, forced or seduced to illicit
intercourse with another person shall also be punishable
aforesaid.”

as

Kidnaps — Ss. 360, 361.

Woman — s. 10.

Abducts — s. 362.

This section deals with the offence under s. 363 in an aggravated form. It
punishes kidnapping or abduction of any woman with intent to force her to marry
against her will, or to seduce her to illicit intercourse.

Legislative changes : — The second paragraph has been added by the Penal
Coder {(Amendment) Act XX of 1923, s. 2.

Analogous law In England it is a misdemeanour to abduct a girl under
eighteen years with the intention of carnally knowing her (w).

Object : — The underlying policy of this section is (I) to uphold the lawful
authority of parents and guardians over their minor wards ; (2) to throw a ring of
protection round the girls themselves and (3) to penalise the sexual commerce
on the part of persons, who corrupt, or attempt to corrupt the morals of the
minor girls by taking improper advantage of their youth and inexperience (x).

Onus : — Prosecution need not prove that the woman was compelled to leave
house and go from place to place (y).

Place of trial An accused who was being tried in Bombay under s. 366,
for kidnapping a girl in Bombay, could not also be tried in Bombay for charge
under S$. 376/1 14 when the offence of rape was alleged to have been committed
at Ahmedabad (z).

Age of the girl — under Ss. 366 and 376 is very material (a).

It is not a good defence to a charge under this section that the accused honestly
believed the kidnapped girl to be over 16 years of age (b).

The application of s. 33, Evidence Act, in admitting a piece of evidence
depends entiiely on the facts of each case and the discretion of the Judge (c).

(w) 48 and 49 Viet. c. 69, s. 7.

(x) Sultan, A. I. R. (1930) All. 19 (2).

(v) Keramal Mandat, (1926) 42 C. L. J. 524 : 27 Cr. L. j. 269: A. I. JR. (19201
Cal. 320.

(z) Mohan Lai A ditram , (1928) 30 Bom. L. R. 1253.

(a) *Mohiuddin, (1931) 61 C. L. J. 352 ; see also Abdul KhaHque,(\m) 37 C. W. N.

(b) Krishna Moharana, (1929) 9 P. 647, following Prince , 44 L, J, (M. C.) 122.

(c) Jati Mali, (1929) 57 C. 248.

KIDNAPPING AND ABDUCTION

663

SEC. 366]

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Separat e conviction under Ss. 363 and 366 not legal Whether a girl
of 1 1 years of age was taken out of the custody of her lawful guardian by the first
prisoner, and offered for sale in marriage to another, and the second prisoner illegally
concealed her, the conviction of the former was upheld under s. 363 only and of the
latter under s. 368 only while the separate conviction of both under s. 366 was
quashed (d).

Char ge : — Separate charges are to be drawn up for kidnapping and abduc-
tion (e). Notice of the charge of kidnapping is not a fair, proper or sufficient notice
of the charge of abduction (f).

Form of charge : — I ( name and office of Magistrate, etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of — , at ,

kidnapped (or abducted) a woman, to wit with intent that she may be

compelled (or knowing it to be likely that she will be compelled) to marry XY
against her will (or in order that the said woman may be forced (or seduced) to illicit
intercourse, and thereby committed an offence punishable under $. 366 of the
Indian Penal Code, and within the cognizance of the Court of Session or the High
Court.

And I hereby direct that you be tried by the said Court on the said charge.

Where the question of the age of the girl is in dispute, a charge under this sec-
tion of kidnapping and abduction in the alternative is not illegal (g).

Joinder of charges : — Charges under Ss. 366 and 368 should be separately
tried as the offences are distinct offences (i).

S. 234, Cr. P. Code, would allow the trial of two cases of kidnapping together.
Similarly s. 235, Cr. P. Code, would allow the trial of the offence of kidnapping
with respect to one girl and cheating with respect to the same girl in one tiral. But
the operations of the two sections 23Aand 235, Cr. P. Code, cannot be combined (j).

Alteration of charge : — It is incompetent for a Court of Appeal to alter a
charge under s. 376 to one under this section because a charge under this section
involves different elements and different questions of fact (k).

Abetment, how to be proved : — The only way in which the offence of the
husband who was charged with the offence of kidnapping his wife in order to sell
her to a person was abetted by such person or persons could be made out is by holding
upon the girl’s evidence that there was sufficient proof that before the husband
left D for M District he had a bargain with 5 and K persons to that effect, that
they knew that the girl could not be brought to D except by deceitful means and
that, therefore, they abetted the offence under s. 366 (1).

Charge to the Jury In a trialwith a Jury under this section it is a misdirec-
tion to charge the Jury in the following words : — “ It remains only to consider

(d) Irri Panday, (1867) 7 W. R. (Cr.) 56.

(e) Molizuddin, (1927) 45 C. L. J. 561 : 31 C. W. N. 940.

(f) lm Sheikh, (1926): 45 C. L. J. 584, followed in Fedu Sheikh, (1928) 32
C. W. N. 1246.

(g) Profulia Kumar Bose, (1929) 57 C. 1074

(i) Badlu Shah, (1924) 46 A. 138 : 21 A. L. J. 912 : 25 Cr. L. J. 552 : 81 I. C.
40 : A.*. R. (1924) All. 454.

(j) Faujdar, (1925) 48 A. 236 (237) : 24 A. L, J. 239 : A. 1. R. (19261 All. 261.

(k) G. C. Sircar, (1924) 3 R. 68 ; Sakharam Ganu, (1905) 8 Bom. L, R. 120.

(l) Basanta Kumar Gossain, (1926) 44 C. L. J. 317(319).

604

THE INDIAN PENAL CODE

[ CHAP. XVI

the question of intent. The charge was that the girl was kidnapped, in order that
she might be forced or seduced to illicit intercourse. . As to this, it is sufficient to
say that no other inference is possible under the circumstances* When a man
carries off a young girl at night from her father's house, the presumption is that he
did so with the intent indicated above. It would be open to him, if he had admitted
the kidnappng to prove that he had some other object, but no other object is appa-
rent on the face of the facts ” (m).

Where on the date fixed for hearing in the Sessions Court the witnesses for the
prosecution were not present and on the adjourned date also the prosecution wit-
nesses did not turn up, the Judge then empanelled the Jury and in spite of protest
from the Public Prosecutor directed the jury to return a verdict of not-guilty as there
was no evidence, the Calcutta High Court held that it was a misdirection and
set aside the order of acquittal and directed a retrial of the accused under this section

(n). Where a Judge stated to the jury : “ You shall have to see if the woman was by
force compelled to leave her house and to go to various places,” the Calcutta High
Court Jhejd that this is a misdirection as it is not necessary for the prosecution
to establish that she was by force compelled to leave not only her house, but
compelled to go to various places (o).

There is no misdirection if the Judge asks the jury to convict the accused under
s. 147 by inviting them to consider whether in the state of evidence in the record,
an offence under s. 341 or s. 352 involved in charges under Ss. 366 and 498 had or
had not been committed by the accused (p).

Lort Williams and S. K. Ghosh, J.J., in Akbar Shaik's case (q), where the
accused was convicted under Ss. 342, 365 and 366, pointed out the duty of the
Judge to analyse, marshal and weigh the evidence and how to deal with the cases
of individual accured and after setting aside the verdict, acquitted the accused.

In Abbas MandaVs case (r) it was held that the deposition of a witness recorded
by a committing Magistrate was admissible under s. 33, Evidence Act when the
said witness was absconding before the Sessions Court and a relationship between
the said witness and the accused whom his evidence implicated was also established ;
the Judge while convicting the prisoner under Ss. 366 and 376 gave a proper
direction. In Fulchand Tcpriwalla's case (s) Lort Williams, J., held that the Judge
misdirected the jury by directing them that if the marriage of the kidnapped girl
was against the will of her guardian it was against hei will.

Where the Sessions Judge in his charge to the Jury did not clearly explain that
the onus of proof was on the prosecution and did not set out all the points for decision
and omitted to give proper direction on the facts of the case, the Calcutta High Court
held that this was a serious misdirection which vitiated the verdict and rendered
the conviction liable to be set aside (t).

Punishment : — In a prosecution under this section when a girl is kidnapped
from the custody of the mother by hei paternal relations, not for any immoral or
illegal object but to marry her lawfully to a relation of here, technically the offence
of kidnapping is committed. Where the mother herself did not take a serious
view of the offence a nominal sentence is enough (u).

(m) Hughes, (1801) 14 A. 25 (27).

(n) Stipdl. and Remembrancer , Bengal v. Saddar Shaift , (1925) 30 C. VV. N. 190.

(o) Ixeramal Mandal, (1925) 42 C, L. J. 524 (526).

(p) Torap AH, (1926) 44 C. L. J. 239;

(q) 35 C. \V. N. 404.

(r) (1930) 35 C. \V\ N. 143.

(s) (1931) 36 C. W. N. 49.

(t) Abdul Cahar Sirkar , (1922) 26 C. W. N. 972. "

(u) Sher, (1923) 5 L. L, J. 377 : 25 Cr. L. J. 430 : 77 I. C. 606 A. 1. R. (1924)

Lab. 110. '

KIDNAPPING AND ABDUCTION

666

SEC. 366]

The punishment provided in a. 363 is 7 years whereas under this section it is
10 years. Where a girl of 13, prior to her elopement with the accused, had con-
sented to have sexual intercourse with the accused, the Court convicted the accused
under s. 363 and observed : “ The extra three yeais prescribed by s. 366 are most
appropriate for the intention to bring force or persuation to bear on the girl after
she has been removed from the shelter of her home and deprived of the support
which her guardian’s presence would give her in resisting cither threats or entice-
ments. If the Legislature intended that the offender should be liable to the right
punishment in every case in which he intended that the girl should have illicit
intercourse with some man, it would be easy to say so in plain terms. In my opinion
it is contrary to the well-known rule of construction of penal statutes to say that an
intention to seduce to illicit intercourse can be presumed when the girl has already
consented to illicit intercourse ” (v).

Separate sentences — under Ss. 366 and 376 do not contravene the provi-
sions of s. 71 (w).

Essential ingredients of the offence : — This section requires that abduction
must be (i) with intent that the woman may be compelled, or knowing ft to be
likely, that she will be compelled to marry any person against her will, ( 11 ) in order
that she may be forced or seduced to illicit intercourse (x).

1 With intent that the woman may be compelled or knowing it to
be likely that she will be compelled to marry any person against her will ’ ;

— This is one of the essential ingredients of the section. So this must be speci-
fically proved.

To constitute the offence of abduction a mere carrying off a woman by force is not
enough ; there should be further evidence of an intention to marry her against her
will or to force her to illicit intercourse (y).

Meaning of ‘will* The word 4 will deferred to in the first part of the section
means the will of the girl and certainly does not mean the will of her guardian (z).

Where a woman aged 20 was determined of her free will to leave her husband
and become a prostitute in Calcutta and met a procuress who was convicted under
this section for having seduced her, the Calcutta High Court acquitted the pro-
curess of the charge under this section and changed the conviction of the other
prisoners from abetting wrongful concealment under s. 368 to abetment under
s. 1 16 (a).

Meaning of marriage -Abduction of a married woman:— It was

suggested by the defence in a case where a married woman was abducted by the
accused that this section does not apply to the case of the abduction of a married
woman. The Calcutta High Court held that this section is applicable, and held
further : “ We see no reason to doubt, however, that the word 1 marry ' in s. 366
has the same meaning as the same word in s. 494 ; what it means is the going
through a foim of marriage whether the marriage should prove in fact legal and
valid or illegal and invalid ” (b).

(v) Nga Nge, (1905) 4 U. B. R 17, dissenting from Nga Po Saw, (1897*1901)
U. B. R. 328; see also Durga Das, (1904) P. R. No. 13 of 1904.

(w) Ghulam Muhammad, (1926) 7 L. 484, following Sakhamm Gann, (1905)
8 Bom. L. R. 120.

(x) Bhajan Das, 72 I. C. 533 : 24 Cr. L. J. 421 : A. I. R. (1924) Lah. 218.

(y) Naba, (1911) P. L. R. No. 193 of 1911 : P. W. R. 12 of 1911 • 12 Cr. L. J.
393 : 111. C. 577.

( 2 ) Fulchand Tcpariwalla , (1931) 36 C. W. N. 49.

(a) Srimotee Podee , , (1864) 1 W. R. (Cr.) 15.

(b) Per Riehardsog, J., in Taker Khan, (1917) 45 C. 641 (644) : 22 C. \V. N. 695
(696) : 27 C. L. J. 436 : 19 Cr. L. J. 640 : 45 I. C. 688.

666

THE INDIAN PENAL CODE

[CHAP. XVI

Abduction with intent to defile a lady is an offence:— A person who
compels a girl to go away from the place where her mother-in-law was, with intent
to have sexual intercourse with her, commits an offence under this section and

8.362(c).

Abduction ^0 compel marriage— woman living willingly with accused
before abduction, no offence under this section : — Where the abducted
woman has voluntarily lived with the accused for a couple of months before abduc-
tion as his wife, and whom the accused intended to marry, the Lahore High Court
held that the accused was not guilty as the intention which is a necessary ingredient
to constitute an offence under this section was absent (d).

• Consent ’ obtained on misrepresentation is illegal s— The offence of
kidnapping consists in taking or enticing a minor out of the keeping of the lawful
guardian of such minor without the consent of such guardian. If a minor is taken
with the consent of the guardian and subsequently married improperly without
the consent of the guardian to any person, such improper marriage would not by
itself amount to kidnapping.

A consent given on misrepresentation of a fact is one given under a mis-
conception ofv fact within the meaning of s. 90 and, as such, is not useful as a
consent under the Penal Code (e).

No question of consent arises with regard to an offence under this section.
Illicit intercourse does not cease to be so merely because it is repeated. If the
intention is to kidnapping a girl in order to seduce her to illicit intercourse, the
fact of previous intimacy with her is wholly immaterial (f).

In order to sustain a conviction under this section it is not necessary to establish
by independent evidence that the girl was seduced to illicit intercourse and that
such seduction was separate from and independent of the original seduction which
resulted in her abduction (g). In the absence of any elements of force or seducing
for the purpose of illicit intercourse no offence under this section is possible (h).

* forced or seduced to illicit intercourse 9 The second part of the
section deals with either [a) force to secure a forcible marriage or an illicit inter-
course, ( b ) inducing the woman to consent to unlawful sexual intercourse by
enticements or blandishments.

A Buddhist cannot contract a valid marriage with a minor without her guard-
ian’s consent. Therefore even if he goes through the forms of marriage with her
without such consent, subsequent intercourse would be illicit for the purpose of
this section (i).

“The term ‘seduced to illicit intercourse,’ ” said Adamson, J., " refers only
to the first act of seduction or the surrender of chastity. To ‘ seduce ', as defined
in Webstei’s Dictionary, 4 is to draw aside from the path of rectitude and duty in
any manner, to entice to evil, to lead astray, to attempt to lead to iniquity/ I
think that it would be a monstrous proposition, and one that would strike at the
very root of social and moral rectitude to hold that because a man has induced a
girl while in the custody of her parents to surrender her chastity, he committed
no further act of seducing to illicit intercourse when he persuaded her to live with

(c) Kali U day an, 9 M. L. T. 406 : 12 Cr. L. J. 240 : 10 I. C.~290.

(d) Bhajan Das, (1923) 24 Cr. L. J. 421 : 72 I. C. 533 : A. 1 R. (1924) Lah 218

(e) Jaladu, (1911) 36 M, 453. '

(f) Premnarain, (1928) 27 A. L. J 114.

(g) Tttjail, (1927) 28 Cr. L. J. 413 : 101 I. C. 189 : A. I R. (1927) Lah. 370.

(h) In re. Abdul Sathar Khan , (1927) 54 M. L. J. 456.

(i) Nga Neu, (1883) S. J. L. B. 202.

kidnapping and abduction

667

SEC. 366-A ]

him in a condition of concubinage not sanctioned by law ” (j). It is respectfully
submitted that this view is erroneous.

* Forced or seduced * : — The word ‘ forced ' is used here in its ordinary
dictionary sense which includes force by stress of circumstances. The word
4 seduced * in this section, though sometimes used in the narrow sense to mean to
induce a girl to part with her virtue, for the first time, subsequent seduction for
further acts of illicit intercourse is also meant to be included (k).

Where the accused by false representations and deceitful means induced a
girl to marry and leave her home and accompany him to Kohat where, upon their
arrival, he instigated her to prostitute herself, and it appeared that with this end
in view he had induced the girl to marry him, it was held that the accused was guilty
of an offence under this section (1). Where two girls under the age of 16 years
ran away from their houses and remained for one or two days in the house of a
woman who belonged to the caste of Naiks in Kumaun and no report was made to
the pradhan or the patwari, the Allahabad High Court held that the woman in
whose house the girl stayed was properly convicted of an offence under this
section (m).

For further commentary see notes under s. 361 , supra.

Procuration of minoi
girl.

366 -A. Whoever, by any means whatsoever, induces
any minor girl under the age of eighteen
years to go from any place or to do any
act with intent that such girl may be, or
knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person, shall be punishable with im-
prisonment which may extend to ten years and shall also be liable
to fine.

This section and the next and the amendment of s. 366 were added by Act XX
of 1 923 and were intended to give effect to the international convention for
suppression of the traffic in women and children. For debates see Gazette of India,
(1922) Part V. p 343. The Bill vvs published in the Gazette of India, dated the
30th Sept. 1922.

Report of the Select Committee “ Section 366 of the Code also covers
the case of the procuration of a girl under 16 unless she has no guardian or the
offence is committed by, or with the consent of, the guardian. These cases wc
propose to provide for by the insertion of a new section 366-A into section 366 by
clause 3 (1) of the Bill as introduced" (n).

Procedure : — Cognizable — Warrant— Not bailable — Not compoundable —
Triable by Court of Session.

Charge — I ( name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at induced

XY a girl under the age of eighteen years to go from -(specify

(j) Nga Ni Ta, (1903) 10 Bur. L. R. 196 ; this case is against the view taken in

Nga Nga, (1906) U. B. R. (P. C.) 17 ; Durga Das. (1904) P. R. No. 13 of 1904 ; Sreemoli

Podee, (1864) 1 W. R. (Cr.) 45.

(k) Prof ulla Kumar Bose, (1929) 57 C. 1074 : 50 C. L. J. 593: A. I. R. (1930)
Cal. 209, following Rex v. Moon, (1910) 1 K. B. 818.

. (I) Bahadur, (1881) P. R. No. 7 of 1881.

(Cr ) 8 J aSUali ‘ f 1912 ) 34 A - 34 °. dissenting from Guilder Sitigh, (1865) 5 W. R.

(nj G. I. dated Feb. 10, 1923, Part V. p., 79.

668

THE INDIAN PENAL CODE

[CHAP. XVI

the name of the place) or to do the following act viz.) with intent that

the said XY may be (or knowing that it is likely that the said-XY will be) forced

(or seduced) to illicit intercourse with , and thereby committed an

offence punishable under s. 366-A of the Indian Penal Code and within the cog-
nisance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

* induces $ The word ‘induce* is used in its ordinary meaning of any
words of inducement flowing from one person to the girl. The father’s telling
the girl to come away with him from a house where she was unhappy would
amount to an inducement. Dalai, J., observed • “ It is true that these provisions
were enacted to give effect to the international convention for the suppression of
traffic in women and children signed at Geneva in 1922. When a married girl
is unhappy with her husband and the father takes her from her husband's house
and gives her as wife to somebody else, that can hardly be called trafficking in
womcn^ At the same time, having regard to the provisions of the section, I am
of opinion that the act of the father would come within these provisions ” (o).
This view seems to be erroneous as the father’s intention here is not to force hei or
seduce her to illicit intercourse, and this intent is the gist of the offence.

Offering the girl to several persons successively (or sale— whether
fresh offence for each offer An offence under this section is one of
inducement with a particular object, and when after inducement the offender
offers the girl to several persons, a fresh offence is not committed at every fresh
offer for sale (p).

Sheltering a girl and taking her from place to place Merely giving
shelter to a girl or carrying her from place to place without knowing that she was
married and without any intention or knowledge that she was likely to be forced
ox seduced to illicit intercourse does not amount to an offence under this
section (q).

366 -B. Whoever imports into British India from any
country outside India any girl under the
from 1 fore^n°country"‘ r! age of twenty one years with intent that she
may be, or knowing it to be likely that she
will be, forced or seduced to illicit intercourse with another
person,

and whoever with such intent or knowledge imports into
British India from any State in India any such girl
who has with the like intent or knowledge been im-
ported into India, whether by himself or by another
person,

shall be punishable with imprisonment which may extend
to ten years and shall also be liable to fine.

While the preceding section deals with procuration of a minor girl for the
purpose of illicit intercourse, this section penalises importation of girl under the
age of twenty-one from foreign country for the same purpose,

(o) Ram Satan, (19301 A. L J. 1113. ■ ”

(p) Sis Ram, (1929) A. L. J. 800 : 61 A. 888.

(q) Rati Ram, (1927) 28 P. L. R. 260 ; 28 Cr. L. J. 684 : 102 I. C. 662.

KIDNAPPING AND ABDUCTION

669

SEC. 367 ]

Report of the Select Committee : — “ The case of girls imported from a
foreign country we propose to deal with by the insertion of a new section 366-B in
the Code. We are unanimously of opinion that the requirements of the conven-
tion will be substantially met by penalising the importation of the girl from a foreign
country. At the same time we have so worded the clause as to prevent its being
made a dead-letter by the adoption of the course of importing the girl first into
an Indian State " (q 1 ).

Procedure {—Cognizable— Warrant— Not bailable Not compoundable —

Triable by Court of Session.

Charge : — I ( name and office of Magistrate, etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

imported into British India by yourself (or by ) from-; ;

(mention the name of the country) a country outside India (or any State in India) XY

, a girl under the age of twenty-one years with intent that she may

be (or knowing it to be likely that she will be) forced or seduced to illicit intercourse

with another person, viz. , and thereby committed an offence punishable

under s. 366-B of the Indian Penal Code, and within the cognizance of the Court
of Session or the High Court.

And I hereby direct that you be tried by the said Court on the said charge.

367, Whoever kidnaps or abducts any person in order that

n . or ab such person may be subjected, or may be so
ducting1norder°to sub- disposed of as to be put in danger of being
ject person to grievous subjected, to grievous hurt, or slavery, or to
ur . s avery, e c. unna tural lust of any person, or know-

ing it to be likely that such person will be so subjected or disposed
of, shall be punished with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to
fine. #

Kidnaps — Ss. 360, 361. Abducts — s. 362.

Person — s. 1 1 . Grievous hurt— s. 320.

Slavery — Ss. 370, 371. Unnatural lust— s. 377.

Kidnapping 'Or abduction of a woman with intent to compel her marriage or
forcing or seducing her to illicit intercourse is punishable under s. 366, whereas
this section punishes kidnapping or abduction of any person with the intention
of subjecting him to grievous hurt, slavery or unnatural lust.

Procedure : — Cognizable — Warrant — Not bailable Not compoundable —

Triable by Court of Session.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

kidnapped or abducted XY in order that the said XY may be subjected (or may
be disposed of as to be put in danger of being subjected) to grievous hurt (or

slavery or to the unnatural lust of ) (or knowing it to be likely that

such person will be so subjected or disposed of), and thereby committed an offence
punishable under s. 367 of the Indian Penal Code, and within the cognizance of
the Court of Sessioti.

(ql) Gazette of India, dated 10 Feb. 1921, Part V, p. 79.

670

THE INDIAN PENAL CODE

[CHAP. XVI

And I hereby direct that you be tried by the said Court on the said charge.

368. Whoever, knowing that any person has been kidnapped
or has been abducted, wrongfully conceals
or confines such person, shall be punished
in the same manner as if he had kidnapped
or abducted such person with the same
intention or knowledge, or for the same purpose as that with or
for which he conceals or detains such person in confinement.

Wrongfully conceal-
ing or keeping in con-
finement kidnapped ot
abducted person.

Wrongfully confines— s. 340.

This section punishes an accused after the fact. A person, who knows that a
person has been kidnapped or abducted, wrongfully conceals or confines such kid-
napped person, is liable as the principal kidnapper and he may be punished in the
same manner as if he had kidnapped, viz. % according to the offence of the principal
kidnapper, although he may not have shared the same intention or knowledge.

The knowledge that the person whom the accused is wrongfully concealing
or confining was kidnapped or abducted is the essential ingredient of an offence
under this section. He may not know by name the person who has actually kidnap-
ped but this knowledge may be proved from the circumstances of the case or from
facts shewing conspiracy, common purpose or design.

The Calcutta High Court has held that this section refers to some other party
who assists in concealing any person who has been kidnapped, and not to the
kidnappers (r).

Procedure Cognizable— Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class (s).

ft is not necessary to prove that the person concealed was abducted by a parti-
cular person. It is sufficient for a conviction under this section if the accused knew
of the abduction It). Wrongful concealment must be proved by the prosecution (u).

If persons who are said to have been the principals are acquitted under s. 342,
I. P. C., it cannot be right to convict the others under s. 368 read with s. 109 (v).

A person convicted under this section and s. 109 cannot be tried again under
s. 343 (w). But a person acquitted of this offence may still be punished for some
other offence under the Code, e.g., cheating or abetment of bigamy (x).

Joinder of charges : — A joint trial for offences under this section and s. 366,
supra , has been held to be bad, but where it did not occasion a failure of justice,
conviction was allowed to stand (y).

A and B abducted a girl and took her to the house of C where she was
wrongfully confined. A , B and C were jointly tried, A and B for offences
under s. 366 and C for offence under s. 368, held that the joint trial was not
illegal (z).

(r) Sheikh Oozeer t (1866) 6 W. R. (Cr.) 17.

S These words were substituted for the words “Court of Session’' by Criminal
ure Amendment Act XVIII of 1923.

(t) Ameer Doves, (1864) W. R. (Cr.) 3.

(u) Mt. Chubba, 5 N. W. P. H. C. R. 189.

(v) Todbul Hossain, (1929) 33 C. W. N. 891.

(w) Ishwar Chandra Jogee, (1864) W. R. (Cr.) 21.

(x) Ibrahim , (1894) P. R. No. 7 of 1894; Durga Das , (J904) P. R. No. 13 of
1904.

(y) Badlu Shah , (1924) 46 A. 138 : 21 A. L. J. 912 : 25 Cr. L. J. 662 . 81 I. C.
40 ; A. I. R. (1924) All. 464.

(t) Nanhua Dhirpar , (1930) 63 A. 140,

kidnapping and abduction

671

SEC, 369]

Venue For the trial of a case under this section the form is evidently the
Court within whose jurisdiction the kidnapped or abducted person has been wrong-
fully concealed or confined (z 1 ).

Essential ingredients of an offence under this section -There are two
ingredients of an offence under this section, (I) theie must be kidnapping or
abduction as defined in s. 361 or s. 362 and (2) the kidnapping or abduction must
be done with the intent or with the knowledge or with the object that certain things
will happen as specified in s. 366.

There may be cases where the matter is capable of direct proof, but very
generally one has to infer from the circumstances of the case and the subsequent
conduct of the accused as to what was the intention with which the kidnapping
or abduction had been brought about. Again, the circumstances of the case
though incriminating to outward appearances may yet be capable of a perfectly good
and reasonable explanation and may be fully compatible with the innocence of the
accused. In such cases it would be for the accused to explain away the incriminating
circumstances and to prove that he had no improper or sinister object in view (a).
It is submitted that the second ingredient is not exhaustive . What follows from the
section is that (1) the person in question was kidnapped or abducted, (2) that the
accused knew of such kidnapping or abduction, (3) that the accused with such know-
ledge wrongful y concealed or confined such person. Thus, an accused may be
punished in the same manner as the original kidnapper under any one of the
sections 363-367 or s. 369 according to the facts of the case, although he may
not have the same intention or knowledge as the principal kidnapper.

Knowledge and not merely suspicion on the part of the accused is essential (b).

A conviction under this section cannot be maintained on the evidence that the
accused said that they wanted to sell the girl. It must be proved that the accused
concealed the girl or kept her in wrongful confinement (c).

Wrongfully concealing or keeping in confinement any person knowing
that such person has been kidnapped or abducted Where a girl under
sixteen years of age, while going to the vegetable market, met another woman who
asked hei to accompany her under a promise of obtaining work for her, and
thereafter she was removed by the* accused in a closed carriage to a solitary
bungalow far away from the town and kept there for two days and nights, held that
the accused was guilty under this section (d). Where A induced a girl of II
years to accompany him to pick mangoes and then sold her to B and told B that
he offered her in sale for marriage with B's son and the second prisoner C con-
cealed her from place to place till she was discovered by the police, it was held
that A was guilty under s. 363 and C under this section (e).

369. Whoever kidnaps or abducts any child under the age

Kidnapping or ab- ©* ten ,y ears with the intention of taking dis-
ducting child under ten honestly any moveable property from the

SfromUs^rson. to P ers ° n of such cWH’ shall be punished 1 with

imprisonment of either description for a
term which may extend to seven years, and shall also be liable to
fine.

Dishonestly — s. 24.

Moveable property — s. 22.

(zl) Dosa, (1928) 109 I. C. 224 : 29 Cr. L. J. 490.

(a) Chander Singh, (1921) 3 L. L. J. 074 : 23 Cr. L. J. 459 : 67 I. C. 731.

(b) Gadadhat Sarkar, 87 I. C. 845 ; A. I. R. (1926) C. 226.

(c) Amur Ali, (1920) 27 Cr. L. J. 554 ; A. 1. R. (1920) L. 384.

(d) Jetha Nathao, (1904) 6 Bom. L. R.785.

(e) Isree Panday, (1867) 7 W. R. (Cr.) 56.

672

THE INDIAN PENAL CODE

[CHAP. XVI

Through this section punishes kidnapping or abducting a child under 10 years
of age with intent to steal from its person, the sentence is the same as provided
by s. 363 for ordinary cases of kidnapping or abduction.

Procedure : — Cognizable — Warrant Not bailable — —Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Jurisdiction : — Magistrate should commit the accused to take his trial before
the Court of Session .

The Calcutta High Court held that a case of abduction of a child, for the
purpose of stealing its ornaments, which was tried by the Magistrate, should have
been committed for trial to the Court of Session (f).

The offence described in s. 363 of the Penal Code is included in that described
in s. 369, the kidnapping and the intention of dishonestly taking property from
the kidnapped child being included in the latter section (g).

Charge: — I (name and office of Magistrate, etc.) hereby charge you ( name of
accused) as follows : —

That you, on or about the day of , at , kidnapped

(or abducted) XY, a child then under ten years of age, with the intention of taking

dishonestly any moveable oroperty, to wit , from the person of the

said X Y, and thereby committed an offence punishable under s. 369 of the Indian
Penal Code and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the
said charge.

370. Whoever imports, exports, removes, buys, sells or dis-
„ . poses of any person as a slave, or accepts,

of any person as a slave, receives or detains against his will any person
as a slave, shall be punished with imprison-
ment of either description for a term which may extend to seven
years, and shall also be liable to finfc.

Scope: — Slavery does not necessarily connote an absolute and unlimited
power over the life of another under this section but falls short of it (g).

4 * In the draft Penal Code published by command in 1837, in the chapter on
kidnapping, except in cl. 357, now represented by s. 367, there is no reference to
slavery. The report, however, of the Commissioners recognises ‘slavery* as
existing. They say that they had collected information on the subject from every
part of India, and that the documents collected have satisfied them that there is at
present no law whatever defining the extent of the power of a master over his
slaves, that everything depends on the disposition of the particular functionary
who happens to be in charge of a district, and that functionaries who are in charge
of contiguous districts, or who have at different times been in charge of the same
district, hold diametrically opposite opinions as to what their official duty requires.
The result was that the Law Commissioners recommended to the Governor-
General in Council that no act falling under the definition of an offence should be
exempted from punishment because it was committed by a master against a
slave ” (h).

(f) Sohoy Dome, (1866) 6 Vt\ R. (Cr.) 2.
fg) Shama Sheikh (1867) 8 W. R. (C r.) 35.

(h) Ram Kumar, (1880) 2 A. 725 F. B. (729).

SEC. 370]

SLAVERY

673

This section does not prohibit slavery in express terms but punishes importing,
exporting, removing, buying, selling or disposing of a slave, while the next section
imposes a heavier sentence upon those who habitually deal in slaves. These
sections assume the possibility of a state of slavery in India notwithstanding the
Abolition of Slavery Act (V of 1843) (i).

Procedure : — Not cognizable — Warrant Bailable Not compoundable —

— Triable by Court of Session.

Jurisdiction : — The jurisdiction to try such an offence is not affected by a
resale of the person as a slave in another district (j). **'

* As a slave * : — Stuart, C. J., has held : “ it is exceedingly difficult

to understand what is meant to be intended by s. 370. The actual accomplishment
of placing a human being in the condition of a slave could not have been contemplat-
ed inasmuch as the possibility of accomplishing anything unknown to the law
cannot be supposed to have been meant or intended ; s. 370 therefore can only be
understood as directed against attempts to place person? in the position of slaves,
or to treat him in a way that is inconsistent with the idea of the person so treated
being free as to his property, services, or conduct in any respect” (k).

In the famous Negro case, in England it was held : “ Slavery always imports
an obligation of perpetual service ; an obligation, which only the consent of the
master can dissolve. — It generally gives to the master an arbitrary power of ad-
ministering every sort of correction, however inhuman, not immediately affecting
the life or limb of the slave ; sometimes even those are left exposed to the arbitrary
will of the master or they are protected by fines, and other slight punishments too
inconsiderable to restrain the master’s inhumanity.— It creates an incapacity of
acquiring, except for the master’s benefit. — It allows the master to alienate the
person of the slave ; in the same manner as other property — Lastly it descends
from parent to child, with all its severe appendages ” (1).

Panchuria kidnapped a girl of about 1 3 whom she sold to the wife of the accused,
describing her as an orphan ; the girl remained in the house for four years when she
left the house and was found in the possession of a procuress who was bringing her
up as a prostitute and the accused w%s convicted in the alternative of an offence
under s. 368 or s. 370 or s. 373. On appeal the Allahabad High Court held that
the conviction under s. 368 could not be sustained as the accused was not present
when girl was sold to his wife but his conviction under this section was upheld, the
Judges observing : M It is urged that to constitute a person a slave not only must
liberty of action be denied to him, but a right asserted to dispose of his life, his
labour and his property. It is true that a condition of absolute slavery would be so
defined, but slavery is a condition which admits of degrees. A person is treated as
a slave if another asserts an absolute right to restrain his personal liberty, and to
dispose of his labour against his will, unless that right is conferred by law, as in the
case of a parent, or guardian or a jailor ” (m). Where S transferred to A for Rs. 25
his rights in the person of B a girl of 13 years and in the document in which the
action was recorded, B was described as a vellati or slave girl purchased by S from
P, the Madras High Court held that A was guilty of buying 6 as a slave within the
meaning of this section (n).

(i) Korath Mamaad, (1917) 41 M. 334.

(j) Nga Shwe Po, (1804) P. J. L. B. 81.

(k) Ram Kumar, (1880) 2 A. 723 (727) F. B.

(l) James Sommer sett, 20 St. Trial 20.

(m) Sikander Bukhut , (1871) 3 N. W. P. H. C. R. 146, this case was doubted
in Ram Kumar, (1880) 2 A. 723 (72 5) F. B.

(n) Amina, (1884) 7 M. 277,

49

674

THE INDIAN PENAL CODE

[CHAP. XVI

371. Whoever habitually imports, exports, removes, buys.
Habitual dealing in sells, traffics or deals in slaves shall be

s,avcs punished with transportation for life, or with

imprisonment of either description for a term not exceeding ten
years, and shall also be liable to fine.

This section punishes habitual dealers in slaves.

Procedure Cognizable Warrant Not bailable— Not compoundable —

Triable by Court of Session.

372. Whoever sells, lets to hire, or otherwise disposes of
Selling minor for any minor under the age of eighteen years

purposes of prostitution, with intent that such person shall at any age be
e c employed or used for the purpose of prostitution

or illicit intercourse with any person or for any unlawful or immoral
purpose, or knowing it to be likely that such person will at any age
be employed or used for any such purpose, shall be punished with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.

“ Explanation I. — When a female under the age of eighteen
years is sold, let for hire, or otherwise disposed of to a
prostitute or to any person who keeps or manages a
brothel, the person so disposing of such female shall,
until the contrary is proved, be presumed to have dis-
posed of her with the intent that she shall be used for
the purpose of prostitution.

Explanation II. — For the purposes of this section “illicit
intercourse ” means sexual intercourse between persons
not united by marriage or by union or tie which, though
not amounting to a marriage, is recognised by the per-
sonal law or custom of the community to which they
belong or, where they belong to different communities,
of both such communities, as constituting between
them a qwasi-marital relation. ”

This section and the next deal with disposal of minors under the age cf eighteen
with intent that such minor shall at any age be employed or used for the purpose
of prostitution or for any unlawful or immoral purpose or knowing it to be likely
that such person will be employed or used for any such purpose. This section
applies to the person who sells, lets to hire , or otherwise disposes of the person under
18 years, whereas s. 373 is applicable to a person who buys, hires or otherwise obtains
possession of a person under the age of 18 years, in other words aims at brothel-
keepers and others who make a profit out of prostitution of minor girls.

These sections are unrestricted as to sex, and custody, the offence being com-
mitted whether the minors were in the keeping of a guardian or not and whether
they were sold by their parents (o).

(o) Pourangam, (1885) 1 Weir 373.

SEC. 372 ]

SELLING MINOR FOR PROSTITUTION

675

Legislative changes For the word ‘ sixteen ' the word 4 eighteen 9 has been
substituted by Act V of 1924 which has now been repealed by Schedule 11 of the
Repealing and Amending Act (VI 11 of 1930), and by the Indian Criminal Law
Amendment Act (Act XVIII of 1924), Explanations 1 and 2 have been added and
for the words 4 minor under the age of eighteen years with intent that such minor
shall be employed or used for the purpose of prostitution, or for any unlawful and
immoral purposes, or knowing it to be likely that such minor will be 9 the words in
italics in the section have been substituted.

The Legislature amended this section and s. 373 by Act XVIII of 1924 for the ?
purpose of affording greater protection to persons under the age of eighteen
years (p).

* Clause 2 9 : — The amendment is designed to make it clear that an offence
is committed under s. 372 or s. 373 of the Indian Penal Code, when the minor is
either disposed of or procured for the purpose of being sexually known either before
or after attainment of the age of eighteen years, and whether she is made over to a
life of immorality or merely subjected to an isolated act of carnal intercourse. In
either case the child is equally deserving of protection. The age of eighteen years
has been fixed with reference to the provisions of the Indian Penal Code (Amend-
ment) Act 1923.

* Clause 3 9 The first Explanation provides that if a minor girl is disposed of *
to a prostitute or a brothel-keeper or manager, the person so disposing of her shall
be presumed to have done so with the improper intent mentioned in s. 372 of the
Indian Penal Code. The second Explanation defines the offence of illicit inter-
course as sexual intercourse between persons not united by marriage or by any union
or tie which, though not amounting to a marriage, is recognised by the present law
or custom of the community concerned, as constituting between them a quasi-
mar ital relation.

* Clause 4 9 : — The amendments are consequential to the Explanations added
by clause 3.

* Clause 5 9 : — “ Under the provisions of s. 552, Cr. P. Code, a Magistrate may
compel the restoration of abducted females, if their age is less than fourteen years.
The clause increases the age to sixteen y^ars. It is now proposed to increase the
age further as it is considered that it is most suitable to fix sixteen years as the
age under which a girl may be restored to her husband, parent or guardian or other
persons having lawful charge of her.

* Clause 6 9 — empowers a Presidency or District or Sub-divisional Magistrate,
o r a Magistrate of the first class specially empowered by the Local Government in
this behalf, upon knowledge obtained in the course of an inquiry into or trial of an
offence under s. 372 or 373 of the Indian Penal Code, or an information received
from any person not being a police-officer of lower rank than an Inspector, to take
proceedings for the protection of females under the age of eighteen years or such
less age as the Local Government may specify in this behalf and to commit such
females to suitable custody. Local Governments are empowered to make rules for
the determination of the suitability of custodians, but such rules must not be in-
consistent with any directions contained in the local Children Acts in regard to such
matters. The Sessions Judge is empowered to cancel or vary an order of com-
mittal to suitable custody on application made within three months. The powers
of guardians appointed by Civil Courts are safeguarded (q).

Scope : — To constitute an offence under this section it is not necessary that
there should have been a disposal tantamount to a transfer of possession or control

(p) See Statement of (Jbjects ancP Reason, “India Gazette" 1924. Part V. f p. 30.

(q) Notes on clauses, see G. I. 1924, Feb. 16, Part y., p. 30.

676

[CHAP. XVI

THE INDIAN PENAL CODE

over the minor’s person (r). Mere intention not followed by any act cannot consti-
tute any offence, and in indirect preparation which does an act which amounts to
commencement of the offence does not constitute either a principal offence or an
attempt or abetment of the same (s).

Procedure Cognizable — Warrant — Not bailable— Not compoundable —
Triable by Court of Session, Presidency Magistrate or a Magistrate of the first
class.

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

sold (or let to hire, or otherwise disposed of) one XY then a person under the age of
eighteen years with intent that such person should at any age be empowered or
used for the purpose of prostitution (or for illicit intercourse with a person, viz ., —
or for any unlawful and immoral purpose) or(knowing it to be likely that such person
will at any age be employed or used for any such purpose) and thereby committed
an offence punishable under s. 372 of the Indian Penal Code, and within my cog-
nizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

' ■* ‘sells, lets to hire or otherwise disposes of * s— The terms ‘sell* and ‘hire*
do not necessarily connote a present or immediate transfer of possession and where
a transfer of possession is contemplated the offence is complete on proof of the sale
or hiring and without any proof of a transfer of possession (t).

k The word ‘ let to hire ’ has been held under the old Code to be the counterpart
of the word ‘ hire * in the next section (u). In view of the present amendment the
following cases (v), it is submitted, are no longer good law .

Parker, J. f held in a case under the old Code as follows : —

“ The term ' dispose of * has many meanings. In Webster’s Dictionary it is
defined as (a) to determine the fate of, to exercise the power of control over, to
fix the condition, employment, etc., of, to direct or assign for a use ; (b) to exercise
finally one’s power of control over, to pass* over into the control of some one else
as by selling, to get rid of.

“Seeing that the term in s. 372, Indian Penal Code, is used in conjunction with
selling and letting to hire, it would seem that the Legislature rather contemplated
some physical disposal for a necessary purpose or the exercise of some power of
control which would be final and irrevocable in its moral effects , more especially
as the words used are ' sells, lets to hire or otherwise disposes of ’ thus suggesting
other acts ejusdem generis ” (w). The Madras High Court in a recent decision has
held that the word * disposal ’ connotes some control at any rate by the person dis-
posing over the minor disposed of (x).

Where a customer of a brothel came across a young girl, who had run away
from her father’s house and directed her to the brothel and there was no evidence

(r) Arunachellum , (1870) 1 M. 164, following Jalil Bhaoin, (1869) 6 Bom.
H. C. R. ( Cr . C.) 69: Srinivasa v. Annasami, (1891) 16 M. 41 ; in re. Senjimalai ,
(1924) 48 M. L. J. 594.

(s) Rakhn, (1899) 24 B. 287.

(t) Anon, (1881) 1 Weir 369 (362) F. B. Sec Arunachalam , 1 M. 164. <

(u) Ahmed Khan, (1898) Rat. Unrep. Cr. C. 962.

(v) Dowlatk Bee v. Shaikh Ally, (I870)JT<M. II. C. R. 473 ; Ahmed Khan, (1898)
Rat. Unrcp. Cr. C. 962; Sukee Raw, (18!!%^ C. 97 no longer good law.

(w) Per Parker, J., in Srinivasa v. Annhsami, (1892) 15 M. 323 (329, 330).

(x) In re. Senjimalai , (1924) 48 M. L. J. 694. #

SELLING MINOR FOR PROSTITUTION

077

sec. 372 ]

of any passing of any pecuniary consideration, it was found that if his intention
was not that she should be used for prostitution, he knew that she was likely to he
used in course of time for the purposes of prostitution, the Madras High Court held
that he was not guilty of an offence under this section (y). It is submitted that in
view of the expression 4 shall at any age be employed \ etc., added by the amending
Act XVIII of 1924, s. 2, the decision in 4 In re . Senjimalai ' (x) is no longer good
law.

The Bombay High Court has recently held that the ceremony of tying a Tali-
mani to a minor girl worshipping a basin of water by her and performing other
ceremonies is a preliminary step bef ore a girl is let out or disposed of for the purpose
of prostitution and is no offence under this section.

That which this section contemplates is the selling, letting to hire, or otherwise
disposing of any minor with intent that such minor should be employed as stated ;
that is to say, making over to a person either in perpetuity, or for a term, for a con-
sideration, or otherwise transferring the possession of a minor (z).

The dedication of a minor girl under the age of 16 years to the service of a
Hindu temple, by the performance of the Shej ceremony, where it was shown that
it was almost invariably the case that girls so dedicated led a life of prostitution, was
a disposing of such minors, knowing it to be likely that she would be used for the
purpose of prostitution, within the meaning of this section (a). Performance of &
Gejjee ceremony on a minor girl does not amount to her 4 disposal * within the
meaning of this section (b).

The Member introducing the Bill for amending this section said : “ We
have not definitely assumed that employment as dev dasis is equivalent to em-
ployment for purposes of prostitution, but should such employment actually prove
to come within that definition our Bill will enable it to be more effectively than
hitherto H (c).

Dedication to temple amounts of ‘ disposal 9 Dedication of a miner
girl to a temple to serve the temple as a dancing girl amounts to ‘ disposal * for pur-
poses of prostitution, when it is shown that girls so dedicated have led that life (d).
Where the accused dedicated his minor.daughter as a Baisnavi by a form of marriage
with an idol and it appeared that a Baisnavi is incapable of contracting a lawful
marriage, and ordinarily practises promiscuous intercourse with men, and that her
sons succeed to her father’s property, the Madras High Court held that the accused
had committed an offence under this section (e). The prisoners were convicted,
the one of disposing of, ajid the other of receiving, two children, females under the
age of 16 years, with intend that such females should be used for the purpose of
prostitution. The evidence showed that the children were disposed of and regis-
tered as dancing girls of a pagoda for the purpose of being brought up as dancing
girls. It was held that offences under this section and s. 373 had been committed
and they were pioperly convicted (f). A dancing woman of a temple applied to the
manager of the temple for the appointment of a minor girl, whom she falsely de-
scribed as her daughter, to her 4 kothu ’ miras ; the manager ordered that the girl be
placed on the pay abstract like other dancing girls and she was employed about

(v) Sahobava Birappa, (1025) 27 Bom. L. R. 1022.

(z) Naur Jan, (1870) 14 W. R. (Cr.) 39.

(a) JaHi Bhaivin, (I860) 6 Bom. H. C. R. 60; Tippa, (1892) 16 B. 737.

(b) Parameswari Subbi , 22 Bom. L. R. 894 : 21 Cr. L. J, 721 : 68 I. C. 145.

(c) Proceedings of the Legislative Assembly, dated February 11, 1924, pp.

447, 448. **

(d) Public Prosecutor v. RajatnikfiklltoM) 2 M. \V. N. 470 : 10 M. L. 1. 511 :

12 Cr. L. J. 666 : 12, I. C. 064. .7?

(e) Basova, (1891) 16 M. 76.

(f) Ex parte Padmavati, (1870) 6 Mad. H. C. R. 415.

678

THE INDIAN PENAL CODE

[CHAP. XVI

the temple, though the ceremony of trying the bottu (after which the girl could
not be married) did not take place, the Madras High Court held that the above
facte constituted prima facie evidence that an offence under this section had been
committed by the dancing woman, the manager above named and the parents of
the girl (g).

It should not in the case of dancing girls be confounded with prostitution which
is neither its essential condition nor necessary consequence, but an incident due to
social influences (h).

4 with intent that such person shall at any age be employed or used
for the purpose of prostitution or illicit intercourse with any person or for
any unlawful and immoral purpose, or knowing it to be likely that such
person will at any age be employed or used for any such purpose 9

Intention is the essential ingredient of an offence.

A Full Bench of the Madras High Court under the old Code has held : “ The
372 and 373 sections of the Indian Penal Code were intended for the protection
of minors. They involve the declaration as a matter of general law that no person
under the age of majority should be devoted to a life of prostitution nor employed
in, nor used for, any unlawful or immoral purpose, nor placed in a position in which
it is likely such person will be employed in, or used for any such purpose

“Although, where a certain result is by common experience shown to be the
necessary or natural result of a particular act, the Judge may presume on the part
of the act or an intention to cause the result or a knowledge of its probability” (i).
This view is no longer tenable.

4 at any age 9 : — These words are new and have been added by Act XVI II of
1924, now repealed by Schedule II of the Repealing and Amending Act (VIII
of 1930).

It is submitted that by the addition of the words * at any age * the following
rulings (j) are no longer good law.

4 for the purpose of prostitution or illicit intercourse 9 s— ' The words
in the old s. 372 were ‘ prostitution or ar\y unlawful and immoral purpose * and
were subject of much controversy (k). The addition of the words ‘ illicit inter-
course * seems to cover the case of a minor girl who may have been acquired for a
casual sexual intercourse. The addition of the words ‘ illicit intercourse with any
persons * has rendered obsolete Tippa s case (1) as has been pointed out in Vithaba
Shukhas case (m).

The framers of the amendment explain that illicit sexual intercourse means
* sexual intercourse not sanctioned by law or custom.*

Explanation I : — This explanation and the next have been added by the
Amending Act (XVIII of 1924). This explanation is aimed at trafficking in minor
girls by prostitutes or brothel-keepers. It does not touch any special institution
like the * Devadasis * and the Legislature has proceeded cautiously.

(g) Srinivasa v. Ann as ami, (1801) In M. 41.

(h) Venku Mahal inga, (1888) 11 M. 393 (40 2), followed Per Jardine, J., in Tippa ,
(1892) 16 13. 73.

(i) (1881) l Weir 359 (F. B ).

(j) Ramanna (1889) 12 M. 273 ; Karuna Baulubi. (1894) 22 C.. 164 ; Khctramani
(1922) 3f> C. L. J. 451 (455); Chenda , (1898) 18 A. 24.

(k) Dowlath Beebi v. Shaikh AH, 5 M. H. C. R. 473; M a ha ling a, (1888) II M.
393; Tippa, (1892) 16 B. 73; Srinivasa v. Ann as ami. (1891) 15 M. 51 ; Sukee Raur,
(1893) 21 C. 97 ; Neurjan , 14 W. R. (Cr.) 39. «

(l) 16 B. 73.

(m) (1928) 30 Bom. L. R. 613 : 52 B. 403.

679

SEC. 373 ] BUYING MINOR FOR PROSTITUTION

II— defines ‘ illicit intercourse.’ Explanation II of s. 373 also
uses the expression in the same meaning.

373# Whoever buys, hires or otherwise obtains possession
Buying minor for of any minor under the age of eighteen years
purposes of prostitution, with intent that such minor shall at any age
clc be employed or used for the purpose of prostitu-

tion or illicit intercourse with any person or for anu unlawful
purpose, or knowing it to be likely that such minor will at any age
be employed or used for any such purpose, shall be punished with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.

“ Explanation I.— Any prostitute, or any person keeping
or managing a brothel, who buys, hires or otherwise
obtains possession of a female under the age of
eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female
with the intent that she shall be used for the purpose
of prostitution.

Explanation II. — “ Illicit intercourse ” has the same meaning
as that in section 372.

This section is a counterpart of the last section. It punishes buying, hiring
or otherwise obtaining possession of any minor under the age of sixteen for the
purpose of prostitution or for any unlawful or immoral purpose.

Legislative changes s — This section was amended by s. 2 of Act V of 1924
by which for the word ‘ sixteen ’ the word * eighteen ’ was substituted and the
Explanations were added by Act XVIII of 1924. Act V of 1924 and Act XVIII of
1924 have since been repealed by the Repealing and Amending Act (VIII of 1930).

Scope : — This section was intended to prevent trafficking in the employment
or use of minors as prostitutes or for a purpose, both immoral and unlawful (n).

The law does not specify the nature of the possession, nor its duration, nor
intensity. It merely specifics the object, namely, prostitution or illicit intercourse.
Whether, in each case, the possession is such as to be consistent with the purpose
or intention or knowledge of prostitution or illicit intercourse— this is the only test
which in law is necessary and sufficient (o).

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Plate of trial A minor married girl was brought with the consent of her
husband by accused No. 2 from Kashmir to Bombay at the expense of accused No. I
a brothel-keeper. On her arrival in Bombay, the girl was kept in the brothel and her
earnings were divided half and half by the two accused. On a prosecution of the
accused for an offence under s. 373/114, it was held overruling the contention
that what took place in committing the offence, which was completed in Bom*
bay (p).

(n) Per Scotland, C. J,, in Dowlath Beebi vV* Shaikh Ali t (1870) 5 M. H. C. R.
473 (477) : decision under the old Code now no longer good Jaw#

(o) Vithabai 'Sukke , (1028) 52 B. 403 : 30 Bom, L. R. 013.

(p) Batubhai Ganesham , (1927) 29 Bom. L. R. 490.

680 THE INDIAN PENAL CODE [ CHAP. XVI

Charge: -I (name and office of Magistrate , elc.) hereby charge you ( name
of accused ) as follows: —

That you, on or about the day of , at ,

bought (or hired or obtained possession of) XY % a person under tillage of eighteen
years with intent that the said XY shall at any age be employed or used for the
purpose of prostitution (or illicit intercourse, or for any unlawful and immoral
purpose or knowing it to be likely that the said XY will at any age be employed
or used for any such purpose) and thereby committed an offence punishable under
s. 373 of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

*buys, hires or otherwise obtains possession’ ; — “It is not, I think, essential
to the offence that the buying, hiring or otherwise obtaining of the possession of the
minors should be from a third person. The language of the section is quite appli-
cable to an agreement or understanding come to with the minor without the inter-
vention of a third person and the vice against which the section is directed is certainly

not of any less enormity in the latter case The words * buys ’ and

* hires ’ convey that meaning according to their ordinary acceptation, and giving
them due effect, it seems to me that the associated words ‘ or otherwise obtains
possession * were not intended to do more than include other modes of obtaining
the same kind of possession as that of a buyer or hirer. This, 1 think, is shown
more clearly to be the meaning intended by the provisions which follows as to the
- other essential of the offence the intent or knowledge of its being likely ‘ that such
minor shall be employed or used for the purpose of prostitution or for any unlawful
and immoral purpose * indicating plainly a.; it does an employment or use of the
minor at some time future to the obtaining of possession : — its effect is to my mind
strong to show that complete possession and control of the minor’s person ob-
tained by buying, hiring or otherwise with the intent or knowledge that by the
effect of such possession and control the minor should or would afterwards be
employed or used for either of the purposes stated is what the section was intended
to make punishable as a crime*' (q). This case was followed by the Bombay High
Court which has held that it i enough if it ^established that the accused in fact
obtained possession of the minor with intent that the minor shall be used for the
purpose of prostitution (r), but after the section has been amended the view in
Dawlath's case (q) is no longer good law. Now possession need not be from a third
person (s). It has been held in Vithabai Sukkas case (t) that the addition of the
words * illicit intercourse with any person ' has rendered obsolete the view in
T ippa's case.

‘ with intent that such minor shall be employed at any age for the
purpose of prostitution or illicit intercourse with any person or for any
unlawful or immoral purpose ’ See commentary on this head under the last
section. The use of the expression * for any unlawful and immoral purpose * shows
that this section is not confined in its applicability to minor girls only. If refers to
minor under the age of eighteen of either sex.

The taking of a minor girl as a temple dost though unattended by ceremonies
of adoption will raise a presumption of guilt under s. 372 throwing on the tak*£ the

(q) Per Scotland, <V J., in Dowlath Beebi v. Shaik Ali, (1870) M. H. C. R. 470,
(479).

(r) Shamsundcrbai, (1920) 45 520:, 22 Bom. h. R. 1234: 22 Cr. L. J. 29:

591 . a 141 > , r

(s) Shamsmulny Prnsti, A. T. R, (1930) Pat. 219. .

(1928) 52 B. 403 : 30 /Bom. L. R. 013: A. I. R. (1928) fioin. 330.

(u) (1892) 16 B. 737.

681

SEC. 374] UNLAWFUL COMPULSORY LABOUR

onus of proving absence of guilty knowledge pr intention. This section does not
require proof that the minor would necessarily be employed for the purpose of
prostitution ; it is enough if such is the probable result. The section does not also
require proof o| intention to employ the minor for such purposes during her
minority (v).

The framers of the Amending Act XVIII of 1924 while enacting Explanation
I„ s. 372, had in view DeVadasis but the Legislature acted cautiously.

Proof of inlention or knowledge Proof of intention or knowledge such as
arc mentioned in this section is almost entirely a matter of inference from circum-
stances. Where all the circumstances went to show that the intention of the accused
was to employ a certain girl as prostitute ar soon as she was physically ready for the
purpose, the Calcutta High Court held that under r. 107, illustration (a) of the
Indian Evidence Act, the burden lay on the accused of proving that she intended to
wait until the age of 16 years had been reached by the girl (w).

The addition of ‘ any age * by the Amending Act (XVIII of 1924) does not re-
quire the accused to wait till the age of 18 years of the minor girl.

Explanation I — is new and is almost in the same terms as Explanation I of
s. 372.

Explanation II ' This explanation says that ‘illicit intercourse* has the same
meaning as in s. 372.

See commentary on s. 372.

374. Whoever unlawfully compels any person to labour
against the will of that person, shall be
l.b“r''" punished with imprisonment of either de-

scription for a term which may extend to one
year, or with fine, or with both.

Person— s. 1 1 .

This section was probably enacted in order to suppress the forced labour by
which the landlords compelled the rjfots to render service to them in former times
and still claim as customary service. It does not apply to service enacted under a
contract, e.g, 9 in the case of coolies recruited for tea garden or service tenures where
persons by holding chakran lands under contract are compelled to labour for the
landlord.

Procedure : — Non-cognizable (x) — Warrant — Bailable — Compoundable —
Triable by any Magistrate.

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That i you, on or about the day of , at ,

unlawfully compelled XY to labour ( specify labour) against his will and thereby com-
mitted an offence punishable under s. 374 of the Indian Penal Code and within my
cognizance.

, And I hereby direct that you be tried on the said charge.

(v) Public Prosecutor v. Kanttantaf, (1913) 10 M. L. T. 501 ; 24 M. L. J. 211 :

(1913) M. W. N.JJ07 : H.Cr. L. J. 33 : 18 1, C. 257

(w) Khetramani Dasi t (J922) 35 C. L. J. 4 51 :*24 Cr. L. J, 104 : 71 I. C. 232 :
A. T. R. (1922) Cal. 339 decision under the old Code.

(x) The word “ non-cognizable M was substituted for ” may arrest without
warrant ” by Criminal Procedure Amendment Act XVIII of 1923.

682

THE INDIAN PENAL CODE

[chap. xVi

' unlawfully compels any persons ’ s— Petheram, C. J., held : “ A person
who insists that another who has consented to serve him shall perform his work,
does not unlawfully compel such person to labour against his will within the mean-
ing of s. 374 of the Penal Code, because it is a thing which such person has agreed to
do ; but if he assault such person for not working to his satisfaction, he commits an
offence punishable under s. 332 ” fy).

Of Rape.

375. A man is said to commit “ rape " who, except in the case

R hereinafter excepted, has sexual intercourse

with a woman under circumstances falling
under any of the five following descriptions : —

First. — Against her will.

Secondly . — Without her consent.

Thirdly. — With her consent, when her consent has been
obtained by putting her in fear of death, or of hurt.

Fourthly. — With her consent, when the man knows that he
is not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes herself
to be lawfully married.

Fifthly. — With or without her consent, when she is under
fourteen years of age.

Explanation. — Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.

Exception. — Sexual intercourse by a man with his own wife,
the wife not being under thirteen years of age, is not rape.

[Sexual intercourse by a man with his own wife is not rape
although the wife has not attained the age of thirteen years, if he
was married to her before the date on which this Act comes into
operation and she had attained the age of twelve years on that
date).

Legislative changes : — The age of ‘ twelve years ’ was substituted for ten
years in clause 3 and in the Exception by the Indian Criminal Law Amendment
Act (Act X of 1891, s. 1) which Act was passed as a result of the decision of the
Calcutta High Court in the case of Haree Mohan Mythee (z).

This section has been further amended by Act XXIX of 1925 by s. 2=of which
in clause Fifthly, for the word ‘ twelve ’ the word * fourteen ' has been Substituted
and in the Exception * thirteen ' has been substituted for ‘ twelve,’ and the words
in brackets printed in italics have been added bys. 4 of Act XXIX of 1925 which
Act received the assent of the Governor-General on the 23rd September I9J5 but
in view of section 2 of the Child Marriage Restraint Act No. XIX of 1929 - which
defines a female child as being one under fourteen years of age, it follows that the
husband will be punishable under that Act for marrying a girl below 14 years and
not under this section for rape. <

(yj Madan Mohan Biswas , f 1 892) 19 C. 57 2.

(z) (1890) 18 C. 49.

OP RAPE

683

SEC. 375]

1 Rape ’ was defined by Lord Hale to be the carnal knowledge of a woman
against her will (a). The gist of the offence of rape consists in the act being com-
mitted against the will of the woman or without her consent. The first clause
of the section refers to a woman who is in full possession of her senses and is capa-
ble of exercising her own volition ; the second clause refers to a case where the act
is committed 4 without her consent '—she may be in full possession of her senses
and reason and the act may have been committed against her consent, or she is
incapable of knowing what is being done, or supposes that something different
is being done or being aware of the nature of the act she supposes that it is being
done under circumstances which make it an innocent act ; the third clause refers to
a case where the consent is obtained by coercion, i.e., by putting her in fear of
death or of hurt ; and the fourth clause refers to a case where the consent is obtained
by fraud, i\e., by deceiving the woman to believe herself to be married with the
person committing rape, and the fifth clause deals with a case of rape on a child
under ‘ fourteen 4 years whose consent is immaterial. In short, the section refers
to cases of rape committed on the woman ‘against her will,’ i.e. t committed by force
or ‘ without her conrent.* The explanation shows that penetration is sufficient
to constitute the sexual intercourse necessary to this offence. The amendment in
Act XXIX of 1925 deals with the case of sexual intercourse by a man with his own
wife, the wife not being under thirteen years because of the matrimonial consent
she has given.

Analogous law r—The first statute applicable both to England as well as to
India providing punishment for rape was passed in 1821 (b). It has been repealed
and re-enacted by 24 and 25 Viet, c 100 in 1861 and in India by the passing of the
Indian Penal Code.

In English law there is an irrebutable presumption of law that a boy of 14
years of age is incapable of committing rape (c).

In England, a male under the age of fourteen years cannot be convicted of the
offence of carnal knowledge of a girl under the age of thirteen years (d) but he may
be convicted of an indecent assault (e). But the presumption of the English law
against the possibility of the commission of the offence of rape by a boy under the
age of fourteen years has no application in India (f).

A person physically incapable of committing the offence of rape cannot be
found guilty of an attempt to commit that offence. In India the potency of a
person charged with that offence has to be proved by evidence in each case, as unlike
the English law, there is no limit of age laid down under which the law presumes a
person to be physically incapable of committing rape. A person proved to have
the power of erection must be presumed to be physically capable of committing
rape (g).

In England, a husband and a boy under the age of puberty may be principals
in the second degree and be punished for aiding and abetting (h). In the famous
case of Audley , one indictment was for a rape upon his own wife for holding her by
force, while one of his minions forcibly, against her will, had carnal knowledge of

(a) I Hale P. C. G28,

(b) 9 Geo. IV c. 31.

(c) 1 Hale P. C. 830; Broom-Bridge, (1836) 7 C. and P. 58; Phillips, (1830)

. C. and P. 736.

(d) Waite, (1802) 2 Q. B. 600 (601).

(e) Williams, (1893) 1 Q. B. D. 320.

(f) Paras Ram Dube, (1915) 37 A. 187.

(g) Gopala, (1896) Rat. Unrep. Cr, C. 865.

(b) Elder skaw, (1828) 3 C. and P. 396.

THE INDIAN PENAL CODE

684

[CHAP. XVI

her and the other two indictments were for Buggery with a man and he was sen-
tenced to death, being found guilty of both the indictments (i).

< Clause 1 — * Against her will * : — As the word (i) * * 4 will * implies consciousness,
volition and mental determination, consent after the fact amounts to doing the
act against the will of the woman. “ It is no mitigation of this offence that the
woman at last yielded to the violence, if such her consent were forced by fear of
death, or of hurt. Nor is it any excuse for the party indicted that the woman con-
sented after the fact ; nor that she was a common strumpet ; for she is still under
die protection of the law, and may not be forced, nor that she was first taken with
her own consent ; if she were afterwards forced against her will ; nor that she
was a concubine to the ravisher, for a woman may forsake her unlawful course of
life and the law will not presume her incapable of amendment” (j).

Sexual intercourse by a man with a woman with her free consent, i.e., consent
obtained without putting her in fear of injury, amounts to rape ; and the Judge
should leave the question to the Jury, and not direct them to find that the woman's
consent after a considerable struggle, renders the charge of rape nugatory (k).

Can there be a rape on a prostitute ? At first the proposition would
seem to be startling and it may sound as a contradiction in terms. It is submitted
that the answer will be in the affirmative where sexual intercourse is committed
against her will or without her consent, although the character of the prosecutrix
may weigh with the Court in not basing a conviction on her testimony alone.

Clause 2—* Without her consent ’—See s. 90, supra, for ‘consent/

If a man by drugs or by liquor renders a woman incapable of knowing what
she is about, and takes advantage of her condition to have connection with her, this
is as much rape as if he had knocked her down and rendered her senseless (I).

If a man has or attempts to have connection with a woman while she is asleep,
it is no defence that she did not resist, as she is incapable of resisting. The man
can therefore be found guilty of a rape or of an attempt to commit a rape (m).
Where a medical man on the pretence of performing a surgical operation had a
carnal intercourse with the prosecutrix, a girl of 19, and it appeared that she sub-
mitted to what was done, not with any intentiofi that he should have sexual con-
nection with her, but under the belief that he was merely treating her medically and
performing a surgical operation, that belief being wilfully and fraudulently induced
by the prisoner, he was found guilty of rape (n). A contrary decision (o) was dis-
approved of in Reg. v. Flattery (n) which was finally overruled in England by
Statute 45 and 46 Viet., c. 69, s. 4.

No consent that is given by a child is a 5 consent 4 within the meaning of this
section.

Mere submission is not consent The consent to be a valid defence must
be proved to be a free consent

Consent induced by fear : — If it is induced by fear, it is no consent but
submission. As Coleridge, J., told the Jury : “ Tf ere i? a difference between consent
and submission ,* every consent involves a submission ; but it by no means follows
that a mere submission involves consent. It would be too much to say that an
adult submitting quietly to an outrage of this description was not consenting.

(i) Lord Audley's case, (1 63 J) 3 St. Trials 40) .

. (]) 1 East., P.C. 444 ; 1 Hale. P. C. 628 ; 1 Hawk P. C. 122.

(k) AkbarKazee , (1864) l VV. R. (Cr.) 21.

(l) Reg. v. Camolin, (1845) 1 Den. C. C. 80 : 1 Cox. 220.

(m) Reg. v. Myets, 1872) 12 Cox. 311.

(n) Reg. v. Flatten, (IH77, 2 Q. 15. D. 410 : 13 Cox. 38.

(o) Reg. v. Barrow, (I860) L. R. 1 C. C. 160.

OF RAPE

685

SEC. 375]

On the other hand, the mere submission of a child, when in the power of a strong
man, and most probably acted upon by fear, can by no means be taken to be such
a consent as will justify the prisoner in point of law. You will, therefore, say
whether the submission of the prosecutrix was voluntary on her part or the result
of fear under the circumstances in which she was placed. If you are of the latter
opinion, you will find the prisoner guilty” (p).

Sexual intercourse by a man with a woman without her free consent, i.e., a con-
sent obtained without putting her in fear of an injury, amounts to rape ; and the Judge
should leave the question to the Jury, and not direct them to find that the woman’s
consent after a considerable struggle renders the charge of rape nugatory (q).

Consent must be at the time of the act 5 — It is no defence that the woman
consented at first if the offence was afterwards committed against her will and
by resort to violence, nor is it any excuse for the party indicted that the woman
consented after the fact (r).

Does fraud vitiate consent? : — In England a prisoner was convicted upon
an indictment charging him with ‘ unlawfully and maliciously inflicting grievous
bodily hurt’ upon his wife, and with * an assault ’ upon her ‘ occasioning actual
bodily harm ’ under Ss. 20 and 47 respectively of 24 and 25 Viet., c. 100. It
appeared that at a time when the prisoner knew, but his wife did not know, that
he was suffering from gonorrhoea, he had connection with her, that the result
was that the disease was communicated to her and that had she been aware of his
condition, she would not have submitted to the intercourse, and the Judges held
that the conduct of the prisoner did not constitute an offence under either seccion of
the statute and. quashed the conviction passed by the Central criminal Court (s).
Stephen, J., iit that case fs) observed : “ I do not think that the maxim that fraud
vitiates consent can be carried further than this in criminal matters. It is commonly
applied to cases of contract, because in all cases of contract the evidence of a con-
sent not procured by force or fraud is essential, but even in these cases care in the
application of the maxim is required, because in some instances suppression of
the truth operates as fraud, whereas in others at least a suggestion of falsehood
is required. The act of intercourse between a man and a woman cannot in any
case be regarded as the performance of a contract. In the case of married people
that act is part of a great relation based upon the greatest of all contracts, but
standing on a footing peculiar to itself. In all other cases the immorality of the
act is inconsistent with any contract to it. Thus in no case can considerations
relating to contract apply to it. The effect of fraud upon a contract is to render
it voidable at the option of the party defrauded. It is either criminal if the woman
does pot consent, or if her consent is obtained by certain kinds of fraud, or it is,
as this was, a breach of matrimonial duty, or it is not criminal at all ” (s).

Mere submission by a child of tender years to an indecent assault without
an active sign of dissent, the child being ignorant of the nature of assault, does
not amount to * consent * so as to take the offence out of the operation of the
criminal law (t).

But whatever the English law may be, such consent will be no * consent * under
the Indian Penal Code , as it would not be an excuse in view of the provisions of s. 90,
supra.

Clause 3 : — A consent which has been obtained by putting the woman in
fear of death or of hurt is no consent excusing the crime (u).

(p) Beale, 35 L. J. M. C. 00. ~

iq) Akbar Kazi t (1804) 1 W. R. (Cr.) 21.

(r) I East, P. C. 444.

(s) Per Stephen, , J., in Clarence , (1889) 22 Q. B. D. 23 (44).

(t) Lock , (1872) 12 Cox. 244.

(u) S. 90, supra .

086

THE INDIAN PENAL CODE

[C»AP, XVI

Clause 4 This clause simply says that the crime is committed with the
consent of the woman who under a misconception believes that he is her husband.

This clause also is covered by s. 90, supra . In England, it has been held
that if a man has connection with a woman, she consenting under the belief that
he is her husband, this is not rape, but an assault (v). Where a married woman
was asleep in bed with her husband, the prisoner got into the bed and proceeded
to have connection with her, she being then asleep, but when she awoke, she at
first thought he was her husband, but on hearing him speak, and seeing her hus~
band at her side, she flung the prisoner off and called out to her husband, when the
prisoner ran away, the prisoner was held guilty of rape (w). But in an earlier
case, it was held that if a married woman consents, under the belief that the man
is her husband, the man cannot be convicted of rape (x).

Clause 5 t-^Th is clause was enacted to protect children because no consent
is sufficient when it is given by a child.

The earliest age on which a girl could be said to consent to intercourse was
originally fixed at 10 years and then by the passing of Act X of 1891 the age was
raised to twelve to bring the age of consent in conformity with the English law.
The Amending Act XXIX of 1925 has raised the age of consent to 14 years in
this clause.

Explanation Penetration is necessary to constitute rape. Vulval penetra-
tion is sufficient for a conviction under s. 376 (y). “ Tq constitute penetration it
must be proved that some part of the virile member of the accused Whs within the
labia of the pudendum of the woman, no matter how Jittle ” (fe). In case of
rape, the only question for the Jury is whether the private pfcrts of the man did
or did not enter into the person of the woman, and the reason for the limitation
to that single inquiry seems to be that it was thought that the law was holding
itself up to contempt by having the subtle and critical subjects of emissions, etc.,
discussed before Judges and Juries. Therefore though it may appear from the
evidence, beyond all possibility of doubt that the private parts were disturbed
immediately after penetration, and before the completion of the purpose, yet he
must be found guilty of having committed the complete qffence of rape (a).

Though it is net necessary, in order to complete the offence of rape, that the
hymen should be ruptured, provided it is clearly proved that there was penetra-
tion, yet where that which is so near to the entrance has not been ruptured, it is
very difficult to come to the conclusion that there has been penetration, so as to
sustain the charge (b). To constitute penetration on a charge of this offence,
the parts of the male must be inserted in those of the female ; but as a matter of
law, it is not essential that the hymen should be ruptured (c).

Attempt to commit rape Where the offence of rape is incomplete for
want of penetration, the accused may be convicted of an attempt to commit rape,
although the attempt is not separately charged (d). An indecent assault upon a
woman does not amount to an attempt to commit rape, unless the Court is satisfied

(v) Regina v. William Williams , (1838) 8 C. and P. 280 overruled by 48 and
49 Viet. c. 09, s. 4.

(w) Young, (1878) 14 Cox, 114,

(x) Clarke , 0 Cox. 412.

(y) Natha, A. I. R. (1923) Lah. 536, following t 0. and K. 393.

(z) Henry Alien, (1839) 9 C. and P. 31.

(a) Ibid!

(b) M'Rue, (18381 8 C. and P. 641.

(c) Jordan and Cowmeadow, {1839) 9 C. and P. 118; Hughes, (1841) 9 C. and

P. 752 ,

(d) S. 238 (2 A) of the Code of Criminal Procedure,

OF RAPE

687

SEC. 376]

that there wag a determination in the accused to gratify his passion at all
events in spite of all resistance (e).

Where the accused stripped a girl nearly naked and was lying upon Tier when
her cries attracted people to the spot, it was held that the offence committed was
an attempt to commit rape (f).

Exception The exception to the old s. 375 has been deleted and the words
in italics in brackets have been added by Act XXIX of 1925.

Where an accused was charged of rape, but the facts proved were consistent
with the accused’s innocence of the crime charged and showed that the sexual
intercourse was with the consent of the complainant, he was acquitted of the offence
charged (g).

376. Whoever commits rape shall be punished with trans-
„ portation for life, or with imprisonment of

either description tor a term which may
extend to ten years, and shall also be liable to fine, unless the wo-
man raped is his own wife and is not under twelve years of age, in
which case he shall be punished with imprisonment of either descrip-
tion for a term which may extend to two years, or with fine, or
with both.

This section prescribes the punishment for the offence of rape defined in
s. 375.

Legislative changes i — The words printed in italics have been added by
s. 3 of Act XXIX of 1925.

Procedure : — If the sexual intercourse was by a man with his wife, amounting
to rape : — Non cognizable — Summons — Bailable — Not compoundable — Triable by
Court of Session, Chief Presidency Magistrate or District Magistrate.

In any other case — Cognizable — Warrant — Not bailable Not compoundable —
Triable by Court of Session.

Place of trial Where the accused was charged under s. 366 for having
kidnapped a girl at Bombay and the second charge was one of abetment of rape
at Ahmedabad, held, the Bombay Court had no jurisdiction to try the second
offence (h).

As Lord Hale says : “ It is an accusation easily to be made and hard to be
proved, and harder to be defended by the party accused, though never so innocent, ”
the prosecution is to prove —

(1) that some male person had sexual intercourse with the woman in

question ;

(2) that the accused was that male person ;

(3) that such intercourse was committed against her will or without her

consent or with her consent as mentioned in clause three, four or
five of s. 375 ;

(4) that such woman was not wife of the accused or if she was his wife,

she was under thirteen years of age ;

(5) that there was penetration.

(c) Shanker, (1881) 5 B. 403. following Lloyd, 7 C. and P. 318.

(f) Kadam, (1910) P. VV. R. No. 45 of 1910.

(g) Kyaw Hla. 4 Bhr. L. T. 136 : 12 Cr. L. J. 084 : 12 I. C. 848.

(h) Mohan Lai Aditram, (1928) 30 Bom. L. R 1253.

688

THE INDIAN PENAL CODE

[CHAP. XVI

Evidence t— In the majority of cases, the only direct evidence of the rape is
that of the prosecutrix. Her evidence should be received with caution though
not with distrust. The most important point is the medical evidence. An examina-
tion of the private parts as well as the other parts of the woman's body will show
whether there is indirect evidence that sexual intercourse did take place* The
medical expert must have examined the prosecutrix immediately after the alleged
offence. The next thing for consideration is whether the connection, if it took
place, was against her will — on this point, the character of the prosecutrix, her inti-
macy with the accused, and the amount of familiarity which she had permitted him
to indulge in ; the place in which act took place as showing that she might have
obtained assistance ; the distance at which other persons were passing by ; any
screams or cries which were heard ; her conduct immediately after the outrage ; her
appearance and so forth should be considered (i).

If the prosecutrix immediately after the outrage made a complaint of rape, and
stated details, such evidence would be admissible under s. 8, illustration (j)» Indian
Evidence Act, I of 1872. But if she stated the details on being questioned by a third
party, such evidence would not be admissible under s. 8, but may be admissible
under s. 157, Evidence Act.

The question of resistance often arises which may lead to the tearing of
clothes and even injuries to private parts. If she resisted, the question arises
whether she cried for help or not and the next question arises who went to the place
of occurrence to render her help. On this question it is better to keep in view the
observation of Mr. Mayne (3rd Ed., p. 716) quoted above.

The Lahore High Court has held that it is hardly possible^ that any self-respect-
ing woman would come forward in a Court of Justice to make a humiliating state-
ment against her honour of having been raped unless it was absolutely true (j).

Evidence held insufficient for conviction Where there was no physical
proof of the rape, the inference from medical evidence was that at the time of the
alleged offence, the girl was not a virgin, no trace of semen was found on her
clothes and the girl of 17 was said to have been forced through a low arch only 3
feet high, the Lahore High Court held that the evidence was not sufficient to
support the conviction for rape (k). #

Evidence of complainant s— In cases of rape, it would be quite unsafe to
convict an individual merely on the accusation of the woman who had been
raped (1).

The fact that the girl was ftfrgo intacta up to the date of the occurrence is very
strong proof against the committing of rape with the consent of the victim in rape
cases (m).

For the defence to succeed :—( I ) Prove by cross-examination or by
adducing evidence that the character of the prosecutrix is bad.

(2) If the medical examination was immediately after the alleged occurrence,
suggest to the medical expert in the case of a woman who is accustomed to sexual
intercourse whether a rape will leave any marks on the genitals.

If she has resisted, it is more likely that signs of violence will be found on other
parts of her person, elicit this in cross-examination.

(i) 1 Hale, P. C. 633 (63(f) quoted in Mayne, 'Crimina* Law of India/ 3rd edition
p. 716.

(j) Lttbh Singh. { 1 922) 6 L. L. J. Ill : 24 Cr. L. J. 877 : 75 L C. 77 : A. I. R.
(1023) Lab. 291 , see cotitta Kaushi Pant, 23 Cr. L. J. 475 : 67 I. C. 827 (Luh.).

(k) Amiruddin, A. 1. R. (1923) Lah. 238.

<\) Kaushiram. 23 Cr. L. J. 475 : 67 I. C. 827.

(m) Saltzn, A. 1. R. (1925) I.ah. 613,

SEC. 37® ]

OF RAPE

B89

(3) If the plea is want of physical capacity, onus is on the defence to prove
impotency by medical evidence.

(4) If the plea is that the connection was had with the consent of the woman,
the burden of proof is on the accused to prove consent— free consent and not
consent within the meaning of s. 90, supra .

(5) Prove the age of the prosecutrix by medical examination.

False charges of rape : — Taylor says : “ Medical evidence is commonly
required to support a charge of rape, but it is seldom more than corroborative ;
the facts are, in general, sufficiently apparent from the statement of the prosecutrix.
There is, however, one case in which medical evidence is of some importance,
namelv, when a false accusation is made. In some instances, as in respect to rape
on infants and children, the charge may be founded on mistake ; but in others
there is little doubt that it is often wilfully and designedly made, for motives into
which it is here unnecessary to inquire ’’ (n). Johnston, J., (sitting singly) held
in JalaVs case (o) that medical evidence is still of help to the prosecution even
where the complainant is pregnant and that mere finding of semen on the com-
plainant's clothing as evidenced by the chemical examiner’s report is not sufficient
to prove that the complainant was actually raped. In JalaVs case (o) the High
Court altered the conviction to one under s. 354.

Presumption from conduct s — The fact that the charge of rape was brought
against the accused immediately after the occurrence, coupled with the medical
evidence and the fact that he was assaulted by Lambarder and arraigned before
the panchayat then and there, leads strongly to the conclusion that the rape story
was no fiction though the friends of the girl being ignorant rustics may not be
wise enough to look for blood or to preserve it as evidence in support of the
charge (p).

Attempt to commit rape : — The fact that a vernacular record showed
that the accused put his finger in the private parts of the complainant coupled with
the absence of semen on the pyjama of the girl and the absence of marks on the
male organ of the accused were held to be sufficient circumstances for conviction
for an offence of attempt to commit rape and not for rape (q).

Charge to the Jury s— It is a* misdirection to direct the Jury that the
character of the prosecutrix is not relevant (r).

Where the Judge in his summing up said : “ You will observe that in this case,
the sexual intercourse was against the girl’s will afid without her consent, or at
any rate, with only such consent as she gave under fear of the accused’s threat of
violence to her instead of saying as he ought to have done : 4 You will have to
determine upon the evidence in this case whether the sexual intercourse was against
the girl’s will, etc. ” held , this amounted to clear misdirection (r 1 ).

Although an accused charged with rape may not take up the plea of consent
and may simply deny the occurrence, # it is a serious misdirection in the charge if the
Jury are told that they need not consider the question of the age of the girl and her
consent. They must be directed that nevertheless, before they can convict, they
must find that the prosecution has established in addition to the factum of sexual

(n) Tavlor 'Medical Jurisprudence' Vol. II, p. 116.

(o) (1929) 30 P. L. R. 049: A. T. R. (1930) Lah. 193 (\).

(p) Hussain Khan, (1922) 25 Cr. L. J. 317 : 76 I. C. 1037 : A. I. R. (1923) Lah.
332. '

(q) Sadhu Singh , (1922) 24 Cr. L. J. 625 : 73 I. C. 513 : A. 1. R. (1923) Lah.

167.

(r) Keramat Mandal , (1926) 42 C. L. J. 524 (527),

(rl) Ali Fakir , (1897) 25 C. 230.

50

THE INDIAN PENAL CODE

690

[ CHAP. XVI

intercourse, that the girl was below 14 or else that the accused committed the act

- against her will or without her consent (r J ).

#

Charge:— I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at- ,

did commit rape on XY and thereby committed an offence punishable under
s. 376 of the Indian Penal Code and within the cognizance of the Court of Session
(or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Punishment : — This being a serious offence, the maximum punishment is
rigorous imprisonment for ten years, but the offence is capable of degrees.

The Law Commissioners observed : “On the one hand let us take the case of
the chaste high caste female, who would sacrifice her life to save her honour,
contaminated by .the forcible embrace of a man of a low caste, or of one who is
below caste, say a Chandala or a Pariah ; on the other hand, that of the woman
without character, oif any pretensions to purity, who is wont to be easy of access.
In the latter case if the woman from any motive refuses to comply with the solicita-
tion of a man and is forced by him, the offender ought to be punished ; but surely
the injury is infinitely less in this instance than in the former “ (r 3 ).

The measure of punishment in a case of rape should not depend on the social
position of the party injured, but on the greater or less atrocity ot the crime, the
conduct of the criminal and the defenceless and unprotected state of the injured
female (r 4 )- The fact that the family of the injured girl have condoned the offence
on being paid a sum of money should not be taken into consideration in determining
the heniousness of the offence or of the punishment to be inflicted (s).

•V

Under Ss. 57, 376 and 511, a sentence of 10 years’ transportation, or pf 5
years’ rigorous imprisonment may be passed for the offence of attempt to
commit rape ; but a sentence of 7 years' rigorous imprisonment commutable
under s. 59 to 7 years of transportation is illegal (s 1 ).

The accused may on second conviction be sentenced to whipping in addition
to rigorous imprisonment (s 3 )» and in case of juvenile offenders on first conviction

sentence of whipping may be inflicted (s 3 ).

■ »■

Separate sentences — under Ss. 66 and 3 6 are not illegal (s 4 ).

Death of complainant by suicide owing to shame An inference
adverse to the accused cannot be drawn from the fact that the complainant in a case
of rape was very much ashamed and even committed suicide owing to the shame
brought on her ; the fact of the suicide should not be taken into consideration in
passing sentence because that is neither the natural and probable consequence of
the accused’s act (s 5 ).

(r2) Abdul Khalique, (1933) 37 C. W. N. 484.

(r3) First Report, s. 449.

(r4) Jhantala Nashya, (1806) 0 W. R. (Cr.) 59.

(s) Local Government v. Pyarelal, (1917) 20 Cr. L. J. 047 (Nag.) : 52 I. C. 423.
(si) Joseph Metian, (1868) 10 W. R. (Cr.) 10.

(s2) Whipping Act (V of 1804) s. 4, cl. (0).

(s3) Motha , (1928) 27 A. L, J. 224.

(s4j Ghulam Muhammad, (10 26) 7 L. 484 : 99 1. C. 344.

(sfi) Nga San Po t 19 Cr. L. J. 155 (L. B.) : 43 i. C. 443.

SEC. 377 ]

OF UNNATURAL OFFENCES

691

Of Unnatural Offences.

377. Whoever voluntarily has carnal intercourse agginst
IT A , _ the order of nature with any man, woman or

Unnatural offences . . « i n • i j , . .•

animal, shall be punished with transportation
for fife, or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.

Explanation . — Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.

This section describes the offence as consisting in a carnal intercourse against
the order of nature by a man with man, or in the same unnatural manner with
woman, or by man or woman in any manner with beast (t).

Analogous law : — The corresponding provision is to be found in the present
English Statute 24 and 25 Viet., c. 100, s. 61 of which runs thus

“ S. 61. Whosoever shall be convicted of the abominable crime of buggery

e . j committed either with mankind or with any animal shall

Sodomy and beastiality be Hable at the discre tion of the Court to be kept in penal

servitude for life, or for any term less than ten years."

The passive agent in this offence is necessarily an accomplice and being an
accomplice his testimony requires corroboration.

Procedure Cognizable— Warrant— Not bailable —Not coumpoundable—
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of — , at ,

had carnal intercourse against the order of nature with (specify the kind

of animal whether* man, woman or other beast) and thereby committed

an offence punishable under s. 377 of the Indian Penal Code, and within my cog-
nisance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge. •

Charge to the Jury : — Where a Judge apparently did not give a summary
of the evidence, but only told the Jury that there were discrepancies in the
evidence, without pointing out what these discrepancies were and further used the
expression in the summing up more than once : ‘‘ If you are morally convinced,
your verdict should be that of ‘guilty,’ held that this amounted to misdirection and
the conviction should be set aside (t 1 ).

Evidence — to support a charge under this section must be very convincing as
it is very easy to bring a charge but extremely difficult to refute it. The guilt of a
person accused of a crime has to be established by the evidence for the prosecution
and not by the weakness of the defence (u). Stains of semen constitute important
evidence (v).

Evidence of victim : — A conviction under this section can safely be based
on the uncorroborated testimony of the victim if it is not doubtful. The prosecu-
tion is not bound to produce witnesses who are not expected to speak the truth (x).

(t) 1 Hale, P. C. 669 ; 1 Hawk. P. C. 4 ; i East P. C. 480.

(tl) Enayet Hussain, (1926) 49 A. 209.

(u) Sain Das, (1926) 8 L, L. j. 180 : 27 P. L. R. 353 : A. I. R. (1926) Lah. 375.

(v) Devi Das, (1928) 10 L. 794: A. I. R. (1930) Lah. 319 (2).

(w) Khairati , (1884) 6 A. 204.

(x) Sarder Ahmad, {1915) P. L. R. 185 of 1915 : P. W R. No. 42 of 1914 : 16
Cr. L. J. 266: 28 I. C. 154.

692 THE INDIAN PENAL CODE [ CHAP. XVII

A contrary view has been held in a later case, life., that in a charge of offence under
this section, it is as a rule unsafe to convict on the uncorroborated testimony of the
personal whom the offence is said to have been committed unless for special
reasons that testimony is entitled to special weight (y).

Unnatural offence: — Where a person was tried for an unnatural offence
and convicted on a charge which did not allege the time when, place where, or point
to any known or unknown person with whom the offence was committed, and without
any proof of these particulars, the facts proved against him only being that he habit-
ually wore woman's clothes and exhibited physical signs of having committed the
offence, it was held that the conviction was not sustainable (z).

Where the prisoner was indicted for having committed an unnatural offence
with his own wife, Patterson, J., told the Jury that a married woman who. consents
to her husband's committing an unnatural offence with her is an accomplice in the
felony, and as such her evidence requires corroboration, although consent or non-
consent is quite immaterial to the offence (a).

CHAPTER XVII.

Offences against Property.

This Chapter deals with the offences against property and the principle under-
lying this Chapter is the protection of property. This Chapter is subdivided into the
following sub-heads: —

(1) Theft — Ss 378-382).

(2) Extortion — (Ss. 383-389).

(3) Robbery and Dacoity — (Ss. 390-402).

(4) Criminal Misappropriation of property — (Ss. 403-404).

(5) Criminal Breach of Trust— (Ss. 405-409).

(6) Receiving of stolen property— (Ss. 4i0-414).

(7) Cheating — (Ss. 415-420).

(8) Fraudulent Deeds and Dispositions of Property— (Ss. 421-424).

(9) Mischief— (Ss. 425-440).

(10) Criminal Trespass — (Ss. 441-462).

Of Theft.

378. Whoever, intending to take dishonestly any moveable
Thrft property out of the possession of any person

without that person’s consent, moves that
property in order to such taking, is said to commit theft.

Explanation i . — A thing so long as it is attached to the
earth, not being moveable property, is not the subject of theft ;

(yl Ganpat, P. L. R. No. 73 of 1818 : P. W. R. No. 38 of 1918 : 19 Cr. L. J. 946 :
47 I. C. 670.

It) Jellyman, (1838) 8 C. and P. 604.

(a) Sardet Ahmad, (1916) P.L.R. 186 of 1916 : P,W,R. No. 43 of 1914 : 16 Cr.
L. J. 266 : 28 I.C, 164. ,

SEC. 378 ]

OFFENCES AGAINST PROPERTY

693

but it becomes capable of being the subject of theft as soon as it
is severed from the earth. *

Explanation 2 . — A moving effected by the same act which
effects the severance may be a theft.

Explanation 3 . — A person is said to cause at hing to move by
removing an obstacle which prevented it from moving or by
separating it from any other thing, as well as by actually moving it.

Explanation 4 . — A person, who by any means causes an
animal to move, is said to move that animal, and to move every-
thing which, in consequence of the motion so caused, is moved
by that animal.

Explanation 5 • — The consent mentioned in the definition
may be express or implied, and may be given either by the
person in possession, or by any person having for that purpose
authority either express or implied.

Illustrations .

(a) A cuts clown a tree on Z’s ground, with the intention of dishonestly taking
the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed
the tree in order to such taking, he has committed theft.

(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it.
Here, if A’s intention be dishonestly to take the dog out of Z’s possession without
Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A .

(c) A meets a bullock carrying a box of treasure. He drives the bullock in a
certain direction, in order that he may dishonestly take the treasure. As soon as
the bullock begins to move, A has committed theft of the treasure.

(d) A being Z’s servant, and entrusted by Z with the care of Z’s plate, dis-
honestly runs away with the plate, without Z’s consent. A has committed theft.

(e) Z t going on a journey, entrusts his plate to A, the keeper of a warehouse,
till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate
was not in Z’s possession, ft could not therefore be taken out of Z’s possession,
and A has not committed theft, though he may have committed criminal breach of
trust.

(J) A finds a ring belonging to Z on a table in the house which Z occupies. Here
the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.

(g) A finds a rin§ lying on the high road, not in the possession of any person.
A , by taking it, commits no theft, though he may commit criminal misappropriation
of property.

(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing
to misappropriate the ring immediately for fear of search and detection, A hides
the ring in a place where it is highly improbable that it will ever be found by Z ,
with the intention of taking the ring from the hiding place and selling it when the
loss is forgotten. Here A t at the time of first moving the ring, commits theft.

(i) A delivers his watch to Z t a jeweller, to be regulated. Z carries it to his
shop. 4# »ot owing to the jeweller any debt for which the jeweller might lawfully
detain the watch as a security, enters the shop openly, takes his watch by force out
of Z’s hand, and carries # it away. Here A , though he may have committed criminal
trespass and assault, has not committed theft, inasmuch as what he did was not done
dishonestly.

694

THE INDIAN PENAL CODE

[CHAP. XVII

( j ) Tf A owes money to Z for repairing the watch, and if Z retains the watch
lawfully as a security for the delft, and A takes the watch out of Z’s possession, with
the intention of depriving Z of the properly as a security for his debt, he commits
theft, inasmuch as he takes it dishonestly.

(ft) Again, if A , having pawned his watch to Z , takes it out of Z’s possession
without Z’s consent, not having paid what he borrowed on the watch, he commits
theft, though the watch is his own property, inasmuch as he takes it dishonestly.

(/) A takes an article belonging to Z out of Z’s possession without Z’s consent,
with the intention of keeping it until he obtains money from Z as a reward for its
restoration. Here A takes dishonestly ; A has therefore committed theft.

(m) A, being on friendly terms with Z t goes into Z’s library in Z’s absence,
and takes away a book without Z’s express consent for the purpose merely of reading
it, and with the intention of returning it. Here, it is probable that A may have con-
ceived that he had Z’s implied consent to use Z’s book. If this was A’s impression,
A has not committed theft.

(«) A asks charity from Z’s wife. She gives A money, food and clothes, which
A knows to belong to Z, her husband. Here it is probable that A may conceive
that Z’s wife is authorized to give away alms. If this was A’s impression, A has
not committed theft.

( 0 ) A is the paramour of Z's wife She gives A valuable property, which A
knows to belong to her husband Z, and to be such property as she has not authority
from Z to give. If A takes the property dishonestly, he commits theft.

(/>) A, in good faith, believing property belonging to Z to be A’s own property,
takes that property out of B's possession. Here, as A does not take dishonestly,
he does not commit theft.

379. Whoever commits theft shall be punished with im-
Punishment for theft, pnsonment of either description for a term
which may extend to three years, or with

fine, or with both.

This section provides punishment for theft defined in the preceding section.

Analogous law s —There is no corresponding provision in the English law.
The English law of larceny is a narrower offence than 4 theft * as defined in s. 378.
Therefore English cases will not have much practical bearing except where the
English law and the Indian law are commod, t)iz. 9 in cases of dishonest intention,
taking without a person’s consent, and case* of immoveable property which arc
excluded from the category of this offence., / *

Procedure Cognizable — Warrant*-Not bailable — Not compoundable —
Triable by any Magistrate and friable summarily where the value of the pro-
perty stolen does not exceed fifty rupees.

The Prosecution is to prove —

(1) that the subject matter of the theft is moveable property ;

(2) that it was in the possession of any person ;

(3) that the accused moved it;

(4) that the accused did so without the consent of the person in possession ;

(5) that the accused moved that property intending to take it out of the pos-

session of such person;

(6) that he did so dishonestly. %

? , r

Charge :~I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows _ r .

SEC. 379 ]

THEFT

695

That you, on or about the day of— , at- ,

committed the theft of (specify the thing ) by taking it out of the possession of XY,
and thereby committed an offence punishable under s. 379 of the Indian Penal
Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Onus on the defence : — Where the plea set up by the accused is 4 bona fide
claim of right ’ the defence is to substantiate such plea either by cross-examination
or by adducing evidence.

Place of trial : — The offence of theft, or any offence which includes theft
or the possession of stolen property, may be inquired into or tried by a Court within
the local limits of whose jurisdiction such offence was committed or the property
stolen was possessed by the thief or by any person who received or retained the same
knowing or having reason to believe it to be stolen (b).

Alteration of conviction under s. 379 to one under s . 147, on appeal Where
the accused was charged under s. 379, and convicted, but on appeal it was held
that no theft was committed but the District Magistrate convicted him under
s. 143, the High Court set aside the conviction inasmuch as the accused was
prejudiced by the alteration of the conviction to one under s. 143 (c).

Evidence of theft Under s. 1 14 (a), Indian Evidence Act (I of 1872), the
Court may presume that a man, who is in possession of stolen goods soon after the
theft, is either the thief or has received the goods knowing them to be stolen unless
he can account for possession. This presumption presupposes a previous theft
and does not apply where the defence is 4 bona fide claim of right \ Where a person
is accused of an offence under s. 411, he cannot, where the circumstances
do not raise the presumption that he received the property knowing it to be stolen,
be convicted of that offence, merely because he is in possession of the property (d).
The fact of stolen property being found concealed in a man’s house would be suffi-
cient to raise a presumption that he knew the property to be stolen property, but it
would not be sufficient to show that it had been acquired by dacoity (e).

Where there is no direct evidence of theft but there is abundant evidence to
prove the loss of things stolen, it was held that the conviction may be had (f).
Lord Hale says : I would never cdhvict any person for stealing the goods of an
unknown person, merely because he would not give an account of how he came
by them, unless there was due proof iftade that there was a felony committed by
these goods” (g). *

Where two persons were tried Whether, one as the thief, the other as the receiver
of property stolen and at the close of the case for the prosecution there was no evi-
dence at all against the receiver, held that it was not competent to the Court to take
into account against the receiver a statement rpade by the thief in answer to
questions put by the Court and to convict him on the strength of it (h).

Joint trial : — A and B are both charged with theft, and B is charged with
two other thefts^ committed by him in the course of the same transaction. A and B
may be both tried together on a charge, charging both with the one theft, and B
alone with other two thefts (i).

(b) S. 181 (3), Cr. P. Code.

(c) Dibakar Bene v. Saktidar Kabiraj . (1027) 54 C. 476: 31 C. W. N. 527
distinguishing Begu , (1925) 52 I.A. 191-6 L. 226*30 CAV.N. 581.

(d) Burke , (1884) 6 A. 22 4.

(e) Malhari, (1882) 6 B. 731.

(f» Burton, (1854) 23 L. I* M. C. 52.

(g) 2 tta?c, P. C. 290.

(h) " Mahadeo Prasad t (192&) 45 A. 323 * 21 A. L J. 179 : 25 Cr. L. J. 305 : 76
I. C. 1025 : <A*I. R. (1923) 322.

(i) Ulastratipn, (c)*s. 239, Criminal Procedure Code.

096

THE INDIAN PENAL CODE

[ CHAP. XVll

Persons accused of an offence which include theft, extortion or criminal
misappropriation and persons accused of receiving or retaining or assisting in the
disposal or concealment of property possession of which is alleged to have been
transferred by any such offence committed by the first named person or of abetment
of or attempting to commit such last named offence may be charged with and tried
jointly (j).

Where a number of persons were all separately engaged in fishing, and were
merely several poachers gathered in the same place at the same time, and there was
no evidence of a common object or intention, and the accused were tried together
for offences under Ss. 379 and 447 as having been committed' in the course of the
same transaction, held that the joint trial was not a mere irregularity, but an
illegality (k). A real thief cannot be charged with an offence under s. 215 (1).

Theft and receiving stolen property :~Can the receiver and the thief
be jointly tried? Now under the amended Code of Criminal Procedure of 1923,
s. 239 (f), ‘ persons accused of offences under Ss. 411 and 414, or either of
those sections in respect of stolen property the possession of which has been trans-
ferred by one offence ’ may be charged with and tried jointly. It does not logically
follow from this that a thief and a receiver can be jointly tried, but if the offences
were committed in the course of the same transaction, they may be tried jointly.

Where three persons were charged jointly under Ss. 378 and 411, and tried
together, the trial was held to be bad when it was found that the theft and the receipt
of stolen property did not form part of the same transaction and the conviction was
set aside even though the objection as to the illegality of the trial was not taken in
the lower Court (m).

Receiver and the thief cannot be jointly tried : — It was held in Bishnu Banwar s
case (n) that a thief and a receiver of stolen property cannot be jointly tried. This
case is no longer good law in view of the insertion of cl. (e) in s. 239, Cr. P. Code,
which has also modified the view taken in Ohi Bhusaris case (o) where it was held
that the joint trial of a thief with a receiver of stolen property was illegal unless the
offences were committed in the course of the same transaction. The Patna High
Court has held that it is not illegal to charge an accused person under Ss. 380 and
414 (p).

A joint trial of persons separately receiving property stolen at one and the same
theft is bad and this defect is an illegality and not a mere irregularity which can be
cured by s. 537, Criminal Procedure Code (q).

Where the accused was jointly tried and convicted under s. 411 along with
another person who was either the thief or who as first receiver having obtained
a certain amount of the booty subsequently handed over a portion of it, the Calcutta
High Court held that the joint- trial was bad (r).

Offences under Ss. 379 and 225, cannot be jointly tried (s).

Summary trial : — Where from the nature of the dispute and particularly
from the plea taken by the accused, it is obvious that the case involves a

(j) S. 289 (e) of the Amended Code of Criminal Procedure of 1923.

(k) Saminllu Saheb , (1920) 60 M. 735.

(l) Alu. (1911) 12 Cr. L. J. 72 : 9 I. C. 421 (Sind).

(m) Gurditta , (1904) 2 Cr. L. J. 30 (37).

(n) (1896) 1 C. W. N 33.

(o) (1918) 46 C. 741 : 29 C. L. J. 212 : 23 C. W. N. 463 : 20 Cr. L. J. 394 : 60
. C. 1002, following Bishnu Banwer, (1896) 1 C. W. N. 35.

(p) Damodar Ram, (1929) 11 P. L. T. 481.

(q) Jagannath, (1915) 16 Cr. L. J. 270 ; 28 1 C. 158.

(r) Ramratan Sukul t (1917) 21 C. W. N. 1111 : 19 Cr# L. J. 17 : *2 <T. C. 977.

(s) T iluhdhari Mahton and others , (llH>8) 13 C. W. N. 804*^ 9 Crt L. J. 147 : 1

THEFT

697

SEC. 379 ]

complicated question of title, the Court should not try the case summarily (t).

Restoration of stolen property Under s. 517 of the Criminal Procedure
Code, the Court after the conclusion of the trial can order restoration of the property
to any person claiming to be entitled to possession thereof, and under cl. (4) may
demand from such person that a bond with or without surities must be executed
to the satisfaction of the Court, engaging to restore such property to the Court if
the order made under s. 517 is modified or set aside on appeal (u). But when it is
proved that an innocent person has bought the stolen property from the thief without
knowing or having reason to believe that the property was stolen, the Court may,
on the application of such purchaser and on the restitution of the stolen property to
the person entitled to the possession thereof, order that out of such money a sum not
exceeding the price paid by such purchaser be delivered to him fv).

S. 519, Criminal Procedure Code, does not apply to currency notes (w).

Where the accused stole a pony and sold it to a third person, and was convicted
of the offence, but the Magistrate ordered under s. 545 that out of the imposed fine,
when recovered, Rs. 9-12 should be paid to the purchaser and then the pony should
be returned to the complainant, it was held that the order imposing a condition on
the return of the pony to the complainant and awarding a portion of the fine to the
purchaser was illegal (x).

Jurisdiction of Magistrate to review his order:— Where the Police
submitted final report in a case under Ss. 379 and 147 and the Magistrate thereupon
recorded the following order : “ Enter false, mistake of law ” and, thereafter upon
the petition of the complainant, he revived the case, the Patna High Court held that
he had no jursidiction to alter or review his first order (y).

Measure of punishment 2 — Sentence was enhanced in the case of a theft
from a railway train as this is an offence of a peculiarly heinous character, extremely
difficult to discover, and therefore profitable to those who are engaged in committing
such theft (z).

Every repetition of theft is a grave offence when it indicates a habit not cured
by previous light punishments (a)«

Separate sentences See notes under s. 71, supra.

Where the accused stole property at night belonging to two different persons
from the same room of a house, held that he could not be sentenced separately as
for two offences of theft (b). Where a person, who has stolen an animal, subse-
quently kills it for the purpose of eating it, he cannot be convicted under both
Ss. 379 and 429 (c).

‘intending to take dishonestly ’ Intention is the gist of the offence (d).

(t) Bhim Bhadur Sing , (1920) 1922 Weekly Notes Pat. Supot. 10 : 1 Pat.
L. T. 121 : 21 Cr. L. J. 874 : A. I. R. (1922) Pat. 265.

(u) S. 517 of the Code of Criminal Procedure.

(v) S. 519 ol the Code of Criminal Procedure.

(\v) Collector of Salem , (1873) M. H. C. R. 233, following Foster v. Green, 7 H.
and N. 881 ; Goodman v. Harvey , 4 Ad. and El. 870.

(x) Vishnu Vasudso Juvekao v. Ramling B hi h ling, (1901) 3 Bom. L. R. 449.

(y) Gajo Ghaudhury v. Debi Chaudhury, U923) 24 Cr. L. J. 481 : 72 I. C. 945 :
A. I. R. (1923) P. 532.

(z) Ananda Laxman Bataj i, (1912) 14 Bom. L. R. 504.

(a) Ram Nhanu, (1886) Rat. Unrep. Cr. C. 296.

(b) .Sheikh Mfyea, (1869) 11 W. R. (Cr.) 38; Krishna Sahaji , (1897) Rot. Unrep.
Cr C 927.

(c) Hussain Baksh Mian, (1924) 3*#: 804.

(d) Madaree Ckowkid'av, (1885) 8 W.,R. (Cr.) 2.

698

THE INDIAN PENAL CODE

[CHAP. XVlt

There must be a dishonest intention at the time of taking any moveable
property out of the possession of any person without his consent. The word
4 dishonestly * has been defined in s. 24, supra , as involving the 4 intention of
causing wrongful gain to one person, or wrongful loss to another \ The gist of
the offence of theft consists in the dishonest intention of the party taking the
property (e). To constitute theft, there must be an intention to take the thing
in question dishonestly, i.e., with intent to cause wrongful gain or wrongful loss (f).

A dishonest intent is a necessary ingredient in the offence of theft (g). The
illegal seizure and impounding of cattle effected with the malicious intent of sub-
jecting the owners to additional expense, inconvenience and annoyance, is not
theft within the meaning of the Code, and Glover, J., held: “To commit theft,
a man must take * dishonestly 1 as defined by s. 24 ” (h).

Taking need not be with the intention of retaining permanently :~

The English law of larceny requires intention to deprive permanently, but this
is not necessary under this section.

The Calcutta High Court in an early decision held that a person could not be
convicted of theft where there was no evidence that the prisonei intended to convert
it to his own use and make it permanently his own property (i). But this decision
is not good law as it follows the English law and not the definition of theft in the
Code. Under illustration (/), a temporary taking of property is taking dishonestly.
The Calcutta High Court by a Full Bench decision has held that it is not neces-
sary to constitute the offence of theft that there should be shown on the part of the
accused an intention 4 to gain the thing moved for the use of the gainer * but that it
is enough to show an intention to gain possession of it for a temporary purpose (j).

In order to constitute larceny there must be an intention to take entire dominion
over the property, i.e., the taker must intend to appropriate the property to his own
use, but there may be theft without an intention to deprive the owner of the
property permanently (k). The Bombay High Court has held that a charge of
theft will lie even when there is no intention to assume entire dominion over the
property taken, or to retain it permanently but there is dishonest intention (1).

A removal of property dishonestly, that is, with the intention of wrongfully
depriving the owner of the possession thereof to which he was legally entitled for
however short a period, is theft (m). To constitute the offence of theft, it is not
necessary to show that the wrongful loss was intended to be a permanent loss (n).

Where a tenant, believing that a legal distraint had been made by his landlord
of the crops of his holding which had been previously attached in execution of a
decree against him, cut and removed the crops, it was held that before an accused
can be made liable for the offence of theft, it must be found that he dishonestly
took some property out of the possession of another person, and the accused was
found not guilty of theft (o).

(e) Nobin Chandra Haider . (1806) 6 W. R. (Cr.). 79.

(f) Nabi Buksh, (1897) 25 C. 416.

(g) Pandita v. Rahimulla, (1900) 27 C. 501 : 4 C. W. N. 480, following Gangaram
Santram, 9 B. 249.

(h) Aradhun Mundal v. MyanKhan , (1875) 24 W. R (Cr.) 7,

(.) Adu Sheikh , (1885) 11 C. 635.

(j) Sri Charan Chungo, (1895) 22 C. 1017 (F. B ) at p. 1022, overruling Prasanna

Kumar Patra v. TJdoy Sant , (1895) 22 €. 669. 4

(k) Naushe AH Khan, (1911) 34 A. 89, following Dickinson , (1820) R. and R.

420.

(l) Nagappa,{\m)\nB.Ui. *

(m) Shoma Cheturj, (1897) Rat. Unrcp. Cr; C. 908.

(n) Tirwjcngada Chari, ( 1 881 ) 1 Weir* 407. »

(o) Ramiayal, (1915) 38 A. 40 : 13 Jk. £. J. 1058 : J8 Cr^JL. J. 812 : 31 I. C.
828 . * *

THEFT

699

SEC. 379 ]

Theft of crop — Actual possession : — Before convicting a man of theft
of crops of some land, it is necessary to find out who was in actual posession at that
date. Mere order for delivery of possession is not conclusive (p). It is sufficient
to constitute an offence under this section that the complainant sowed the crops,
and it is not of the least consequence that he had no title to the cultivation of : the
fields fq). Where an order under s. 145, Cr. P. Code, was made in favour of the
complainant, but as a matter of fact the crops had been sown by the accused, the
Allahabad High Court held that the crops being the property of the accused,
the cutting down of these crops would not constitute the offence of theft (r).

Where attachment of crops was irregular and the crops had not passed out of
the hands of the judgment-debtor with whose consent the accused removed crops,
held , accused were not guilty of theft fs).

Lord Hale observes : “ A delivers goods to B to keep for him and then
steals them with intent to charge B with the value of them. This would be felony
in A. So if A having delivered money to his servant to carry to some distant place,
disguises himself and robs the servant on the road, with intent to charge him, this
1 doubt not, would be robbery in A ” (s 1 )-

Where the charge against a person was theft which consisted in the removal
of a box belonging to himself from the possession of the station-master of the
railway administration and causing wrongful gain to himself in the form of com-
pensation for the loss of the box, held , the conviction for theft could not be sus-
tained for the reason that the accused removed the box with the implied consent o
the station-master when he paid for certain excess charged on him ; there was no
dishonest intention and the burden of proving intention was on the prosecution (t).

' Property attached by Receiver— Removal by person claiming title
to it : — Where property has been taken possession of by a Receiver in Insolvency
in the bona fide belief that if it is property belonging to the insolvent, any person
who takes such property from ihe possession of the Receiver is guilty of theft, even
though he may claim to be the owner thereof (u).

Berge~Vendor cancelling contract of Sale— Vendor going into
possession of berge on failure of payment of money Where the accused,
the owner of a berge, sold it to the complainant and received earnest money and
the accused called upon the compfeinant to pay the remainder of the purchase
money and threatened to put an end to the contract unless the money were paid to
her within a specified time ; on failure of payment the accused took the berge into
her possession for which she was charged under this section, held that she
could not be convicted as she had no dishonest intention in seizing possession
of the berge and the complainant should have been referred to the civil Court (v).

Theft of one’s own property A person can be convicted of stealing
his own property if he takes it dishonestly, vide ill. (j) and (k). They depend
upon the principje that although the goods belong to the accused, they were at
the time of taking in lawful possession of another.

Bona fide claims of right : — When property is taken in assertion of a bona
fide claim of right, the removal does not constitute theft, if the claim of right be
an honest one, though unfounded in law as also in fact (w). A conviction for

(p) Jurekota v. Appadu , (1915) 17 Cr. L. J. 81 : 32 I. C. 673 CWad.).

fq) Muhammad Ata t (1921) 19 A. L. J, 961 : 23 Cr. L. J. 402 ; 67 I. C. 498.

(rj Sarju, (1915) 17 Cr. L. J 75 : 32 I. C. 667

(s) Ram Sakai Singh , (1930) 32 Cr. L. J. 437.

(si) 1 Hale. 513.

(t) Abdul Karim, (191$) 14 A. L. J. 417 : 17 Cr. L. J. 468 : 36 I. C. 148.

(u) Kamala P0 t (1926) 48 A. 368 : 24 A. L. J. 364 : A. I. R. (1926) All. 382.

(v) . Sitabai Pursholtam , (1930 ) 32 Bom. L. R. 1140 : A. I. R. (1930) Bom. 488

(\v)’ Per Sir AshutoSh Mookerji, J* in Arfan Ali, (1916) 44 C. 66 : 20 C. W. J\\

1270 : 17 Cr. L. J. 466 : 36 I. C. 136, foRdWed in Ham am Singh, (1923) 5 L. 56,

see Ravishanker Jagjivan, (1925) 4&Bon*. L. R. 89.

700

THE INDIAN PENAL CODE [ CHAP. XVII

theft cannot be sustained if there is a bona fide assertion of a claim of right, but a
mere assertion of a claim does not oust the jurisdiction of the criminal Court;
whether the claim is honest must be decided by the Court from all the circumstances
of the case, and as has been said, it should not convict unless it is in a position
to say that the claim is a mere pretence (x).

Upon a trial for larceny the question whether the goods were taken animojuranii
is a question of fact for the Jury and there being no finding by the Jury that the
prisoner had acted animofurandi , it was held that the conviction was bad (y).

“ If the property was in the possession of the prosecutor in such a way that
he had a right to hold it against the prisoner, i.c., the prisoner could not get it
without the consent of the prosecutor then it would be theft, if the prisoner dis-
honestly possessed himself of it with the intention of appropriating it’* (z).

Where the accused were acting under a claim of right, it was held that how-
ever ill-founded that claim may be, the accused could not be convicted of theft by
asserting it (a), but where in asserting the right to some property which a person
believes to be good, he docs something which he knows he has no right to do, e.g, 9
by taking the law in his own hands and removing such property from the possession
of his opponent who claims the property himself, he may be held guilty of theft fb).

Where the defence was unable to establish that they acted in good faith, it
was held that the conviction under this section was correct (b l ). An accused cannot
escape the penalty of the crime by the mere pretence of a bona fide claim which
has clearly no foundation (c). Following this decision the Calcutta High Court
held that the accused who asserts a claim would not be convicted of theft, unless
the Court is in a position to say that the claim is a mere pretence (d). No con-
viction can be had for theft unless there is a finding that the accused had an inten-
tion to take the property dishonestly out of a person’s possession — more so, when
the accused set up a bona fide claim of right (e). The Patna High Court has held
that a clear question of bona fides having been raised in the case, the case was
outside the cognizance of the criminal Court. Prima facie the auction-purchaser
is entitled to obtain possession of all the lands comprised within the writ of the
Court, and every attempt should be made by a criminal Court to maintain the
auction-purchaser in possession of the property unless a clear right to possession
of the property is established by any other person (f).

(x) N as sib Chaudhury v. Nannoo Chaudhury, , (1871) 15 W. R. (Cr.) 47 ; Run no
Singh v. Kali Churan Misser , (1871) 16 \V R. /Cr.) 18; Harish Chundcr Das v.
Balai Adhikary, (1871) 16 W. R. (Cr.) 75 ; Re Madhu Hari, (1887) 15 C. 390 n ; Panditu
v. Rahimullah, (1900) 27 C. 501 : 4 C W. N. 480 ; Bitdh Singh , (1879) 2 A. 101 ;
Sabal Singh , (1902) 4 Bom. L. R. 936, all these cases .followed in Arfan Ali , 11916)
44 C. 66; 20 C. W. N. 1270 (1273); Srinivashalu v. Gov in da, (1922) 44 M. L. J.

(y) Faranborough, (1895) 2 Q. B 484.

(z) Per Scotland, C. J., in Reg, v. Ammoyee , 4th Mad. Ses. 1862.

,'a) Bhicajee, (1862) Rat. Unrep. Cr. C. 22; Khetra Nalh Dutt v. Indy a Julia,
(1871) 16 W. R. (Cr.) 68 (78) ; Algara Swami , (1904) 28 M 304 ; Han Bhuimali,
(1905) D C. W. N. 974 ; Sahib Das, (1913) P. L. R. No 335 of 1913 ; Arfan Ali, (1916)
44 C. 06 : 20 C. W. N. 1270. '

(b) Rangeswamy, (1927) 6 R. 51.

(bl) Jagat Charan Roy , (1899) 4 C. YV. i\. 190,

(c) Hari Bhuimali, (1905) 9 C. W. N. 974; Imam,* 38 I. C. 818.

(d) Dhirtndra Mohan Gosam , (1909) 14 C. W. N. 408 : 5 I. C. 794; Harmdui

v. Ramjan, (1913) 41 C. 433; Arfan AH (1918) 44 C. 66; Ismail (1926) 27 P. L R.
635: A. 1. R. (1926) Lah. G83 (I); Ravtshanker Jagfivfui Savaiial firishnalal,
(1925) 28 Bom. L. R. 89. %

(<?) Ramlal Singh v. Hancharan Ahir, (1908) 11 C. L. jTklO.

(0 Skint Bahadur Singh, 1 Pat. L. T. 421 : 1922 Patna Supplement (C. W. N.)
10 : 21 Cr. L. J # . 374 : 56 I. C 854 : A. I. Pat. 265.

SEC. 379 ]

THEFT

701

Where A went into possession of the disputed land in 1906 and B the com-
plainant obtained a decree for possession against A and obtained actual possession
of the land in 191 7 and before the execution of the decree, A grew paddy but reaped
it after the execution of the decree, the Calcutta High Court held that A having been
a trespasser on the land at the time the paddy was grown, when the paddy was cut,
A had no right to remove it and there was no bona fide dispute (g). There is no
theft by removal if it is in a bona fide assertion of a claim of right (h). The Rangoon
High Court has held that unless the Magistrate was satisfied that the petitioners
acted dishonestly, he could not convict them of theft and his remark that perhaps
petitioners thought that they had a claim of right to the paddy showed that he was
not satisfied that they were dishonest (i).

If the accused honestly sets up a title to the property in himself, he cannot
be convicted of theft. Where a claim of title is honestly made, and is not merely
colourable, even though it may be unfounded, a criminal Court’s jurisdiction
is ousted (j). Whenever there is an assertion of a claim of right, it is the duty
of the Court to enquire into the question whether that claim is a bona fide claim
or is a mere pretence. If when that claim is actually put forward the Court
fails to decide the question whether the claim is a bona fide claim or a mere
pretence, the conviction cannot be sustained (k). Where the complainant and
the accused had fields adjoining each other and the accused removed certain crops
from the complainant’s field under the bona fide bf lief that the crops had been
sown by him and belonged to him and therefore he was entitled to them, the
Patna High Court held that the accused was not guilty of theft in removing the
crops, although the demarcation line had been given against the accused (1), but
the Courts will not conclude in favour of the bona fide assertion of a right when the
accused knew that he had no possession of the property and gathered the produce
grown by the complainant (m).

If there is a taking under a colour of right, or in other words, under a bona fide
claim of right, the taking cannot be dishonest or felonious ; that is to say, it is not
theft. It is immaterial whether the claim is good or bad. It may be material in
considering as a question of fact whether the claim was a bona fide claim, to consider
whether or not there was any right atall ( n ). The Calcutta High Court has held
that a conviction for theft could not be had against a judgment-debtor who, under
a mistake as to his right, had cut and removed paddy bona fide from a land which
had been delivered to the complainant in execution of a decree in title-suit (o).
Certain trees, the property of the Zaminder of the village in which they were situated,
were blown down bodily by a, dust-storm and thereupon some of the tenants of the
village removed and appropriated the trees. The tenants were charged with theft
and the tenants pleaded but were unable to substantiate the plea that they had a
customary right to trees thus uprooted by the storm. The Allahabad High Court
held that as there was no finding that the accused was acting bona fide , their act

(g) Abinash Chanira Sarkar, (1918) 23 C. W. N. 385: 28 C. L/ J. 120.

(h) Lanhanaw, (1016) 10 Bur. L. T. 160 : 24 U B. R. (1916) 124 : 18 Cr. L. j.
355: 38 I. C. 730, following Ay fan AH, (1916) 44 C. 66.

(i) SifPein, (1923) 2 Bur. L. J. 160 : A. I. R. (1924) Rang. 72.

(j) Sadasiv Singh, (1917) 1 Pat. L. W. 155: (1018) Pat. Supp. C. \V. N. 47:
18 Cr. L. J. 507 : 39 I. C. 475 : A. I. R. (1918) Pat. 47.

(k) Ayodya Nath Party , 21 Cr. L. J. 208 (P) : 54 I C. 902.

(l) Bodh Kissen Godta, (1923) 4 P. L. T. 608 ; 24 Cr. L. J. 454 : 72 1. C 614
A I. R. (1924) P. 125.

(m) In te . ^ V ay alappr a Ktlappan Nair t (1915) 16 Cr. L. J. 458 : 29 f. C. 90 (Mad ‘.

(n) Srinivasulu v. Govinda Goundan, (1922) 44 M. L. J. 138 : (1923) M. W. N.
182 : 17 L. W. 104 : 32 M. L. J. 153 : 24 Cr. L. J. 254 : 71 I. C. 798.

(o) Vdai Narain Gain v. Bamanath Midda, (1917) 40 I. C. 732 : 18 Cr. L. J.
732 (Cal.).

702

THE INDIAN PENAL CODE

[CHAP. XVII

amounted to the offence of theft (p). The Allahabad High Court has held that
ordinarily it is not a sufficient defence to a charge of theft for the accused merely to
assert that he thought that he was acting within the legal right but if the Court is
satisfied of the bona fides of the accused and that he acted wthout dishonesty, he
should not be convicted (q). Where a tenant was ejected from his holding under
the Agra Tenancy Act and formal possession was delivered to the Zemindar but
the Zemindar having failed to tender the price of the standing crops, the tenant
cut and removed them, the Allahabad High Court held that the tenant was not
guilty of theft (r).

Mistaken view of law No theft : — It is not theft if a person, acting under
a mistaken notion of law, and believing that certain property is his, and that he
has the right to take the same, until payment of the balance of some money due to
him from the vendor, removes such property from the possession of the vendor (s).

Removal of property to compel the owner to pay that which he is
legally bound to pay is not theft : — It is essential for theft as defined in s. 378
of the Penal Code, that property should be removed with the intention to take it
dishonestly, in other words, there must be an intent to cause wrongful gain to one
person or wrongful loss to another person and the forcible removal of property with
the intention of compelling the owner to make a payment which he is legally
bound to make does not amount to theft, inasmuch as there is no dishonest in-
tention (t). Where an electric kettle was given to a repairer for repairs, and he
did not complete the work within the stipulated period, or even within a reasonable
time thereafter, and the owner forcibly removed the article from the repairer's
shop without payment of the sum demanded by the latter for work already done by
him, held the owner was not guilty of theft (u).

According to a Full Bench decision of the Calcutta High Court it would be
theft if a creditor takes any moveable property of his debtor from the debtor’s
possession (v).

Distinction between English law and Indian law on this point " The

question how far ignorance or mistake as to a particular matter of fact connected
with a crime is important or net depends upon the definition of thet crime. For in-
stance, the definition of theft includes as its mental element an intention to deprive the
owner of his property permanently , fraudulentiy and without claim of right . Hence
it is not theft to take the property of another under a real belief that it belongs to
the taker ” (w). But under the Indian Penal Code , moving a property out of the
possession of the owner is required . It is not necessary to deprive the owner of the
property permanently. See ill. ( b ) to s. 378 and the following cases (x).

Sir Edward Hyde East in his Pleas of the Crown (Vol. II, p. 659) says : “ In
any case, if there by any fair pretence to property or right in the prisoner, or if it be

(P) Dunya pit, (1919) 42 A. 53 : 17 A. L. J. 974 : 20 Cr. L. J. 710 : 52 I. C. 790.

t<{) Bhagwat Sarun Mufti, (1910) 14 A. L. J. 399: 17 Cr. L. J 295: 351, C.
167/

(r) Jodha Singh, (1912) 11 A. L. J. 270 : 13 Cr. L. J. 298: 14 I. C. 762.

($) Hamid Ali Bepari , (1925) 52 C. 1015 : 27 Cr. L. J. 80 : A. I. R. (1926) Cal.

149.

(t) DaulatSkaw # (1921) 2 Pat. L. T. 583 : 22 Cr. L. J. 673 : 63 I. Q 089, following
Matubher Sheikh, 14 C. W. N. 936 : 11 Cr, L. J . 444 : 7 I. C. 257.

(u) E, J. Juddah , (1925) 53 C. 174-29 C.W.N. 101 1-20 Cr. L.J. 1805-A.I.R.

(1926) Cal. 464 following Jager , (1883) 6 A. 139 and distinguishing Gangaram
Santaram , (1884) 9 A. 135. «

(v) Srichurn Chungu, (J 895) 22 C. 1017 (1022) F. B. and Aghak Muhammad
Yusuf, (1898) 18 A. 88, followed in Ganapat Krishnaji, (1930) 32 Bom. L. R. 351,
and Mata Prosad v.Johhu , (1927) 102 I. C. 339 : A. I. R. (1927) AU>470>-

(w) Stephen's General View of Criminal Law, p. 73.

(x) Nagappa , (1890) 15 B. 344; Srichurn Chungu, (1896) 22 C. 101*7 (F. B.)
p. 1021 ; Naushe Ali Khan, (1911) 34 A. 89; Vallabhram Ganapatram, (1925) 27 Bom,
U R. 1391 (1401) : A. I. R (1926) Bom. 122,

THEFT

703

SEC. 379 ]

brought into doubt at all, tbe-Court will direct an acquittal ; for it is not fit that such
disputes should be settled in a manner to bring men's lives into jeopardy " (y).

Under the Indian Penal Code , intention must be 4 dishonest ’ but under the Eng-
lish law % taking must be 'fraudulent* and 'without claim of right.' The words
4 without claim of right * do not occur in the definition of theft but the same principle
of English law has been recognized and applied in a long line of cases in Indian
Courts and this is because the section says 4 intention of taking dishonestly.' These
cases have been noted under the heading bona fide claims of right.*

Servant’s liability when theft committed under orders of his master
or employee : — A servant should not be held guilty of the offence of theft when
what he did was at his master's bidding unless it was shown that he participated in
his master's knowledge of the dishonest nature of the acts (z). A person plucking
eight jack fruits in obedience to the orders of his employee from the trees standing
on a plot, the right to share in the proceeds of which, is desired to be asserted through
the agent, is not guilty of theft, as no criminal dishonesty is proved (a). In order
to convict a servant of theft under this section for having cut away some bamboos
at the order of his master, it must be clearly shown that he (the servant) knew of the
dishonest intention of the master (b). Where a crop was dishonestly cut out and
removed by the order of the accused (master), he himself being present, the accused
is guilty of an offence under this section (c).

Servant taking away master s goods in lieu of wages : — When a servant whose
wages for several months were due from the complainant took away his master's
goods and refused to give them back until his wages had been paid is technically
guilty of theft (d).

* any moveable property 9 ‘ Moveable property * is defined in s. 22 as
including “ corporeal property of every description except land, and things attached
to the earth, or permanently fastened to the earth."

# Under the old common law of England in order that a thing might be the
subject of larceny it had to fulfil three conditions : (1) it had to be the subject of
property, (2) it had to be moveable personal property and (3) it had to have some
appreciable value of its own. These conditions were supposed to exclude several
classes of things from the possibility of being stolen, but neither the classes of things
nor the ground on which they wer8 incapable of being stolen were at all definitely
settled. Three classes of things were in one way or another decided to be incapable
of being stolen — namely, things growing out of the earth, deeds and certain animals.
Animals were regarded as not being, in the proper sense of the word ‘ property * (e).
In England previously there could be no larceny of title-deeds relating to land which
were regarded as a part of it and even the box which contained them could not be the
subject of the theft (0. but with the passing of statute 24 and 25 Viet., c., 96, s. 26
the rule now applies to mere choses in action , e.g. t bonds, bills.

Where poachers of whom the prisoner was one, wrongfully killed a number
of rabbits upon land belonging to the Crown and had no intention to abandon

(y) East P. C., Vol. II, p. 059 ; I Hale P. C., pp. 506, 509 ; Hawkins P. C., Vol.
1, Cli. 19, s. 12; see also R . v. Hall , 3 C. and P. 409; R. v. Wade , 11 Cox. 54 ;
R. v. Jennet, (1804) 7 L. J. M. C. 79 ; R. v. Leppard , (1864) 4 F. and F. 51.

( 2 ) Hari Bhuimali , (1905) 9 C. W. N. 974.

(a) Imam , (1916) 18 Cr. L. J. 286 : 38 I. C. 318 (Cal.).

(b) Radha Madhab Paikra, <1910) 15 C. W. N 415 : 12 Cr. L. J. 7 : 9 I. C. 40,
following Hari Bhuimati , (1905) 9 C. W. N. 974.

(c) Bhawani JSahu v, Premmashi Christian , (1917) 19 Cr. L. J. 116 (P.) : 43
1. C. 404.

p (d) BirhamdeoRii, (1925) 7 P. L. R. 272 : 26 Cr. L. J. 1559; A. I. R. (1920)

(d) Stephen's General View of Criminal Law, p. 146.

(f) 1 Hale, 510.

704

THE INDIAN PENAL CODE [CHAP. XVII

the wrongful possession of the rabbits which they Ind acquired by taking them
but placed them in a ditch as a place of deposit, and about three hours afterwards
the prisoner began to remove the rabbits, it was held that the taking of rabbits
and the removal was one continuous act and that the removal was not larceny (g).
As in England, a human body whether living or dead, cannot be the subject of
theft (h).

From the word * moves * which follows in s. 378 and which is an essential
ingredient of the offence, it logically follows that this offence must be confined to
‘ moveable property.’ In this respect the Indian law is the same as the English law.

It is expressly stated by Explanations I and 2 of s. 378 that things attached to
the land may become moveable property by severance from the earth and a moving
effected by the severance may of itself be theft.

The Penal Code does not agree with the English law of larceny that the thing
stolen must have some appreciable value of itself. As the framers of the Code
observe: “ It may possibly be remarked that we have not like Mr. Livingstone,
made it a part of theft, that the property should be of some assignable value " (i)*

Earth: — Earth, that is, soil, and all the component parts of the soil, inclusive
of stones and minerals when severed from the earth, are moveable property cap-
able of being the subject of theft. Whoever, therefore, severs such earth from the
earth with the dishonest intention specified in s 378 can be said to commit theft (j).
The Madras High Court by a Full Bench decision has held that earth might be the
subject of theft and the same reasoning applies a fortiori to stones that are quarried
from the earth and that any part of the earth when severed from the earth is moveable
property (k). Where the charge is for theft of clods of earth worth 6 pies from a
public channel bed, dishonest intention cannot be inferred, and the accused was
acquitted (1).

Salt Where the Government by placing guards round a swamp had taken
possession of the salt, it was held that the taking against the will of the Government
and with the intention of obtaining an unlawful gain of 1 salt ’ which had been
spontaneously produced on the swamp was theft (m). Dishonest removal of salt
naturally formed in a creek which was under the supervision of an officer belonging
to the Custom Department constitutes theft, the salt having been legally appropriated
by such officer (n).

Water : — Water in rivers, channels, etc., can be the subject of property of the
Government and thus the subject of theft. If the intention of the accused was to
let the water run to waste, the case would be different. But when the accused caused
the water to move under the influence of gravity to his own land or irrigation
purposes, the Madras High Court held that he would be guilty of theft as illustration
( b ) to s. 378 shows that theft may be completed without the property ever being in
the possession of the thief (o). Where the accused cut the embankment of a pyne
or water channel and drew water to their own lands and were convicted under

(g) Lewis lownly , (1870) L. R. I. C. C. R. 31 5.

(h) Ramadhin, (1902) 25 A. 129.

(i) Note N.

(j) Shivaram, (1891) 15 B. 702 (701) where JKotayya, (1887) 10 M. 225 was
dissented from.

(k) Sttri V enhatappayya Sastn V Module Vevkanna, (1994) 27 M. 531 (F, B.)
overruling Kotay ya, (1887) 10 M. 225.

(l) Public Prosecutor v. Imanda Ramaswami, (1917) Iff Cr. L. J. 632 : 38 I. C.

1000 (Mad.). *

f m> Tamvna Ghantayi (1881) 4 M. 228.

(ii) Mansany Bhava S,wg. (1873) 10 B. H. C. R. (C« . C.) 74.

(o) Chockalingam Pillai , (1912) M. W. N. 110 : 13 I. C. 8 Ip, followed in Mahadeo
Prasad, (1923) 45 A. 680 : 21 A. L. J. 654 ; 24 Cr. L. J. 9 r : 75 I. C. 159: A. I. R,
(1924) All. 131.

THEFT

705

SEC. 379 ]

S«. 379 and 430, the Calcutta High Court held that the running water could not
be reduced into possession as to be the subject of theft, but the conviction of the
under s. 430 was maintained, although Woodroffe, J., was doubtful whether
this was a matter for determination of criminal Court (p).

gout , — A boat may be the subject of theft (q). So also a house-boat has
been held to be moveable property and as such subject of theft (r).

Gat t— It has been held that Gas (s) and Electricity may be the subject of
theft.

s — Theft cannot be committed in India of property in the possession
of no body (Illustration (g), s. 378], It cannot be committed in respect of wild
animals (t).

A bull dedicated to an idol and allowed to roam at large is not /era ftesfia and
therefore res nullius (u). A bull dedicated and set at large at the Sradh of a Hindu
is not moveable property within the meaning of Ss. 378 and 403 (v).

If pigeons are so far tame that they come home every night to roost in wooden
hung on outside of the house of their owner, and a party came in the
night and stole them out of these boxes, this is larceny (w).

A person removing cattle from a pound where they are secured without pay-
ing the legitimate fee, has undoubtedly the dishonest intention of saying himself
the fee, and it makes no difference whether the man who so removed is the owner
himself (x), or a stranger (y).

Fish : — Inability to prove a prescriptive right to fish within certain limits
free from payment of rent is quite distinct from the want of right of any kind to
fish therein, rendering a person so fishing liable to be brought up for theft of fish
taken by him (z). The taking of fish in a portion of a navigable river oyer which
a right of julktir exists in another person does not fall within s. 378 inasmuch
as the fish in such a river cannot be said to be in the possession of the proprietor
of the julkttr right (a). The Bombay High Court upheld the conviction where the
fish were taken from an enclosed tank belonging to the municipality (b). Where
the fish were not reared and preserved and the tank was not enclosed on all sides,
but was dependent on the overflow of a neighbouring channel and the fishes had
been taken at the time when the floods were high and the tank was connected with
the streams, it was held that the fishes were faere naturae and the conviction could
not be upheld (c). Fish, confined in ponds, and caught by bailing out the water
from the ponds can form the subject of theft (d).

The Madras High Court has held that although the capture of a fish in an
ordinary irrigation tank will not of itself amount to theft, yet it the water was so low

(p) Sheikh Arif, (1908) 35 C. 437.

(q) Meher Dowala, (1871) 16 W. R. (Cr.) 63.

(r) Nowtara Singh, (1904) 10 Bur. L. R. 356. ,

is) R. v. White, Dears 903.

(t) Shichle, (1868) L.R.L.C.C.R. 168.

(u) Nalla, (1887) 11 M. 145.

(v) Romtsh Chandra Sanyal v. Him Mondal, (1890) 17 C. 852.

(w) George Brooks, (1892) 4 C. and P. 131.

(x) In re, Veerasami Najker, A. I. R. (1931) Mad. 18.

(yj In re. Pacha S^hib, 1 Weir, 716.

(a) Khetter Nath v. Indro Jalia, (1871) 16 W. R. (Cr.) 78.

(a) Hari Moioch v. Dinnonath. (1873) 19 W. R. (Cr.) 47 ; Bhusan, (1873) 20
W. R. 16; Charu Nayaib, 2 C. 354; Bhagiram V. A bar, (1888) 16 C. 388.

(b) Sheikh Adam, (1886) 10 B. 193.

(c) i/tayaram v. Nichala, (1888) 16 C. 402, followed in Changlal Hatapatro v.
Basarmal, (1911) 5 S. L. R. 122 : 13 Cr. L. J.22.

(d) Nokote Behara, (1827) 61 M. 888.

51

706

THE INDIAN PENAL CODE

[CHAP. XVII

that the fish could not escape* the offence may be committed (e). Where the sluice
of a private enclosed tank remains closed* and the fish in it cannot escape* such
fish are in the possession of the owner and are liable to become the subject of
theft. The test is “ Could the fish escape ” (f). It has been held however that
catching fish in a poromboke tank in the assertion of a bona fide right does not
amount to theft (g).

Occupancy tenant in Bihar and Orissa and especially in flooded area of Cham-
paran District commits no offence in seizing fishes from trespasser collecting same
on land (h).

Trees:— Where trees are reserved for the landlord under a kphuliyat, the
tenant is guilty of theft if he cuts away the trees notwithstanding a provision in
the kabuliyat for compensation for wrongful cutting of trees fi).

Theft is committed only if the trees were cut with the intention of being re-
moved from the possession of the owner. It is not theft but mischief where the
trees were cut merely to annoy the complainant (j). Removal of trees by a tenant
when in his actual possession does not amount to theft, even if his landlord is
jointly interested in it (k).

Owner cannot accuse of theft person removing tiees from tenant’s possession (1).

9 out of the possession of any person 9 ’ The property which is alleged

to be stolen must have been in the possession of some one at the time of the theft.

The English law of larceny requires the taking a thing out of the possession
of the owner whereas the Indian Penal Code requires moving out of the ‘ possession
of any person.’ So while under the English law, the taking must be from the owner,
the offence here is complete if it is taken out of the ‘ possession of any person.'

Now * possession ’ has not been defined in the Code. S. 27 deals with
property in the possession of a person’s wife, clerk or servant, evidently illustrating
the principle that property remains with the owner though it is temporarily or for
the time being in the possession of some one from whom he can demand it at any
time he likes.

‘ Possession ’ has been used in its ordinary sense as the Authors of the Code
observe: “We believe it to be impossible' to mark with precision by any words*
the circumstances which constitute possession. It is easy to put cases about which
no doubt whatever exists, and about which the language of the lawyers and of the
multitude would be the same. It will hardly be doubted* for example, that a gentle-
man’s watch lying on the table in his room is in his possession, though it is not
in his hand, and though he may know whether it is on his writing table or on his
dressing table. As little will it be doubted that a watch which a gentleman lost a

(e) Subbian Servai, (191 1J 36 M. 472 : 1 1 M. L. T. 23 : (1912/ M. W. N. 42 : 22
M. L. J.184: 13 Cr. L. J. 38 : 13 I. C. 278.

(f) Manchu Paidngadu v. Kaddin Seth Tammayya, (1914) M. VV. N. 168: 15
Cr. L. J. 77 :^22 I. C. 429, followed in Nohole Behara, (1927) 61 M. 333: (1927)
M. W. N. 788: 53 M. L. J. 759.

(g/ Vaithi Matharam v. Varayavaswamt Iyer, (1924) 22 L. W. 673: A. I. R.
(1926) Mad. 210 : (Single Judge).

(h) Henry Hill and Co. v. Sheoraj Rai, 8 P. L. T. 56: A I. R. (1922) Pat. 9
and Arth Rantra , 3 P. 549 : A, I. R. (1924) Pat. 564, followed in Ramji Rai t A. 1. R.
(1930) Pat 508.

ii) Abdul Alt Faktr v. Netali Fakir , (1911/ 27 C. L # . J. 228 : 19 Cr. L. I. 334 :
44 I. C. 350.

(j) In re.Kuttiah Odayoth Vectil Kumar Nambiah, (1915) Ifi Cr. L.J. 644 (Mad.) :
29 1 C 672

(k) Thoppulan v. Sankavanaravan Iyer , (1914) M. W. N. 483: 15 Cr. L. J.

440 : 24 1. C. 176. A-

(l) Nataraja Mudaliar, A. I. R. (1931) Mad. 24|. ;

SEC. 379 ]

THEFT

707

year ago on a journey, and which he has never heard of since is not in his possession.
It will not be doubted that when a person gives a dinner, his silver forks, while in
the hands of his guests, are still in his possession ; and it will be as little doubted
that his silver forks are not in his possession when he has deposited them with a
pawnbroker as a pledge. But between these extreme cases lie many cases in which
it is difficult to pronounce, with confidence, either that property is or that it is not
in a person's possession " (m).

M eaning of possession : — It is sufficient in a case of theft of crops to consti-
tute an offence under this section that the complainant sowed the crops and it is
immaterial that he had no title to cultivate the fields (n).

A person who diverts more water by lowering a sluice in a Government Channel
without the permission of the officers of Government is guilty of theft of water
because water is in the possession of the Government which has taken elaborate
steps and employed a large establishment to control the use of water in rivers and
channels. A mere intention to take is sufficient and no actual taking is neces-
sary (o).

In order to constitute * larceny ' there must be an intention to take entire
dominion over the property, t.e., the taker must intend to appropriate the property
to his own use, but under the Indian Penal Code the question is whether the
accused took property dishonestly and it has been held that theft may be committed
even where there is no intention to deprive the owner permanently (p).

Taking from joint possession -Theft of joint property of a family may
be committed by one of the family though a coparcener and converts such posses-
sion with separate possession (q). A conversion of joint possession of property
into exclusive possession constitutes the offence of theft and not of criminal mis-
appropriation (r).

Removal of trees by a tenant when in his actual possession does not amount
to theft, even if his landlord is jointly interested in it (s). The Allahabad High
Court has held that the landlord could not be convicted of theft where the land-
lord in his defence stated that he had removed the crops which he had jointly
cultivated with a non-occupancy tenant as he must be deemed to have been in
possession of the property (t). Until the delivery by the tenant to the landlord,
the latter’s share of the crop was with the tenant and although the landlord may
have put a seal on the heaps of grain stored by the tenant the removal by the
tenant of the heaps of grain in his possession does not amount to theft (u). Where
a landlord was charged with theft for having cut and carried away some paddy
in his tenant's possession valued at Rs. 88 and the Magistrate tried the accused
summarily because the value of the tenant's share was less than Rs. 50, it was held
that the Magistrate had no jurisdiction to try summarily (v).

(m) Note N

(n) Muhammad Ata, (1921; 19 A. L. J. 961 : 23 Cr. L. J. 402 : 67 I. C. 498.

(o) Chohalingam Pillai, "11 M. L. T. 162: (1912) M. W. N. 119. 13 Cr. L. J.
131; 13 I. C. *19.

(p) Naushc All Khan, (1911) 34 A. 89 (90), following Prosonna Kumar Pat to
v. Udoy Sant, (1896) 22 C. 669.

(q) Ponurangam, (1887) 10 M. 186 Contra. See Phut Singh, (1912) 10 A. L. J.

627.

(r) (1880) 1 Weir 40^

(sj Thoupalin v. Sankaranerayana Aiver, (1914) M. W. N. 176: 15 Cr. L. J.
440: 24 I. C. 176. ,

(t) Phul Singh , (1912) 10 A. L. J. 527 : 14 Cr. L. J. 3 : 18 I. C. 146.

(u) In re. Annamali Odayar , (1914) M. W. N. 186: 1 L. YV. 178: 15 Cr. L. J.
186 : 22 l. C. 762, following Subardhi Rantho v. Balarama PudJi , 26 M. 481.

(v) Haboo v. Karimdfyi 10}6) 1 Pat. I-. J. 230 : 20 C. W. N. 1212 : 17 Cr. L. J.
473 : 36 I. C. 163,

708

THE INDIAN PENAL CODE

[CHAP. XVII

Temporary retention quite sufficient : — The English law requires an
intention to appropriate the chattel and exercise an active dominion over it (w),
whereas under the Indian Penal Code, if the prosecution establishes that the
accused intended to take dishonestly any moveable property without the consent
of the person in whose possession it was, and moved the same the offence will be
complete, however temporary may have been the proposed retention (x). When
the owner is kept out (of possession of a moveable property) with the object of de-
priving him of the benefits arising from the possession even temporarily that case
would be covered by s. 378. In a case where the owner is kept out of possession
temporarily not with any such intention but only with the object of causing him
trouble and with the ultimate intention of restoring the thing to him without any
recompense, the accused cannot be convicted of theft (y).

1 without that person's consent* Another essential ingredient of the
offence of theft is that the intention to take dishonestly any moveable property
out of the possession of any person must be ' without that person's consent Now,
consent is not a consent if it is given by a person under fear of injury or under a
misconception of fact and a consent given by a person under twelve years of age
or by a person who from unsoundness of mind or intoxication is unable to under-
stand the nature and consequences of the act is no consent (z).

Under this section the taking must be without consent of the person in possession
whereas under the English law the taking must be ' against the consent ' of the
owner and which is not only wrongful and fraudulent but * without any colour
of right. ’

When the consent of the person is obtained by fraud or false representations,
or in the other words, is given by a person under a misconception of fact, the
offence would be * cheating. * When the consent is given under a fear of injury
or threats, the offence would be * extortion * and when the consent is obtained
by violence or threats of violence, the offence is 1 robbery. *

Explanation 5 of 378 says that the consent given may be either express or
implied, and may be given either by the person in possession or by any person
having for that purpose authority either express or implied. For implied consent
as mentioned in explanation 5, see illustrations (m) and (n). But it would be theft
if the consent is given by a ‘person who has no authority from the person in posses-
sion, [vide illustration (o)].

In applying English cases , it would be well to remember that the English law of
larceny requires consent of the * owner 9 whereas the Indian law of * theft 9 requires
consent of the ‘ person in possession *

A sought the aid of B with the intention of committing a theft of the property
of B's master. ' B with the knowledge and consent of his master, and for the purpose
of procuring A s punishment carried out his object, it was held that the accused was
not guilty of theft as owing to the property having been removed with the know-
ledge of the otfner, the technical offence of theft had tiot been committed, but he
was guilty of abetment (a).

1 moves that property in order to such taking * Another essential
ingredient of the offence of theft is that the accused must actually move the
thing out of the possession of any person intending to take it dishonestly.

(w) Per Lord Campbell, C. J., in Trebtlock , (1858; 27 L. J. M. C. 103.

(x) Nagappa , (1890) 15 B. 344.

(y) Kabi Bahsh , (1897) 25 C. 410.

(xl S. 90, supra .

(a) Troylohha Nath Chaudhury , (1878) 4 C. 366, foU6wing Dolan , 6 Cox. 449 ,
Hancock , 14 Cox. 119,

SEC. 370 ]

THEFT

700

See Explanations 2, 3 and 4 and illustrations which explain what is meant by
* moving \ Under English law of larceny property must be taken, but under the
Code it must be * moved.* So in England, taking goods out of the chest and laying
it on the floor has been held sufficient (b).

Ex planation 1 : — " Where William Cherry was indicted for stealing a wrapper
and some pieces of linen cloth and it appeared that the linen was packed up on the
wrapper in the common form of a long square, which was laid lengthway in a
waggon ; that the prisoner set up the wrapper on one end in the waggon for the
greater convenience of taking the linen out, and cut the wrapper all the way down for
that purpose, but was apprehended before he had taken anything. All the Judges
agreed that this was no larceny ; although his intention to steal was manifest " (c).

The framers of the Code observed that the principle of English law that mere
severance of things attached to the earth for the purpose of stealing them does not
apply in India.

To move growing grass which effects its severance from the earth is theft (d).
Theft is committed only if the trees were cut with the intention of being removed
from the possession of the owner. It is not theft, but mischief where the trees
were cut merely to annoy the complainant (e).

Explanation 2 s— The Explanation shows that moving by the same act which
effects the severance may constitute a theft (f).

Explanation 3 Where the accused being in the employ of the Government
in the Post Office Department while assisting the sorting clerk in sorting letters
was observed to secrete two letters with the intention of giving them to the delivery
peon and to share with him the bearing postage, the Madras High Court held that
the accused was guilty of the offence of theft and of attempt to commit dishonest
misappropriation of property (g).

Explanation 4 : — This Explanation states how a person moves an animal.
Illustration ( b ) shows that a person can move an animal without touching it,
illustration (c) shows that a person can steal a treasure by moving a bullock carrying
the box containing the treasure.

English cases : — Where a post-man did not deliver a letter containing money,
it was held that he was guilty of stealing the letter (h). To remove a package from
the head to the tail of a waggon, with a felonious intent to take it away, is a suffi-
cient asportation to constitute larceny ; but merely to alter the position of a pack-
age on the spot where it lies is not (i). Where the servant of a tallow-chandler
removed fat belonging to his master from the room in which it was kept to a room
where his master was accustomed to buy fat from persons who had it to sell,
and placed it on a pair of scales there with intent to sell it to his master, and ap-
propriate the proceeds to his own use, it was held that the servant was guilty of
larceny (j).

Husband and wife t — Whether husband and wife can be convicted of
stealing from each other. Here the English law and the Indian law is not the same.

(b) Walsh, (1824) J Mood. C. C. 14.

(c) Cherrys case, 2 Ea3t P. C. 586.

fd) Samsuddin, (190Q; 2 Bom. L. R. 752.

(e) In re, Kuttiah Odayoth Vestil Kumar Samtiah, (1915) 1 6 Cr. L. J. 544 (Mad.)
29 I. C. 672.

(f) (1870) 5 M.H.C.R. (App) 36 ; Satnsuddiu , (1900) 2 Bom. L.R. 572.

(g) Venhatasami, (1890) 14 M. 229.

(h) *Paynton> (1862) 32 L. J. M. C. 29.

S CosM's case, (1771) 1 Leach. 271.

Hali> (1849) 3 Cox. 245,

710

THE INDIAN PENAL CODE

[CHAP. XVi!

English cases:— From the earliest times it has been held in England that a
female convert was not guilty of felony in stealing her husband's goods, the reason
being that husband and wife were considered but as one person in law (k). In
an earlier case it was held that the husband and wife are one person in law, and
the wife cannot steal her husband's goods, whether she has committed adultery
or not (I). If a person merely assist a married woman, who has not committed
or intended to commit adultery, in carrying away the goods of her husband without
the knowledge and consent of the latter, though with intent to deprive the latter
of his property, he cannot be convicted of stealing the goods (m). But with the
passing of Married Woman's Property Acts of 1 882 and 1884, either husband or
wife may commit larceny by stealing the separate property of the other when such
act is done either while leaving or deserting, or about to leave or desert, the
other (n) and the husband or wife may give evidence against each other (o), the
vagaries of the common law have been somewhat corrected.

The presumption of the old common law of England that there is legal identity
of husband and wife does not apply to the criminal law of India.

Hindu law : — There is no presumption of law that the wife and husband
constitute one person in India for the purposes of criminal law. Theft is an
offence against property, and where there is no community of property, each may
commit theft in regard to the property of the other (p). But a Hindu woman has
absolute right of disposal of her stridhan even without the consent of her husband,
and she cannot be charged for theft in respect of disposal of her stridhan
properties (q).

Mahomedan law : — A Mahomedan married woman may be convicted of theft,
or abetment of theft in respect of the property of her husband (s).

Meaning of * taking * The Allahabad High Court has held that under the
Indian law theft may be committed without an intention to deprive the owner of the
property permanently (s). The Madras High Court has held that * taking ’ means
'reducing to possession.' “The ‘taking' should be out of the possession
of the owner rather than reducing to the thief's own possession ’’ (t). The Punjab
High Court has held that the act of cutting the string of a hasita (neck ornament)
and forcing the ends apart constitute a sufficient moving of the hasua so as to bring
the act under t, 378 (u). Taking property of another and retaining it without any
intention of depriving the owner of the property is not theft. He may be pro-
ceeded against under s. 403 (v). It is submitted that the decision in Ruplal's case (v)
is not good law. The Calcutta High Court in Srichurn Changos case held :
“ Illustration (1) of the section clearly shews that taking a thing with the intention
of keeping it only for a time is taking within the meaning of this section ’’ (w).

(k) I Hale P. C., p. 514, followed in Lord Mayo* of London, (1886) 16 Q, B. D.

772 (775).

(l) Kenny, (1877) 2 Q. B. D. Ml (311).

(m) Avery, (1853) 28 L. J. M. C. 185.

(n) 45 and' 46 Viet. c. 75, Ss. 12, 16.

(o) 47 and 48 Viet. C. 14.

(p) BuLhi, (1893) 17 M. 401.

(q) Sat Martin, (1930) 53 A. 437.

(r) Khatabai . (1869) 6 Bom. H. C. R. (Cr. C.' 9.

(sy Nushe AH Khan , (1911) 34 A. 89 : 8 A. L. J, 1237 ; 12 Cr. L. J. 580 : 12

1. C. 844. #

(t) In re. Chockalingam Pillav, 11 M. L. T. 162 : (1912) M. W. N. 119 : 13 Cr. L. 1.
131 * 13 1 C 819

Vul’ Bi-hakhi, /19171 P. W. R. No. 37 of 1917 : P. R. No. 29 of 1017 : 18 Cr. L. J.
879 : 41 1. C. 987.

(v) Ruplal Sittgh v. Durga Prasad Dubey, (1917) I Pat. L. W. 416:. 39 T, C.

804

' (W) (1896) 22 C. 1017 (F. B.) at pp. 1023, 1024.

SEC. 380] THBET 711

*

It is immaterial whether the intention of the thief was or was not to derive a
profit from his crime (x). It has been pointed out in Srichurn Chango's case (w) :
“ ‘ Wrongful gain * according to the definition in s. 23 is constituted not only by
wrongful acquisition of profits (which is in accordance with the ordinary meaning of
the words) but also by wrongful retention of the same, even though such retention
do not result in any profit to the person retaining it ; so 1 wrongful loss * is consti-
tuted not only by wrongful deprivation of property, but also by being wrongfully
kept out of the same.”

Attachment of property without warranty-property removed by
owner : — Where a property is attached by an officer without a warrant for attach-
ment and the accused removed the property, the Allahabad High Court held that
there was no valid attachment and the accused could not therefore be convicted for
an offence under this section (y).

Where articles attached by the complainant in execution of a decree and left
in charge in possession of the complainant under a bond in form No. 15 of Appendix
E to Or. 41 , r. 3, C. P. C., who had obtained an assignment of the decree and executed
it under Or. 21, r. 43 (I), C. P. Code, and the accused put in a claim petition in
respect of the articles which was allowed but he did not however take delivery
through Court, broke open the locks of the shop in which they were kept and two
of the accused took forcible possession of them during the absence of the
complainant, the Madras High Court held that as the accused was only taking
his own property and did not intend to cause wrongful loss to the complainant or
wrongful gain to himself, there was no dishonesty and the accused could not be
convicted (z).

Where in execution of a decree the property of the judgment- debtor is attached
and kept in custody of a third person and upon his death the judgment-debtor
subsequently takes it himself and appiopriates it to his own use, he is guilty of theft
and not of criminal misappropriation in that he has dishonestly taken the property
out of the possession of the Court without the Court’s consent (a).

380. Whoever commits theft in any building, tent or vessel,
which building, tent or vessel is used as a
house, etc. " WL " g ^ human dwelling, or used for the custody of
property, shall be punished with imprison-
ment of either description for a term which may extend to seven
years, and shall also be liable to fine.

Theft — s. 378. Vessel — s. 48.

This section deals with an aggravated form of theft. It punishes theft in a
building, tent or vessel, which is used as a human dwelling.

Analogous law : — This section is almost identical with s. 60 of the Larceny
Act (24 and 25 Viet., c. 97).

Scope s — All that is necessary in order to constitute an offence of theft in a
building is that the property should be under the protection of the building, it is not
necessary to show unlawful entrance into the building (b).

(x) Lai Mahammed, (1931) 12 P. L. T. 556 : 32 Cr. L. 739.

(y) Mol it, (1920) 22 Or. L. J. 107 : 59 I. C. 411.

(z) Inte.Lakihminaravan CkeUiar.H92l) 42 M. L, J, 490: 16 L. W. 15' 24
Cr. L. J. 411 : 72 I. C. 526 : A. I. R. 1922 (Mad.) 405.

(a) - Chunnou, (1914 8 A. L. J. 656 : 12 Cr. L. J. 374 ; III. C. 142.

(b) Ishret Pwtmtd, (1875) 24 W. R. (Cr.) 49.

712 THE INDIAN PENAL CODE [CHAP. XVII

Procedure : —Cognizable— Warrant — Not bailable — Not compoundable —
Triable by any Magistrate — Triable summarily if the property to which offence
relates does not exceed R$. 50.

For a conviction under this section it is necessary to prove that the accused took
away the article from the possession of the complainant with the intention of
causing wrongful gain to himself or wrongful loss to the complainant (c).

Charge 1 (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of - , at .

committed theft of ( specify the property stolen) in a building (or tent or

vessel) used as a human dwelling (or for the custody of property), and thereby com-
mitted an offence punishable under s. 380 of the Indian Penal Code, and within
my cognizance.

And I hereby direct that you be tried on the said charge.

Joinder of charger—in respect of an accused person under Ss. 380 and 414
is not illegal (d).

Punishment : — Where the accused stole property at night belonging to two
different persons from the same room of house, it was held that he could not be
sentenced separately as for two offences of theft (e).

On a conviction under this section «*entence of fine cannot be substituted,
though it may be added (f).

Separate sentences t—See notes under s. 71, supra. Where the accused
after having stolen a bullock killed it and for this they w*rc separately sentenced on
the charge of theft, and mischief, it was held that the convictions and sentences were
not illegal as the theft preceded the mischief and the property was not transferred
by the theft (g).

House-breaking and theft ' The Calcutta High Court in a case where the
conviction was for house-breaking by night in order to commit theft as also theft
in a building, set aside the separate conviction and sentences (h), but in Kanchan
Mollas case (i) which is a decision after the amendment of s. 35, Cr. P. Code,
Newbould, J., held that separate sentences are legal and observed that the case-
law under the Code prior to the amendment of 1923 had been overruled. The
Patna High Court held in the case of Makru Dusadh (j) that separate sentences
under Ss. 380 and 457 are illegal, but the amendment of s. 35, Cr. P. Code, had not
been considered and old cases were followed. Similarly in a case under Ss. 143 and
380 it was held that separate sentences were illegal (k), but there also the amend-
ment of s. 35, Cr. P. Code, was not considered. Hence, the view in Afa^ru
Dusadh* s case (j) or Prayag Gopi*s case (k) cannot be accepted as correct.

Plea of guilty i — Where an accused person pleads guilty on a charge under
this section but the said plea is founded upon an erroneous conception of right
in the property, s. 412, Cr. P. Code, is inapplicable to the case (1).

(c) E. J. Judah , (1925) MB C. 175 ; 29 C. W. N. 1011 (1012).

(d) XX Damodar Ram Mahuti, (1929) 8 P. 781 distinguishing Waswmfi Dyal ,
(1904) 6 Bom. L.R. 725.

(e)

(0

Ul

K

(»)

Sheikh Moneeah, (1869) 11 W. R. Cr. 38.

Sheikh Dullo v. Zainah, (1871) 18 W. K. (C.r.) 17.
Krishna, (1889) Rut. Unrep. Cr. C. 430.

Sahrae, (1887) 8 W. R. (Cr.) 81.

41 C. L. J. 563.

(1828) 5 P.461: 96 I. C. 628.

Ptayaj Gapi, 3 P. 1018.

Satnarmn, (1930) 63 A. 437 ; (1930) A. L. J. 201.

o*.

SEC. 380 ]

THEFT

713

Theft— Lurking house trespass s— Where there wa» no direct evidence of
the accused breaking into the house or actually removing stolen goods, but four
days after the accused gave up the stolen goods, it was held that he was guilty of an
offence under s. 441 and not of offences under Ss. 457 and 380 (m).

Theft in dwelling house, etc. — In order to constitute an offence under this
section there must be dishonesty (n).

Building -Where the accused entered the dwelling house and in the
presence of the owner took away certain property in spite of his remonstrances, it
was held that this constitutes an offence under this section (o). The Madras High
Court held that theft from a verandah is a theft in a building punishable under this
section (p). The Punjab Chief Court has held that thett in such a case would be
theft in a building if the verandah forms part of a building which is itself used as a
human dwelling or for the custody of property (q).

Brake van Theft in a railway carriage is not theft in a building, tent or vessel
but the conviction was upheld as a conviction of simple theft (r).

Theft from a railway carriage is not a theft in a building (s).

Where on suspicion of theft of certain articles from running goods train, 4
coolies were arrested but there was not sufficient evidence of theft of 10 thans of
cloth or possession by them, it was held that they could not be convicted (t).

Compound : — The Bombay High Court has held : ** There is no principle or
authority for including compounds within the words * house * or ‘ building* " (u).
But a courtyard consisting of a walled enclosure with an outer gateway has been
held to be a building (v) : and a compound or a courtyard of a house surrounding a
building has been held not to be a building (w).

Building, tent or vessel must be used as a human dwelling A theft
from a verandah which is outside the house is not a theft in a building (x). Theft of
a cloth spread out to dry on the top of a house to which the prisoner got access by
scaling the wall is simple theft and not theft in a building or house-breaking (y).

In order to constitute an offence under this section the property should be
under the protection of the building (z).

So in England in a case where a man went to bed with a prostitute having
put his watch in his hat on a table and the woman stole the watch while the man
was asleep, it was held that the offence was that of stealing in the dwelling-house
and not of stealing from the person (a).

Where a lodger who invited a man to his room and then stole his goods to the
value of forty shillings, when not about his person is liable to be found guilty of
stealing in a dwelling house (b). In order to sustain a conviction under this section

(m) In re. Tunmalla Kuvmenna, 17 Cr. L. J. 179: 33 1. C. 319 (Mad.).

(n) Inre. Lahshmimravana Chethviar, (1921) 42 M. L. J. 490 : 16 L W 15*

W N Vi? (1012)' °* 520 : L R * ° 922) Madl 405 ; E ' J Judah ' < lw ' 6 )

(o) Kashinath Bhanshe, (1871) Rat. Unrep. Cr. C. 56. %

(jj) (1870) 1 Weir 435.

(<i) Ghulam Jelani t (1889) P. R. No. 16 of 1889.

(r) (1880) 1 Weir 436,

(s) Sheikh Saheb, (1886) Rat. Unrep. Cr. C, 293.

(t) Ali Hossxin, (1001) 23 A. 306.

Inf Rami, (1889) R%)t. Unrep. Cr. C. 484.

(v) Shcra, (1879) P. R. No. 35 of 1879.

(w) Suria , (1882) 2 A. W. N. 224.

(x) (1870) 1 Weir 435.

(y) (1866) 1 Weir 435.

(z) .Ishree Persaud, (1875) 24 W. R. (Cr.) 49.

(a) Hamilton, (1837) 8 C. and P. 49.

(b) John Taylor , (1820) R. and R. 419.

714

THE INDIAN PENAL CODE

CHAP. XVII

there must be a finding that the place in which the theft was committed was a build-
ing. If a pound was a place merely fenced off as an enclosure without any wall or
rim, held, it could not be regarded as a building for purposes of this section (c).

Theft from a godown : — Where the accused entered into an agreement with
the complainant that the latter should advance him money up to a certain sum on
the hypothecation of goods to be deposited by him as security and the accused
afterwards removed the goods placed as security from the godown, the Calcutta
High Court has held that the question of dishonesty was a matter of inference to be
drawn from the accused’s conduct and that the removal was dishonest and the
accused was guilty of an offence under this section (d).

For further commentary see notes under s. 379.

381. Whoever being a clerk or servant, or being employed
Theft by clerk or in the capacity of a clerk or servant, corn-
servant of property in mits theft in respect of any property in the

possession of master. possession of his master or employer, shall

be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

This section punishes theft by a clerk or servant of property in possession of
his master or employer and provides for increased penalties.

Analogous law s — The provisions of s. 67 of the Larceny Act, 1861,(24 and 25
Viet., c. 96) almost correspond with this section, and s. 96 runs as follows : —

‘ Whosoever being a clerk or servant or being employed for the purpose or in
the capacity of a clerk or servant, should steal any chattel, money or valuable security
belonging to. or in the possession or power ol nis master or employer, shall be guilty
of felony, and being convicted thereof shall be liable, at the discretion of the Court

to be kept in penal servitude for any term not exceeding fourteen years

or to be imprisoned and if a male under the age of sixteen

years, with or without whipping. ”

Hence it will be seen that English cases are applicable in the construction of
this section.^ ,

Distinction between s. 381 and s. *408 Although the language of
both the sections js almost the same, the distinction is that this section deals with
theft by clerk or servant of property in the possession of the master, whereas s. 408
requires that the clerk or servant being in any manner in possession of or being
entrusted with the dominion over property commits criminal breach of trust.
Thus this section applies when the possession is with the master whereas s. 408
applies when the property is in the possession of the servant.

Where a third party delivers a property to a servant for the use of his master
and if such servant has not done any act to change his original possession into a
possession on behalf of his master, his misappropriation of property would not be
theft under this section, but criminal breach of trust (e).

Procedure Cognizable— Warrant— Not bailable— Not compoundable —
Triable by Court of Session, Presidency Megistrateor Magistrate of the first or
second class— Triable summarily where the value of the property stolen does not
exceed fifty rupees.

The trial of an offence under this section by a third class Magistrate is illegal (f).

(c) Lakshmanu Goundan , (1920) 52 M. L. J. 143 (145).

(d) Kattikeswar Rov v. Bansidhar Byas, 25 Cr. L. J. 222 : 76 I. C. 654 : A. I. R.

(1923) Cal. 694. '

(«•) Waite'* czm, 2 East P. C. 570.

(f) Nga Thaung , 2 Bur. L. J. 75; A. I. R. (1924) Rang. 12.

THEFT

715

SEC. 381 ]

Charge I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows: —

That you, on or about the day of ~ , at •

being a clerk (or servant or being employed in the capacity of a clerk or servant)

to one XY, did commit theft by stealing certain property, to wit — - — ” in

the possession of the said XY and thereby committed an offence punishable under
s. 381 of the Indian Penal Code and within my cognizance (or the cognizant of the
Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Absence of evidence of ownership— conviction bad In the absence
of evidence as to ownership of stolen property the conviction under this section
is bad (g).

Clerk or servant Where defendant employed P to clean out a drain and
in course of cleaning the drain P took up part of an adjoining highway and replaced
the same in any improper manner and with insufficient materials in consequence
of which the plaintiff’s horse passing by that way was injured, held that as under the
circumstances P was acting not as a contractor but as the servant and under the
control of the defendant, and consequently the defendant was responsible to the
plaintiff for injury (h).

In England, a commission agent has been held to be a servant (i). Erie, C. J.,
in another case said : “ The cases have established that a clerk or servant must
be under the orders of his master, or employed to be within the statute : but if a man
be entrusted to get orders and to receive the money, getting the orders when and
where he chooses, he is not a clerk or servant within the statute ” (j),. So Black-
burn, J., said : “The test is, was the prisoner under the control and bound to obey
his master, if he was bound to bestow his whole time upon his master, this would
be strong evidence but this i s not essential “ (k). The mode in which the defend-
ant is remunerated for service is immaterial. It may be by salary or commission (1).
When the prisoner was a commission agent and received son^e money for prose-
cutions which he fraudulently appibpriated to his own use and where it was not
shewn that he was a clerk or servant or employed in the capacity of a clerk or servant,
he could not be convicted of embezzlement (m).

Law, in this respect, discriminates between an organisation formed for a criminal
purpose and one which is illegal merely because it is not recognised or is not other-
wise legal (n).

Where a pony was in the custody of the prisoner who was in the character of
a servant to the prosecutor, and that it was not in his possession as bribe, it was
held that he was not guilty of larceny (o).

Where the prisoners were charged with having stolen a sum if money shut up
in a box and placed in the Police Treasury buildings over which they as burken -
dazes were placed in guard, it was held that they were guilty of an offence under

(g) In re. Doraiswami Aiyar , (1915) 10 Cr. L. J. 640 : 30 I. C. 464 (Mad.).

(h) Sadler v. Henlqch, (1855) 4 E. and B. 570.

\i) Turner , 11 Cox. C. C. 551.

(j) Bowers, 35 L, T. M. C. 208.

(k) Negus , (1843) 42 L. J. M. C. 02 ; Winmil , (1851) 5 Cox. 326.

(l) Ibid ; see also Bailey, (1871) 12 Con. 56.

> fa) May, (1881) 30 L. J, M. C. 81.

(n) Stainer , il879) # L. R. 1 C. C. R. 230.

(o) Stanbury, 2 Cox. 272.

716 THE INDIAN PENAt CODE [ CHAP. XVll

this section and not under s. 409 (p). Theft by constables of property from the
house they were employed to guard is punishable under 9 . 380 and not under
S*409 (q).

Where an agent who got a small share in the profits on being charged under
s. 406, infra, pleaded that he was a partner, the Calcutta High Court held that he
was a servant, the agent’s getting a share in the profits did not constitute him a
partner* (r).

A hired boatman does not come within the definition of a clerk or servant under
this section. Theft by such person on board a boat comes under s. 380 (s).
Where the accused, the owner of a cart, hired for the purpose of conveying certain
property to the complainant’s house, abstracted a portion of the property, held , the
offence committed was one under this section (t).

Where a station-master on the East Indian Railway under an arrangement
with the Company received a fixed allowance in respect of the marking and unloading
work at his station and one of such men, engaged as marksman, was convicted under
s. 408 for having misappropriated a sum of Rs. 5-10-0 and it was contended on his
behalf that he was not a clerk, but the Allahabad High Court held that he was a clerk.
The High Court, however, quashed the conviction on other grounds (u).

Statute 39 Geo. VII, c. 83 (Embezzlement by servants, etc.) extends only to such
servants as are employed to receive money, and to instances in which they receive
money by virtue of their employment. An apprentice under 18 years is within the
statute (v). Where the owner of a colliery employed the prisoner as Captain of one
of his barge? to carry out and sell coal and paid him for his labour by allowing him
two-thirds of the price for which he sold the coals, after deducting the price charged
at the colliery, it was held that the prisoner was a servant within the meaning of
Statute 39, Geo. Ill, c. 85, and having embezzled the pric* he was guilty of
larceny (w)«.

The driver of a glass-coach hired for the day is not the servant of the party
hiring it, so as to bring him within the Statute relating to larceny by servants (7 and
8 Geo., 4 c. 29, p. 46) (x).

A man is sufficiently a servant within the mr aing of Statute (39 Geo. IV, c. 85)
although he is only occasionally employed, when he has nothing else to do ; and it is
sufficient if lie was employed to receive the money embezzled, though receiving
money may not be his usual employment, and although it was the only instance
in which he was so employed (y). Taking official papers out of officers custody
for showing it to a party’s vakil is theft by a servant (z).

Where the prisoner, who had worked pome time for the prosecutor was
asked to cash a cheque for doing which he was to be paid six pence, and he got the
cash and made off, it was held that he was not guilty as he was not a servant of the
prosecutor within the meaning of the English statute (a). Where by the rules of
certain unenrolled friendly societies, the members of one lodge were at liberty to

(P) Jm^nath Singh, (1865) 2 \V. R. (Cr.) 66.

(q) Boidnath Singh, (1*00) 3 W. R. (Cr.) 29.

(r) Laic hand Roy, (1868) 9 VV. R. (Cr.) 37.

(s) Bawocl Manji, {mi) 8 W. R. (Cr.) 32.

ft) (1881) 1 Weir 437.

(u) Karintaddin, (10i8) 40 A. 606, following Parameswqr Pat, (188G) 5 A. 201.

(v) William Melhsh, (1806) R. and R. 80.

(*) Harley, (1807) R. and R. 130.

(x) Hayden and Chuch, (1836) 7 C. and P. 416.

(y) Spencer, (1815) R. and K. 209.

it) Valldthram Ganpatmm, (1025) 27 Bom. L. R. 1391 : 94 1. C. 981 : A. I. R.
(1926) Bom. 122.

(a) Freeman , (1834) 6 C. and P. 534. •

THEFT

717

SEC. 382]

pay their contributions to another lodge, if more convenient to them so > to do, it
was hfld that the secretary was guilty of embezzlement within the meaning of the
English statute (b)

382. Whoever commits theft, having made preparation
for causing death, or hurt, or restraint or
tioI hef m^? e for P Sg fear of death, or hurt, or of restraint, to any
death, hurt or restraint person, m order to the committing of such
t?ng F of the thef t commit theft, or in order to the effecting of his
escape after the committing of such theft,
or in order to the retaining of property taken by such theft, shall
be punished with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.

Jllustritiens.

(a) A commits thelt on property in Z’s possession ; and, while committing this
theft, he has a loaded pistol under his garment, having provided this pistol for the
purpose of hurting Z in case Z should resist. A has committed the offence defined
in this section.

(.*’) A picks Z s pocket, having posted several oi his companions near him, in
order that they may restrain Z, if Z should perceive what is passing and should resist,
or should attempt to apprehend A. A has committed the offence defined in this
section.

Theft— s. 378. Hurt-s.319.

Restraint — s. 339. Causing death — s. 299.

Person — s. II.

This section deals with an aggravated form of theft. When the accused com-
mits theft after having made preparation for causing death* hurt, or restraint to the
person in whose house the theft is committed or from whom the theft is committed
or in order to effect escape after the commission of theft or in order to the retaining
of property taken by such theft, this^section applies.

By the infliction of grievous hurt, theft becomes robbery and all parties con-
cerned in the offence are liable to punishment (c).

Procedure Cognizable-Warrant— Not bailable— Not compoundable—
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Proof of actual theft is necessary before conviction under this
section : — The Lahore High Court has held that in order to sustain a conviction
under this section, actual theft must have been committed (d).

Charge : — I (name and office of Magistrate , etc.) hereby charge you f name
of accused ) as follows : —

That you, on or about the day of , at- ,

committed theft of ( mention the article ) the property of XY, after having made pre-
paration for causing death, (or hurt or restraint or fear of death or of hurt or of re-
straint) to the said-^y, to wit by (describe the mode of preparation made)

in order to the committing of the said theft (or in order to the effecting of his escape
after the committing of such theft, or in order to the retaining of property taken by

(b) Worthy. (18150) 1 Cox. 255 ; Proud, (1801) 9 Co*. 22.

S ’ Hushwl Sheikh, J\860) 6 W. R. (Cr.) 85.

Lai Singh, (1023) 25 Cr. L. J. 38 0 : 77 1. C. 431 ; A. I. R. (1023) Lah. 512.

718 THE INDIAN PENAL CODE [ CHAP. XVII

such theft), thereby committed an offence punishable under s. 352 of the Indian
Penal Code and within the cognizance of the Court of Session (or my cognizance).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

PumaHlhacttt As to punishment for an offence under this section enquired
into by a Council of Elders in a Punjab Frontier District, in the North West Front-
ier Province or in Beluchistan, see s. 12 of the Frontier Crimes Regulation, 1901
(III of 1901) Punj. and N. W. Code.

Theft after preparation made for causing death f hurt, or restraint in
order to the committing of theft “ The possession by a thief at the time of
his committing a theft of a knife or other weapon, which, if used on a human being,
might cause death or hurt, would not of itself justify a conviction under this section.
There must be something to show or from which it may properly be inferred,
that the offender made preparation for causing one or more of the results mentioned
in the section ” (e).

Of Extortion .

383. Whoever intentionally puts any person in fear of any
Extortion injury to that person, or to any other, and

thereby dishonestly induces the person
so put in fear to deliver to any person any property or valuable
security or anything signed or sealed which may be converted

into a valuable security, commits ‘extortion.’

*

Illustrations.

(a) A threatens to publish a defamatory libel concerning Z unless Z gives him
money. He thus induces Z to give him money. A has committed extortion.

(b) A threatens Z that he will keep Z's child in wrongful confinement, unless
Z will sign and deliver to A a promissory note binding Z to pay certain money to
A Z signs.and delivers the note. A has committed extortion.

r • ■ '

(c) A* threatens to send club-men to plough up Z’s field unless Z will sign and

deliver to B a bond binding Z under a penalty to deliver certltifi ; to B, and

thereby induces Z to sign and deliver the bond. A has committed is^tortion .

(d) 4 , by putting Z in fear cf grievous hurt, dishonestly induces £ to sign or
affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper
to A. Here, as the paper so signed may be converted into a valuable security, A
has committed extortion.

Person — s»IL Injury — s. 44.

Dishonestly — s. 24. Valuable security — s. 30.

This section defines extortion and says that the offence consists in intentionally
putting a person in fear by threats or otherwise and thereby dishonestly inducing
such person to deliver to any person any property or valuable security.

“ The essential ingredient in extortion is that the offender dishonestly induces
the person put in fear to deliver property " (f). t ^

Analogous law : — The offence described here as 4 extortion * is unknown
to English law but the corresponding provision of the English law i* to be found
in Larceny Act, .1861 (24 and 25 Viet. c. 95) s. 45 of which runs as follows : —

(e) Per Fox, J , in Wga Shan Gale, (1003) 10 Dur. L. R. 87.

(f) Morgan and Macpherson, ‘ lndiaif Penal Code 1 p. 348,

EXTORTION

719

SEC. 383 ]

“ Whosoever shall with menaces or by force, demand any property, chattel,
money, valuable security or other valuable tiling of any person,’ with intent to steal
the same shall be guilty of felony, and being convicted thereof, shall be liable to be
kept in penal servitude."

There are other provisions of the same Statute, e.g. % Ss. 44, 46, 47 and 48,
which have been practically summed up in the expression * puts any (person in fear
of any injury to that person \

Distinction between theft and extortion : — The object of both tfie offences
is the same, oiz., wrongful gain, the difference consists in the method.

In theft the property is removed without the consent of the person in possession,
whereas in extortion the consent to the delivery of the property is obtained by
putting the person in possession of the property in fear of any injury to him or to
any other person.

Although there is a common feature between the offence of ‘ extortion " and
^that of ‘ cheating * they cannot be regarded as two aspects of one offence. That
they are distinct offences is indicated by the manner in which punishment is provid-
ed for each of them (g).

Extortion distinguished from cheating:— In ' extortion* the content
is obtained by overpowering the will of the owner, by show of fear, whereas in
4 cheating ’ the consent is obtained by fraud.

Extortion and robbery Extortion is ‘robbery 4 if the offender at the
time of committing the extortion, is in the presence of the peison put in fear,
and commits the extortion by putting that person in fear of instant death, of instant
hurt, or of instant wrongful restraint to that person, or to some other person and
by so putting in fear, induces the person so put in fear then and there to deliver
up the thing extorted. *

It was held that obtaining money from another by force by a threat of carrying
him before a Magistrate and accusing him of an unnatural crime is robbery (h).

Threats of criminal accusations are modes of extortion dealt with by Ss. 388
and 389, infra.

Where persons under pretence of an auction got a woman into a house and
compelled her by threats of carrying her before a Magistrate and to prison for not
paying for ..a lotpretended to have been bid for by her, to pay them 3s„ through
fear of prison arid for the purpose of obtaining her liberty but without fear of any
other personal violence, it was held that the offence was not robbery but duress (i).

Where the prisoners threatened to bring a mob from Birmingham and burn
the prosecutor’s house down, if he did not give them money, which he did promise
under fear of that threat, it was held that the prisoners were guilty of robbery (j),
but where the evidence established that the complainant gave 2 rupees to the accused
from fear that if he did not give them, the complainant would lose his situation
as fieadqh on the Small Cause Court Judge s establishment, the Calcutta High
Court held that the accused would be guilty of extortion (k). Where it is suffi-
ciently shown that the money (Rs. 200) was not voluntarily given by the com-
plainant to the accused, a Sub-Inspector of Police who had wrongfully confined
him, it was held v that the accused committed the offence of extortion (1).

Ch V fdra Qkifiaji Mohatir . (1928) 30 Bom. L. K. 9(17 : A. I R, (]02$)

(h) Donnolly's case. (1779) 2 East P. C. 716.

(i) Wood. (179 2) 2 East P. C. 732.

(j) A$tle/s caie , (1792) 2 East P. C. 729.

W Men Abbtu A4i v. Anted Ah , (1872) 18 VV R. (Cr.) 17

(1) Akhoy Kumar v. Jagat Chunder, (1900) 27 C. 925.

720

THE INDIAN PENAL CODE

[CHAP. XVII

The Bombay High Court did not uphold the conviction of a prisoner where
it was found that there was no such fear of injury as is contemplated by this sec-
tion nor was the money given by the complainant in consequence of any such fear
of injury (m).

What is extortion : — To amount to the offence of extortion, property must
be obtained %y intentionally putting a person in fear of injury to that person, and
thereby dishonestly inducing him to part with his property (n). The Allahabad
High Court has held that before a person can be said to put any person into fear
of any injury to that person, it must appear that he has held out some threat to do
or to omit to do what he is legally bound to do in the future, on the other hand,
if all that a man does is to promise to do a thing which he is not legally bound to
do, and say if money is not paid to him he would not do that thing, such an act does
not amount to an offence of extortion (o).

Demanding money for doing what one is not bound to do is no
offence: — Where a Nika Khawan was convicted under this section for having
‘ extorted Rs. 5 for reading a Nikah the Lahore High Court held that he is ndt
bound to read Nikah for a person unless he chooses to do so, and it is no offence
for him to demand any fee he likes for doing so (p).

Picketting Where the accused realised fines by means of picketing for the
purpose of preventing the sale of foreign cloth, it was held that the accused com-
mitted the offence of extortion (q), although in an earlier case, Stuart, J., sitting
singly, held that picketting by itself is laudable but when associated with the word
4 boycotting* which is apt to proceed from ostracism to active annoyance and when
the active annoyance has been known, in many instances, to culminate in bodily
injury, then a man who is threatened with picketting and knows that picketting
can be of such a nature, is ‘ put in fear of injury ’ within the meaning of this sec-
tion, (r). See now the Picketting Ordinance No. V. of 1930 now embodied
in Criminal Law Amendment Act XXIII of 1932. There only peaceful picketting
was prohibited but the use of the expression 4 loiter * makes the application of the
Criminal Law Amendment Act wider than the corresponding English Act.

What may be the subject of extortion 44 The rubject of extortion are,
it seems, the same as subjects of theft, although the word ‘ moveable 4 is not used
in this definition '* (s). '

* 384. Whoever commits extortion shall be punished with

Punishment for imprisonment of either description for a term
extortion. , which may extend to three years, or with fine,

or with both.

This section provides punishment for extortion.

“ Notwithstanding the circumstance that there is something approaching Jo
bodily injury (putting in fear of injury) in extortion, the punishment which may
be awarded is not greater than for theft. The theft of a thing, that if, (he taking
of it dishonestly without consent, will not usually be an offence of such baseness
as the extortion of it, that is, the causing its delivery by a person who consents
to deliver it, because he is put in fear and dares not to withhold his consent.

(m) Abdul Rader , 3 Bom. H. C. R. (Cr.) 45.

(n) M'ajan and Cbhoy Chat an Das, (1865) 4 W. R. (Cr.) 5.

(o) Habibul Rassak , (1923) 10 A. 81 : 21 A. L. J. 850 : A. I. R. (1924) All. 197.

(p) Nizam Din , (1923) 4 Lab. 179 : 24 C**. L. T. 958 : 75 I. C. 542.

(q) Local Government v. Hanmant Rao, 25 Cr. L. J. 6it : 75 I. C. 704 ; A. I. R.

(1924) Nag. 19.

(r) Chaiurbhouj, (1922) 45 A. 137.

(s) Morgan and Macpherson, Penal Code, p. 345,

OF EXTORTION

721

SEC. 384 ]

44 Extortion would appear, except from the wide range given to this offence
by the expression 4 fear of injury ’ to be a more grave offence and to deserve in its
graver form a heavier punishment.

44 The definition of extortion requires that the person should in fact be put
in fear of injury and that the object (delivery of property, etc.) should be accom-
plished. It must therefore be proved , that the person was put in fear of an injury
whether an injury of body, mind, reputation or property, to himself or another—
that the act— by which this fear was excited was intentionally done by the accused
person — that the property was delivered to the accused, or according to his direc-
tion to any other person or put in any place by his orders ; — and that this was done
4 dishonestly ’ as to which a strong inference will arise on proof of the former
matters that a dishonest intention existed’* (t).

Procedure : — Non cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Sanction s— ' The sanction of the Local Government is necessary before any
proceedings for an offence punishable under this section can be maintained against
a Chairman of a Municipality for acts alleged to have been committed by him
while acting or purporting to act in the discharge of his duties (u). Where the ob-
ject of a conspiracy was to commit an offence under this section and no sanction
had been accorded by the Local Government to the prosecution of the accused
under s. 120-B for conspiracy, held that the Court could not take cognizance of the
offence of conspiracy without sanction, and convictions under Ss. 384/114 were
set aside and retrial ordered (v).

Abetment : — The Calcutta High Court has held that the mere fact of a
chowkidar, in whose presence the offence of extortion is committed to disapprove
of the conduct of the person committing extortion cannot render him guilty of
abetment (w). The Bombay High Court has held that it is not necessary that the
threat should be used, and the property received, by one and the same individual —
it may be a matter of arrangement between several persons that the threat should be
used by some, and the property received by others ; and they would all be guilty
of extortion. It would not, under such circumstances, be necessary to charge
the receivers with abetment, although that might be done ; but then, under the
provisions of the Code, the punishment would be the same as for extortion (x).

Place of trial : — A is put in fear of injury within the local limits of the
jurisdiction of Court X , and is thereby induced, within the local limits of the juris-
diction of Court Y, to deliver property to the person who put him in fear. The
offence of extortion committed on A may be inquired into or tried either by X or
Y(y).

Charge to the Jury: — When the defence evidence was equally 'balanced,
omission of this point has been held to have affected the minds of the Jury and
occasioned a miscarriage of justice (z).

Charge t^-In a charge under this section the approximate ahiount alleged to
have been obtained from each person and the nature of the extortion used against
each person must be stated in the charge with some approach to accuracy (a).

(t) Morgan and Macpherson, pp. 340 and 347.

(u) Ramnarayan Sarma v. Parswanath Sen , (1926) 50 C. 227 distinguishing
Mohammed Yeasin , (192*1) 52 C. 431.

(v) Par Mukerji, J., in Niba/an Chandra Bhattacharjee, (1929) 67 C. 99.

(w) Gopal Chander Sirdar , (1882) 8 C. 728.

ix) Shanker Bhaexwat, 2 Bom. H. C R. 394.

(y) Illustration (c), s. 179 of the Code of Criminal Procedure.

(*) / Jagmohan (192) 28 A. L. J. 480.

(a) Ramchandra Sahai , 17 Cr. L, 411 (Ail.) : 35 I. C. 971,

52

722 THE INDIAN PENAL CODE [ CHAP. XVII

Form of charge t— I (name and office of Magistrate, etc.) do hereby charge
you (name of accused) as follows

That you, on or about the day of , at ,

committed extortion by putting XY in fear of a certain injury, to wit , and

thereby dishonestly induced the said XY to deliver to you a certain property to wit

and that you thereby committed an offence punishable under

s. 384 of the Indian Penal Code, and within the cognizance of the Court of Session
(or my cognizance).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

The essential ingredients of the offence of extortion— are (i) the

putting any person in fear of any injury ; and ( it ) thereby inducing such person
dishonestly to deliver property.

To constitute an offence under this section it becomes material for the Court
to satisfy itself that the accused did put the complainant in fear of injury with the
object of inducing him to pay him money (b).

* intentionally puts any person in fear of any injury to that person or"
to any other* : — The provisions of Ss. 44, 46, 47 and 48, of the English Statute
24 and 25, Viet., c. 76, have been expressed by these expressions.

The Authors of the Code observe : " We conceive it will be a question for the
Court whether the injury threatened was such as was likely to produce the effect
intended, and whether under the circumstances the party was really put in fear
believing the injury to be inevitable if he did not comply " (c).

The word ‘ intentional * excludes cases of pure theft where the fact of theft may
cause alarm in the mind of the person whose property is being removed.

Morgan and Macpherson in their valuable commentary observe : “ The wide
interpretation of the word 1 injury * must be borne in mind (see s. 44). Whether
a person has in fact been put in fear of injury is a matter which the Court must
decide. The age, sex and situation of the person threatened may properly be taken
into consideration. It seems necessary to constitute the offence that the person
threatened should be actually put in fear ; upon the whole of the facts, however,
if ther e is reason enough to say that similar circumstances would ordinarily excite
fear in persons of the same age, etc., as the person threatened, the Court will not
too easily listen to suggestions or evidence adduced to show that the passion of fear
was in truth aroused, nor on the other hand, consideiing that the proof that he was
put in fear will often mainly be the evidence of the person threatened and that
exaggerated if not false versions of the occurrence are not improbable, should the
charge of extortion be considered as established without a cautious investigation ’’ (d).

The offence has nothing to do with the truth or falsehood of the accusation
but with the intention and its effect upon the mind of the victim (e).

Threat of criminal charge Where the prisoner threatened 1 ^ boy # s father
with an abominable offence upon a mare belonging to him and stated to him that
if the father did not buy the mare of him and pay him £3. 10s. for her, he would
accuse the boy, the father refused and the prisoner pursued the same course to the
boy's master, and the Jury found the prisoner guilty, it was held that the prisoner

(b) Tapeshri Prasad , (1910) lo A. L. J. 127 (128) : 18 Cr. L. J. 317 : 38 I. C.

429 .

(c) Note M.

(d) Morgan and Macpherson, pp. 344 and 345.

(p) Hamilton , 1 C. and K. 212, * *

SEC. 384 ]

OF EXTORTION

723

was guilty of threatening to accuse of an infamous crime within 24 and 25 Viet, c.96 t
s. 47 (f). On an indictment for sending a threatening letter, the prisoner’s declara-
tions of the meaning of the letter are admissible in evidence (g). Where a police-
man late at night met the prosecutor who had just parted from a female in a street
to whom he had been talking and told him that he had been talking to a prostitute
and demanded £ 1 as penalty and that if the prosecutor would give him 5s. he might
go about his business and the prosecutor eventually gave the policeman 4s. 6d. ;
but while the policeman was demanding the other six pence, an Inspector came
there when he desisted, it was held that the prisoner was guilty under 24 and 25
Viet. c. 96, s. 45 for demanding money with menaces (h).

The Calcutta High Court has held that the terror of a criminal charge is a
fear of injury within the meaning of s. 383 and extortion may be equally committed
whether the charge is true or false (i).

Where a letter was written by the prisoner to the complainant that he knew
that" some persons would burn his house and the catastrophe might be averted
if some money were paid to the prisoner, held , the letter was a threatening letter
within Statute 7 and 8 Geo. IV, c. 29, s. 8 (j). Where the prisoner, a travelling
grinder, ground two pairs of scissors for the prosecutrix, and oq her refusing to
pay the amount on the ground that the charge was excessive the prisoner assumed
a menacing attitude and the Jury found that the money was obtained from the
prosecutrix by menaces and found the prisoner guilty, it was held per curiam
that the conviction was right (k). Where a village headman finding some persons
setting cocks to fight on a public road threatened them with a prosecution and
subsequently took money as illegal consideration for not prosecuting them and
was convicted under s. 161, the Lower Burma Chief Court set aside the conviction
and altered the same to one under s. 384 (1).

1 thereby dishonestly induced the person so put in fear to deliver to
any person, any property or valuable security’ etc. This is another essential
ingredient of the offence of extortion. The fear caused by the threat must be
the reason which caused the person so put in fear to deliver property.

Delivery by the person put in fear is (according to the definition contained
in s. 383 of the Penal Code) is es^ntial in order to constitute the offence of ex-
tortion (m).

Intention must be dishonest Where a toll-keeper demanded tolls for
carts, which tolls he believed he had a right to levy from the drivers of the carts,
whereupon cartmen left the carts at the place, it was held that there was no ex-
tortion inasmuch as the element of dishonesty was wanting (n).

Money lent to pay amount extorted .‘—Where the accused, a Sub- Inspector
of Police, wrongfully confined the complainant and extorted from him Rs. 200 under
a threat that he would not release the complainant unless the money were paid
and the complainant thereupon paid him the amount by borrowing from a money-
lender, the^ accused was convicted under Ss. 342 and 384 of th« Penal Code, the
Calcutta High Court upheld the conviction holding that the money was extorted,

(J) Reiman, (1805) 10 Cox. 159; Horatio Qrachnell, (1860) 10 Cox. 108; Rieharis
(1868) 11 Cox. 43.

(e) James Tucker, (1826) 1 Mood. C. C. 134.

(Jil James Robertson, (1 <364) 10 Cox 9.

(i) ' Mobanuk, (1867) 7 W. R. (Cr.) 28.

(j) Thomas Smith , (1849) 1 Den. C. C. 510.

(kf Lovell, (1881) 8 Q. B. D. 185.

(l) NgaKhan Tha, (1912) 6 Bur. L. T. 92 : 14 Cr. L. J. 413 : 20 I. C. 237

(m) Duleooddeen Sheikh, (1866) 5 W. R. (Cr.) 19.

(n> Pudati C bench h* R eddi, (1882) 1 Weir 440.

724

THE INDIAN PENAL CODE

[ CHAP. XVII

because the Sub- Inspector refused to release the complainant, as he was bound to
do, unless he were paid the money, and held further that the money-lender paying
money under such circumstances could not be regarded as an accomplice of the
Sub- Inspector in such misconduct (o).

Where a village chowkidar, who is not a police-officer, arrested a person who
was stealing a few wisps of sursou outside his circle and after detaining him for
the night released him upon receipt of a bribe of ten rupees for forbearing to
report to the police, held , it was not the statutory duty of the chowkidar to arrest
or detain the thief, he could not be convicted under s. 221 but he was guilty of an
offence under this section (p).

385. Whoever, in order to the committing of extortion,
Putting person in fear puts any person in fear, or attempts to put

of injury in order
commit extortion

to

any person in fear, of any injury, shall be
punished with imprisonment of either
description for a term which may extend to two years, or with fine,
or with both.

Extortion-^s. 383.

Injury — s. 44.

This section punishes an attempt to commit extortion.

“ A distinction between the inchoate and the consummated offence is recog-
nized. The attempt to commit extortion has proceeded so far towards completion
that a person has been put in fear of injury, or that there has been an attempt to
excite such fear ; but the offence is incomplete because there has been no delivery
of property, etc. The Court must be satisfied that the putting in fear is with
the intention of extorting delivery of property " (q).

Procedure : — Not cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at ,

put XY (or attempted to put XY) in fear of an injury, to wit in order

to the committing of extortion and that you thereby committed an offence punish-
able under s. 385 of the Indian Penal Code, and within my cognizance (or the cog-
nizance of the Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Essential ingredients of the offence under this section r— For the

purpose of s. 385 it is necessary that the accused should have out some person
in fear of injury; in order to extort some property from him. The definition of
‘ injury * in s. 44, shows that it embraces only such harm to body, mind, reputa-
tion or property as may be caused illegally (r).

The threat that God will punish** man for some act or omission of his is not
such an injury as s. 383 refers to s. 385 therefore is not applicable to such a case
for the illustration to s. 383 (which defines 4 extortion 'Jl show that the injury

(o) A khoy Kumar v. Jagat Chundir, (1900) 27 C. 925 ; 4 C. W. N. 755, approved
in Deonandan Ptrshid. (1900) 33 C. 049 (053) : 10 C. W. N. 069.

(p) Bhagwan Din, (1929) 62 A. 207: (1930) A. L. J. 212.

(q) Morgan and Macplierson, 4 Penal Code, * pp, 347 and 348. . _

(r; In re. Mantri Mattapalli Namshtnga Rao, (1917) lb Cr. L. J. 445: «44

973 (Mad.).

OF EXTORTION

725

SEC. 386 ]

cnnfrmplatwl must be one which the accused can himself inflict or cause to be
inflicted (s).

Where F, a Mukhtar engaged in a criminal case on behalf of the accused in
that case, threatened, with intent to extort, to put questions to H and the ladies of
his household (who were prosecution witnesses in that case), which were entirely
irrelevant to the matters at issue, which were scandalous and indecent and which
were intended to insult and annoy, held, the Mukhtar committed an offence under
this section (t).

386. Whoever commits extortion by putting any person
Extortion b y putting in fear of death or of grievous hurt to that
a pereon in fear of death person or to any other, shall be punished
or grievous hurt. with imprisonment of either description for

a term which may extend to ten years, and shall also be liable to
fine*

Extortion — s. 383 . Person — ?. 1 1 .

Death — s. 46. Grievous hurl — s. 320.

This section provides for a more severe punishment when extortion is com-
mitted by putting the victim in fear of death or grievous hurt. " Some of those
things which come within the definition of ‘ extortion ’ are distinguished by a
description from the remainder, and a more severe punishment is provided for
them. These are extortions by putting in fear of death or of grievous hurt. Such
extortion is not robbery, unless the offender is at the time of committing it in
the presence of the person put in fear, and the fear of instant death,'* etc. (u).

Procedure Not cognizable— Warrant— Not bailable— Not compoundable
—Triable exclusively by Court of Session.

Charge — same as under s. 384, only substitute “ in fear of a certain injury’ for
‘ in fear of death or grievous hurt.'

387. Whoever, in order to the committing of extortion.
Putting person in fear puts or«attempts to put any person in fear of

hlrt, e fnorder°to«.mm“t death or of grievous hurt to that person
extortion. . or to any other, shall be punished with

imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

This section bears the same relation to the last as s. 385 to s. 384. Here
a heavier punishment has been provided for, because the offence of extortion here
is committed by putting or attempting to put any person in fear of death or
grievous hurt.

Scope : — To constitute an offence under this section it must be established
that the abduction was in order to commit extortion (v).

Where the accused, a drunken man, went up to the complainant's house having
a dah in one hand and called out, “Rich man, will you give me money or not? If
you do not give me money, I will cut you and your wife." The complainant and his
wife were in an inner room the door of which was closed. The accused kicked at

* 167 .

(s) Doraiswamy Ayyer t (1924) 48 M. 774 (779) : (1 926) M. W. N. 113.

(t) Fatal Husain, (1929) 9 P, 725.

(ujr Morgan and Macphcrson, p. 348.

(v) Po Lan, (1912) 6 Bur. L. T. 77 : 6 L, B. R. 160 : 14 Cr. L. J. 107 :

19 I. C.

726

THE INDIAN PENAL CODE

[ CHAP. XVII

it and slashed at it with his dah, but the door did not give way and the complain-
ant with his wife and daughter fled through the back part of the house. The
accused was charged with having attempted to commit robbery armed with a
deadly weapon, (t was ascertained by the headman that the accused had been
drinking toddy before the commission of the offence. The accused's defence was
that he was drunk and did not know what he did on the evening in question. He
was convicted under s. 398 and sentenced to transportation for 7 years, but the
Full Bench of the Lower Burma Chief Court altered the conviction to one under
this section and sentenced the accused to rigorous imprisonment for one year fw).

Procedure Not cognizable— Warrant —Not bailable— Not compound-
able — Triable exclusively by Court of Session.

Charge : — Fcr form see charge under s. 385 — the same as that with this modi-
fication : — 44 For 4 in fear of injury' substitute * in fear of death or grievous hurt/ '

388 . Whoever commits extortion by putting any person

Extortion by threat of in fear of an accusation against that persofi
accusation of an offence or any other, or having committed or at-
punishable with death tempted to commit any offence punishable
with death, or witn transportation tor lire,
or with imprisonment for a term which may extend to ten years,
or of having attempted to induce any other person to commit
such offence, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine ; and, if the offence be one punishable under
S. 377 of this Code, may be punished with transportation for life.

This section punishes more severely cases of extortion by threat of accusation
of an offence punishable with death, transportation for life or with the imprisonment
for a term of ten years. If the accusation is of an unnatural offence, the sentence
provided for is much more severe.

Scope:— This section and the next following under the general head of
extortion, contain special provisions for extortion and attempted extortion by
threats of accusation or charges of offences punishable with death (x).

“Here asin the 386th section, a heavier punishment is provided for extortion,
when it is committed with certain circumstances of aggravation. 4 In fear of an
accusation.’ This expression probably applies to threats of charging a person
falsely before a judicial tribunal or some public authority with the commission of
an offence " (y).

. Procedure Not cognizable— Warrant — Bailable— Not compoundable—
Triable by Court of Session.

Charge 1 1 ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows

That you, on or about the day of , at ,

committed extortion by putting XY in fear of an accusation made against him or

against of having committed (or attempted to commit) the

offence of ( name of offence ) which is an offence punishable with death [(or with
transportation for life or with imprisonment for a term which may extend to ten

(w) N:/e Turn Saw. (1912) 6 L. B. R. 100 (F.B.) : 5 Bur. L. T. 175 : 13 Cr. L. J.
864: 17 1. C. 800.

(x) Mobarruck , (1867) 7 W. R. (Cr.) 28.

(y) Morgan and Macphercon, p. 349. #

SEC. 389 ]

OF ROBBERY AND DACOITY

727

years) or under s. 377) ] and thereby dishonestly induced the said XY to deliver
to you ( mention the thing or property) and that you thereby committed an offence
punishable under s. 388 of the Indian Penal Code, and within the cognizance of
the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Fear of an accusation :~Where the prosecutor proved that the prisoner
obtained his money by threatening to accuse him of an unnatural crime and the
prisoner’s defence was that the prosecutor had made an attempt to commit such
a crime, and had voluntarily given him the money, not to prosecute him for it,
Littledale, J., held : “ It was equally a robbery to obtain a man’s money by
intimidating him with a threat of an accusation of an infamous crim<^ whether
the prosecutor were really guilty of the crime or not ; as if he was guilty. The
prisoner ought to have prosecuted him for it, and not have extorted money from
him ; but if the money was given voluntarily and without any previous threat, the
indictment cannot be supported ” (z). Where the prisoner was indicted for
feloniously threatening to accuse the prosecutor of an infamous crime, with intent
to extort money from him and it was proved that the prisoner had gone up to the
prosecutor and said to him : “ If you do not give me a sovereign I will charge you
with an indecent assault,” it was held that the evidence for the prosecution tending
to show that the prisoner had made a similar charge two years before ought not
to be admitted (a).

389 . Whoever, in order to the committing of extortion.
Putting person in P f uts or attempts to put any person m fear
fear of accusation of or an accusation, against that person or any
nfi t or tion^ er 10 C ° m " ot ^ er » of having committed, or attempted
to commit, an offence punishable with death
or with transportation for life, or with imprisonment for a term
which may extend to ten years, shall be punished with imprison-
ment of either description for a term which may extend to ten
years, and shall also be liable to fine ; and, if the offence be
punishable under section 377 of this Code, may be punished
with transportation for life.

^ Procedure : Not . cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session.

Charge: Form same as under s. 388, substituting the words ** in order to
the committing of extortion did put any person ” for ” committed extortion by
putting any person. ”

Of Robbery and Dacoity.

The offence of robbery is distinct from theft or extortion, but* in every
robbery, either the offence of theft or the offence of extortion will be committed.
1* must not be supposed that what is robbery cannot be, or ceases to be, extortion
°l *h e ft« The line of separation is drawn not between the offence of robbery and
the offence of extortion, but between the extortion which is robbery and the
extortion which is not rdbbery. There is in like manner a line of separation, not
between theft and robbery, but between the theft which is robbery and the theft
which is not robbery ” (1).

00 'James Gardner , (4824) 1 C. and P. 470.

(a) Me. Donnell, (1850) 5 Cox. Cr. C. 153.

(b) Morgan and Macpherson, ' Penal Code, ’ p. 349.

1 28

THE INDIAN PENAL CODE

[ CHAP. XVII

This branch of the Chapter dealing with the offences of M Robbery" and
"Dacoity" are dealt with in thirteen sections. ‘Robbeiy* is defined in s. 390
and 4 Dacoity * is defined in s. 391. S. 392 provides punishment for 4 Robbery *
and s. 395 provides punishment for 4 Dacoity * ; s. 393 deals with attempt to
commit robbery and s. 398 deals with attempt to commit robbery or dacoity
when armed with a deadly weapon ; s. 394 deals with voluntarily causing hurt in
committing robbery ; s. 396 deals with dacoity with murder ; s. 397 deals with
robbery or dacoity with attempt to cause death or grievous hurt ; s. 399 punishes
making preparation to commit dacoity ; s. 400 punishes joining a gang of dacoits
whereas s. 401 punishes a person for belonging to a wandering gang of thieves
and s. 4Q % punishes assembling for the purpose of committing dacoity.

Robbery.

390. In all robbery there is either theft
or extortion.

Theft is ' robbery ’ if, in order to the committing of tfie theft,

When theft is rob-
bery.

or in committing the theft, or in carrying
away or attempting to carry away property
obtained by the theft, the offender, for that

end, voluntarily causes or attempts to cause to any person death
or hurt or wrongful restraint, or fear of instant death or of instant
hurt, or of instant wrongful restraint.

extortion

Extortion is ‘ robbery ’ if the offender, at the time of com-
mitting the extortion, is in the presence of the
robbery. extortlcm ,s person put in fear, and commits the extortion
by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that
person, or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver up the
thing extorted.

Explanation . — The offender is said to be present if he is
sufficiently near to put the other person in fear of instant death,
of instant hurt, or of instant wrongful restraint.

Illustration .

fa) A holds Z down, and fraudulently tnkcs Z's money and jewels from Z’s
clothes, without Z's consent. Here A has committed theft, and, in order to the
committing of that theft, has voluntarily caused wrongful restraint to Z. A has
therefore committed robbery.

lb) A meets Z on the high road, shows a pistol, and demands Z’s purse. Z t in
consequence, surrenders his purse Here A has extorted the purse from Z by putting
him in fear of instant hu.t, and being at the time of cominitting the extortion in his
presence. A has therefore committed robbery.

(c) A meets Z and Z s child on the high road. A takes the child, and threatens
to fling it down a precipice, unless Z delivers his purse. Z, in consequence, delivers
his purse. Here A has extorted the purse from Z , by causing Z to be in fear of instant
hurt to the child who is there present. A has therefore committed robbery on Z.

(d) A obtains property from Z by saying : “ Your child is in the hands of my
gang, and will be put to death unless you send us ten thousand rupees. " This is
extortion, and punishable as such but it is not robbery, unless Z is put in fear of
the instant death of his child.

Theft — s. 378. Extortion — s.383. 4 Voluntarily — s. 39.

Hurt — s. 319. 1 Wrongful restraint — s. 339. •

SEC. 390]

OF ROBBERY AND DACOITY

729

Analogous law : — The definition of * robbery ' is much wider than the same
offence as is known in English law, inasmuch as it includes violence or fear of
violence after the robbery has been completed, if caused for the purpose of enabling
the thief to carry away or attempt to carry away the property obtained by the theft.
Robbery under the Indian Penal Code, is an aggravated form of either theft or
extortion. Sir James Stephen says of robbery : “ The commonest form of theft
is taking and carrying away. If this form of the offence is committed in the pre-
sence of the owner and by actual violence or the threat of violence, the crime is
robbery ” (c).

This definition would include both forms of robbery in aggravated form of
theft and extortion, but there have been divergent rulings in England, noted under
the heading ‘ English cases . '

The Authors of the Code observe : “ In one single class of cases, theft and
extortion are in practice confounded together so inextricably that no judge however
sagacious could discriminate between them. This class of cases, there has, in all
systems of jui isprudence with which we are acquainted, been treated as a per-
fectly distinct class ; and we think that this agreement, though somewhat anomalous
is strongly recommended by convenience, we have therefore made robbery a
separate crime.

“ There can be no case of robbery which does not fall within the definition
either of theft or of extortion ; but in practice it will perpetually be matter of doubt
whether a particular act of robbery was a theft or an extortion. A large proportion
of robberies will be half theft, half extortion. A seizes Z, threatens to murder
him, unless he delivers all his property, and begins to pull off Z’s ornaments. Z
in terror begs that A will take all he has, and spare his life, assists in taking off
his ornaments and delivers them to A. Here, such ornaments as A took without
Z s consent are taken by theft. Those which Z delivered up from fear of death
are acquired by extortion. It is by no means improbable that Z’s right arm
bracelet may have been obtained by theft, and left arm bracelet by extortion;
that the rupees in Z s girdle may have been obtained by theft, and those in his
turban by extortion. Probably in nine-tenths of the robberies which are com-
mitted, something like this actually t&kes place, and it is probable that a few minutes
later neither the robber nor the persons robbed would be able to recollect in what
proportions theft and extortion were mixed in the crime ; nor is it all necessary
for the ends of justice that this should be ascertained. For though, in general, the
consent of a sufferer is a circumstance which very materially modifies the character
of the offence, and which ought, therefore, to be made known to the Courts, yet the
consent which a person gives to the taking of his property by a ruffian who holds a
pistol to his breast is a circumstance altogether immaterial ” (d).

4 “ Where the utmost proved against the prisoner was that the property was

snatched f away from the owner and as this did not cause fear of present instant
death and violence, ,, Glover, J., held that the offence was reduced to theft only (e).

* for that end * : To constitute the offence of dacoity, it is necessary that
death or hurt or wrongful restraint or fear of such instant evils should be caused
by the offenders, not only in order to committing of the theft, or in carrying away
property obtained by the theft, but also for that end , and that five or more persons
should be acting conjointly (f). When hurt or fear of instant hurt was caused for

(c) General View of Criminal Law, p. 140.

(d) Note N.

(e) * Rahman Khan, (4865) 3 W. R. (CrJ 14.

346- 88?1c^0 G ° Unjl8n V> KoikukQ * a \ hifU Goundcn , (1916} 18 Cr. L. J

730

THE INDIAN PENAL CODE

t CHAP. XVII

the end of the commission of theft, whatever violence was used, was used for the
purpose of dispossessing persons who are already in possession of some premises
and had no relation to the commission of theft, although theft may have been com-
mitted at the same time it does not amount to robbery as defined in s. 390 (g).
The essence of the offence under this section is that the offender for the end of
committing theft or cairying away or attempting to carry away properties obtained
by theft voluntarily causes or attempts to cause to any person death or hurt or
wrongful restraint fh).

Violence The use of violence will not convert theft into robbery unless the
violence is done for the end specified in this section.

Thief attacking pursuers after leaving stolen property is not guilty of robbery*
— Where thieves having abandoned stolen property, one of them threw stonfes at
their pursuers apparently to deter him from continuing the pursuit, the Madras
High Court held that the use of violence would not convert the offence of theft
into robbery because it was not committed for one of the ends specified in s. 390 (i).

The Bombay High Court held in a case where hurt was net caused for the
purpose of theft, but to avoid capture when surprised, that the stealing did not
conie^within the definition of robbery (j).

‘ voluntarily causes or attempts to cause death or hurt or wrongful
restriant 9 : —Hurt or restraint must be voluntarily caused.

Where the accused was convicted of robbery and it was found that the nose
of the complainant was not torn was an accident ; the claps of the nuth came loose,
and so the cartilage escaped, though pain was caused, and blood flowed, but
there was indubitably an intention, seconded by an attempt on the part of the
prisoner to cause hurt, the offence was held by the Calcutta High Court to be
robbery (k). The same view was held in an English case where Garrow, B., said :
“ The mere act of taking being forcible will not make this offence highway robbery ;
to constitute the crime of highway robbery the force used must be of such a nature
as to show that it was intended to overpower the party robbed, and prevent him
resisting, and not merely to g*t possession of the property stolen ; thus if a man
walking after a woman in the street, were by violence to pull her shawl from her
shoulders, though he might use considerable violence, it would not in my opinion,
be highway robbery ; because the violence was not for the purpose of overpowering
the party robbed, but only to get possession of the property” (1).

Wrongful restraint Where the prisoners, in order to the committing
of theft, voluntarily caused, or attempted to cause, fear of instant wrongful re-
straint to the persons whose property they took, the offence was held to amount to
robbery (m). The same view was held in an English case (n).

Restraint — implies the abridgement of the liberty of a person against his
will. Where he is deprived of his will-power by sleep or otherwise he cannot, while
in that condition, be subject to any restraint (n 1 ). In order to constitute the offence
of robbery, it is not necessary that the extortion should follow immediately upon
the restraint, provided there is fear of restraint at the time (n : ).

(g) Otaruddin v.Kafiluddi Manjhi, (1900) 5 C. W. N. 372.

(h) Mathura Thakur , (1901) 0 C.W.N. 72 (79).

(i) Ratio Kerio, 1 Weir 254, followed in Nga Po Thct, (1917) 10 Cr. L. J. 27 : 42
I. C. 987.

(j) Ratio Kerio, (1872) Rat. Unrep. Cr. C. 65.

(k) Teekai Bheer , (1866) 5 W. R. (Cr.) 95.

(l) Thomas Gnosil, (1824) 1 C. and P. 304.

(m) Duleeloodeen Sheikh , (1866) 5 W. R. (Cr.) 19.

(n) Merriman v. The Hundred of Chipenham, 2 East V. C. 709.

fnl) Fateh Muhammad, (1927) 29 P. R. 90 : A. I. R. (1928) Lah. 445 (2).

(n2) Kutuva Rowther v. Suppan Sasri. (1926) 28 Cr. L. J. 164 : 99 I. C. 596 (Mad.),

OF ROBBERY AND DACOITY

731

SEC. 390]

When is extortion robbery ? : — Extortion becomes robbery when it fulfills
the conditions mentioned in paragraph 2 of this section. In this respect the
offence is narrower than what is known as robbery under the English law. Under
the English law demanding money by menaces or threats will be robbery which
would be only ‘extortion’ under the Indian Penal Code.

Difference between robbery founded on extortion and robbery found*
ed on theft : — Mayne says : “ There is however an important difference between
robbery founded on extortion and robbery founded on theft. In the former case,
the entire menace must have been completed before the property was delivered
up, and must be the cause of delivery. In the latter case, it is indifferent whether
the violence or threat of violence has been offered in order to the committing of the
theft or in carrying away, or attempting to carry away, property obtained by the
theft” (o).

English cases : — As there are conflicting decisions of robbery in England they
have been noted under a separate head.

Thus where a man forced an car-ring from the ear of a lady with a felonioi^
intent (p), or where a man tore some hair in snatching a diamond pin from a lady s
head (q), or where the defendant took goods from (he prosecutrix of the value* of
eight shillings and by force and threats compelled her to take one shilling, the offence
was held to be robbery (r).

In England it has been held that no actual violence is necessary to constitute
robbery. What is important in the case of threats is the effect produced on the
mind of the prosecutor.

To obtain money from a person against his will, by threatening to carry him
before a Magistrate, and to accuse him of unnatural practices, amounts to the crime
of robbery (s).

Though the articles were not taken from the person of the owner still it has
been held to be robbery in England where they were taken in his presence while
he was under the influence of threat or menace (t).

It is not necessary that the injury and fear of injury should be in respect of the
person robbed. Thus, if a person takes a child in the presence of the prosecutor
and threatens to destroy him unless the prosecutor gives him money, it is robbery (u).
Snatching an article from a man will constitute robbery, if it is so attached to his
person or clothes as to afford resistance (v).

Dishonest intention is a necessary ingredient Where the accused
was charged under Ss. 147 and 447, and the Magistrate considered the proper
remedy to be by civil suit and accordingly dismissed the criminal charge, the
Sessions Judge on being moved by the complainant directed the Magistrate to
commit the accused to the Sessions Court on the charge of abetting dacoity, the
Madras High Court held that all that was done by the accused was done under a
claim of right in good faith and accordingly set aside the order for their committal
made by the Sessions Judge (w). Where some Mahomedans were driving forty-two
heads of cattle along a public road, and the cattle were being driven to be sold to
some commissariat contractors, no doubt with the intention that they should

(o) Mayne ‘ Criminal Law, * 3rd Ed., p. 847.

(p) James Lapier , (1TO4) 1 Leach 320 : 2 East. 1\ C. 557.

(q) Moore's case, (1784) 1 Leach 335.

(r) Simons, (1773) 2 East. P. C. 712.

(s) Donnolly*s case, l Leach. 193 : 2 East. P. C. 713.

(t) 1 Hale P. C. 533.

(u) Heave, 2 East. P. <•. 735.

(v) George Mason, (1820) R. and R. 419.

(w) Ex parte Karke Nachier, 3 Mad. H? C. R. 254.

732

THE INDIAN PENAL CODE

[ CHAP. XVII

ultimately be slaughtered for commisariat purposes and thereupon some Hindus
drove the Mahomedans in charge of the cattle away and seized and carried away
the cattle, the Allahabad High Court held that the offence committed by the
Hindus was one of dacoity (x).

Risk-Note B — robbery— meaning of : — A Full Bench of the Allahabad
High Court (Walsh and Mukerji, J., dissenting) held : “ If goods are put on a train
at one particular station in a sealed wagon and subsequently at a later station they
are found missing from it, the evidence of the theft being provided only by the fact
that the seals are broken, the theft does not amount to ‘ robbery from a running
train ’ within the meaing of Risk-Note B ” (y).

391. When five or more persons conjointly commit or
Dacoi attempt to commit a robbery, or where the

whole number of persons conjointly commit-
ting or attempting to commit a robbery, and persons, present and
aiding such commission or attempt, amount to five or more, every
person so committing, attempting or aiding, is said to commit
dacoity.’

This section defines ‘ dacoity/ Robbery committed or attempted to be com-
mitted by five or more persons is dacoity.

The Authors of the Code observe : “ We have provided punishment of

exemplary severity for that atrocious crime which is designated in the Regulation
of Bengal and Madras by the name of dacoity. This name we have thought it con-
venient to retain for the purpose of denoting, not only actual gang-robbery, but the
attempting to rob when such an attempt is made or aided by a gang " (z).

For commentary see notes under Ss. 390 and 378.

for rob-

392. Whoever commits robbery shall be punished with
rigorous imprisonment for a term which
may extend to ten years, and shall also be
liable to fine f and, if the robbery be com-
mitted on the highway between sunset and sunrise, the imprison-
ment may be extended to fourteen years.

Punishment

bery.

This section provides punishment for simple robbery.

Procedure Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

The evidence on a prosecution for robbery will be : —

(1) proof of the same kind as would support a charge of theft or of extortion ;

(2) proof of the contemporaneous violence or putting in fear.

Violence should be proved " In the absence of violence it should be
proved that the extortion was by putting some person in fear of instant death, etc.
Threats of future injury would not be sufficient ” (a).

“ If the accused is charged with the aggravated offence of robbery on the
highway between sunset and sunrise, it will be necessary to give evidence of the

(x) Rambaran, (1803) 15 A. 299.

(y) Brindaban v. G. /. P. Railway Company, (1926) 24 A. L. J. 825 : A. I. R.
(1926) All. 369 : 96 1. C. 1039 (F. B.).

(i) NoteN.

(a) Morgan and Macpherson* ' Penal Code p. 353.

OF ROBBERY AND DACOITY

733

SEC. 393 ]

time and place of the robbery. Probably the word ‘ highway f here should
receive the widest signification that it will bear so as to include any road, street,
path, etc., in public use " (b).

P unishm ent s— For an offence under s. 390 it is not permissible to award
a sentence of fine only without imprisonment (c).

Joint trial : — A commits robbery on B and in doing so voluntarily causes hurt
to him. A may be separately charged with and convicted of offences under
Ss. 323, 392 and 394 of the Indian Penal Code (d).

Persons accused of different offences committed in the course of the same
transaction may be charged and tried together (e).

Robbery and dacoity : — An offence of robbery cannot be oonverted into
an offence of dacoity where it is not adequately shown that there were more than
three persons engaged in the robbery (f).

Where the evidence showed that there were six robbers and three were ac-
quitted, the conviction of the rest under s. 391 was altered into one under this
section (g).

Charge to Jury : — Where 8 persons were charged with dacoity and four were
acquitted, it is not necessary that the charge should specify that other persons
besides those acquitted took part in the dacoity or that they should be referred to
in the charge (h). The view held in Abbas Ali Saheb (i) that it was open to the Jury
to find (after the acquittal of one out of five) that the total number was five seems
to be the correct view.

Charge A charge under robbery cannot include housebreaking by night
(s. 458) which is a graver offence than robbery (j).

Form of charge s — I ( name and office of Magistrate , etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of , at ,

committed robbery of ( specify the property) which was the property

of XY then in his possession and which you robbed him of in street

(mention or specify the highway) at about between the hours of

(sunset and sunrise) and thereby committed an offence punishable under s. 392 of
the Indian Penal Code and within my cognizance (or the cognizance of the Court
of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

For commentary see s. 390.

393. Whoever attempts to commit robbery shall be punish-
ed with rigorous imprisonment for a term
robbery! pt to commit which may extend to seven years, and shall
also be liable to fine.

(b) Ibid, p. 353.

(c) Badri Prosad, (1922) 44 A. 538 : 20 A. L. J. 388 : 23 Cr. L. J. 274 : GG
I. C. 418 : A. I. R. (1922) All. 245.

(d) Illustration (m), s. 2 35 of the Code of Criminal Procedure.

(e) S. 239. Cl. (d). Criminal Procedure Code.

(f) Uda, (1916) P. W. R. No. 26 of 1915 : 16 Cr. L. J. 634 : 30 I. C. 458.

(g) Pidde Enumundugaru, (1916) M. W. N. 52 : 5 I. C. 797.

(h) Rashidaz Zaman, (1910) 16 C. W. N. 434 : 10 I. C. 684 : 12 Cr. L. J. 193.

(i) (1927) 53 M. L. J. 732 : (1927) M. W. N. 853 : A. I. R. (1928) Mad. 144 (1).

see Md. Ushan, (1929) 120 I. C. 490 : A. I. R. (1930) L. 263.

(j) NgaKaung Nyum, (1911) 1 U. B. R* 98 : 13 Cr. L. J. 429 : 14 I. C. 973.

734

THE INDIAN PENAL CODE

[CHAP. XVII

This section punishes attempt to commit robbery and as express provision
has been made by the Code for the punishment of such attempt by this section,
s. 511, infra t will not apply * to attempt to commit robbery/

“ A present intention to rob combined with an act in execution of ?uch inten-
tion which falls short of the offence intended, is an attempt to rob. The attempt
should be proved by some act which is a commencement of the execution of the
purpose, or which in the judgment of the Court sufficiently manifests the intention
of the accused. If the proof should show not merely an attempt to rob, but that the
offence of robbery has been committed, or if it is uncertain whether the offence is
robbery or only an attempt to rob, the accused may nevertheless be convicted under
this section ” (k).

Procedure Cognizable— Warrant— Not bailable — Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge : — Form of the charge is same as under s. 392 only substituting
‘ attempted to rob * for * committed robbery * and s. 393 for s. 392.

Preparation is not indictable under the Code but attempt is. See notes under
s. 511, infra, as to when ‘attempt * is punishable.

394. If any person, on committing or in attempting to commit
Voluntarily causing robbery, voluntarily causes hurt, such person,
hurt in committing rob- and any other person jointly concerned in
bery * committing or attempting to commit such

robbery, shall be punished with transportation for iife, or with
rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.

This section punishes voluntarily causing hurt in committing robbery. This
section is almost the same as s. 397 where at the time of committing robbery the
offender uses a deadly weapon or causes grievous hurt .

Scope s — The essence of a charge of dacoity or robbery is the animus
furandi (1).

Procedure Cognizable— Warrant-Mot bailable — Not compoundable—
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

“To support this charge there should be proof of the robbery or attempt,
and of the hurt ; that the hurt was caused voluntarily, that is not accidentally but
intentionally or knowingly, may fairly be presumed in the absence of any circum-
stances to shew that it was accidental ” (m).

On a charge for dacoity a conviction for hurt cannot be sustained (n).

Joint trial A commits robbery on B, and in doing so voluntarily causes
hurt to him. A may be separately charged with, and convicted of, offences under
Ss. 323, 392 and 394 of the Indian Penal Code (o).

Separate conviction under Ss. 392 and 394 is illegal:— As the offence
punishable under s. 394 necessarily includes the offence under s. 392 an accused
person who is convicted under both the sections can legally be punished only
under s. 394 (p), but in view of ill. (m) to s. 235, Cr. P. Code, Durgas case (p)
can no longer be treated as good law.

(k) Morgan and Macpherson ' Penal Code, ' p. 354.

(l) In re. Ponnia Rowtker , (1929) M. W. N. 185.

(in) Morgan and Macpherson, ' Penal Code, * p. 355.

(n) In re. Ponnia Rowthtf, (1929) M. W. N. 185.

(o) Illustration 235 of the Criminal Procedure Code.

SEC. 395 ]

OF ROBBERY AND DACOITY

735

Separate sentences under Ss, 394 and 397 based on the same set of facts have
been held to be illegal (q).

Sentence of whipping whether justified : — Before a sentence of whipping
in addition to imprisonment can be passed on a person, found guilty under this
section, there must be also a finding that he himself caused hurt while commit-
ting the robbery (r).

. Charge : — A charge under this section should state that the prisoner volun-
tarily caused hurt in the commission of robbery (s).

If the Magistrate was of opinion that the offence disclosed was under s. 397,
he was bound to commit to the Court of Session, the Bombay High Court held
that it is illegal to treat a grievous hurt as an ordinary hurt (t).

Offence under this section cannot be held to be a minor offence so far as
dacoity is concerned (u).

Form of charge s — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused ) as follows : —

That you, on or about the day of , at , committed

or attempted to commit robbery (or were jointly with X 9 Y, Z concerned in com-
mitting or attempting to commit robbery) of the property of AB, and that as you
(or X, Y, Z) voluntarily caused hurt to AB (or any other person), and that
you thereby committed an offence punishable under s. 394 of the Indian Penal
Code and within my cognizance (or the cognizance of the Court of Session or the
High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Such person or any other person jointly concerned, etc. " See Ss. 34,
37 and 1 14. These words would appear to include all persons concerned whether
as actors or as abettors, unless the word 4 jointly * confines the provisions to those
cases in which the offenders are all joint doers within s. 34 ” (v).

395. Whoever commits dacoity shall be punished with
„ . , , transportation for life, or with rigorous

dacoity. imprisonment tor a term which may extend

to ten years, and shall also be liable to fine.

Dacoity — s. 391.

This section punishes ordinary cases of dacoity as s. 392 punishes ordinary
cases of robbery. See commentary to Ss. 390 and 391.

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Joint trial ; — Persons accused of an offence which includes theft, extortion or
criminal misappropriation and person accused of receiving or retaining, or assisting
in the disposal of concealment of property possession of which is alleged to have
been transferred by any such offence committed by the first named* person, or of
abetment of or attempting to commit any such last named offences may be charged
and tried together (w).

(p) Durga, (1890) Rat. Unrep. Cr. C. 511.

(q) Mantrez, (1924) 20 Cr. L. J. 1350 : A. I. R. (1920) Lah. 47 (2).

(r) Po Thoung, (1927)«6 R. 48.

(s) (1865) 2 W. R. (Cr. L.) 6.

(t) Jobania, (1889) Rat. Unrep. Cr. C. 470.

(u) Virutnandi Thevan, (1927) 28 Cr. L. J. 1007 : 105 I. C. 831 : A. I. R. (1928)
Mad. 207.

(v) Morgan and Macpherson, * Penal Code, ' p. 3551 .. r .

(w) S. 239 (e) of the amended Code of Criminal Procedure of 1923.

736

THE INDIAN PENAL CODE

[CHAP. XVII

Now dacoity is robbery by 5 or more persons and robbery includes theft and
extortion so this cl. (e) to s. 239, Criminal Procedure Code, would apply to an
offence under this section.

Under cl. (/) to s. 239 of the amended Code of Criminal Procedure“persons
accused of offences under Ss. 411 and414of the Indian Penal Code or either of those
sections in respect of stolen property the possession of which has been transferred
by one offence may be jointly charged and tried together/’ But the Legislature
has omitted s. 412 which deals with receiving or retaining any stolen property M the
possession whereof he knows or has reason to believe to have been transferred by the
commission of dacoity/* So it follows that a person accused of an offence under
this section cannot be jointly tried with an accused charged under Ss. 441 and
414.

It has been held by the Allahabad High Court that a joint trial was permissible
where in the course of the same transaction the offence of dacoity and two other
offences of receiving property known to have been stolen in the commission of a
dacoity are alleged to have been committed (x).

Ss. 395 and 120~B : — Where it was sought to be proved by the prosecution
that some of the accused were closely and intimately associated with the approver
and that the object of that association during a period of several months prior to
the dacotjty in question had been the commission of thefts and other discreditable
acts, held, such evidence would not be relevant under s. 14 of the Evidence Act (y).

Essential ingredients of dacoity s — “ It will be borne in mind that this
offence as defined does not always involve robbery. The proofs shoukjjbe of a robbery
or attempt to rob by five or more persons who are either joint actbrs, or some of
whom actually commit the robbery, etc., while the others are abettors, being present
but not actually participating in the commission of robbery or in the attempt to
rob” (z).

Dacoity— less than five persons— if the conviction is valid Where
nine persons were tried by a Jury on a charge of dacoity and seven were acquitted,
the Allahabad High Court held that they could not lawfully convict two persons
of dacoity which implies the participation of five or more persons (a). Taking the
words of s. 391 in the most literal sense and strongly in favour of the Crown they
point to a robbery with violence by five or more persons (b).

Five persons charged of dacoity — one acquitted — effect : — Where three persons
(known and named) were charged along with two other unknown men and the
Jury acquitted one of the three and convicted the other two of dacoity, held , it was
quite open to the Jury, while holding that one of the accused who was supposed to
have been known to the witnesses had not been properly identified to find that the
total number was five. At the same time when they acquitted the said accused the
Judge should have asked them definitely whether they had considered the result of
acquittal and whether they still considered the result of acquittal and whether they
still found that the number of robbers was five (c). In this case retrial was not
directed, although there was the above misdirection, as the petitioners had been in
jail for several months which was considered to be a quite adequate punishment for

(x) Durga Prasad , (1922) 20 A. L. J. 981, where Balbhai Hargobind, (1904) 6
Bom. L. R. 517 was referred to.

(y) Wahiduddin, No. 1 (1929) 32 Bom. L. R. 324.

(z) Morgan and Macpherson, * Penal Code, ’ p. 3S5.

(a) Ikvamuddin, (1917) 39 A. 348 : 15 A. L. J. 205 : 18 Cr. L. J. 491 : 39 I. C.
331. See contra in Rashidazzatnan > (1910) 15 C. W. N. 434.

(b) Naramban, (1922) M. W. N. 320 : 15 L. W. 552 : 24 Cr. L. J. 209 ; 71 I. C.
877 : A. I. R. (1922) Mad. 195.

(c) Akbas Alt Sahib; (1927) 53 M. V. J. 732 : (1927) M. W. N 53 : . A. I. R-
(1928) Mad. 144 (1) : see Rashidazzatnan , (1911) 15 C. W, N. 434,

OF ROBBERY AND DACOITY

737

SEC. 396 ]

what appeared to be no more than a drunken brawl (d). Similarly in Muhammed
Asham’s case (e) it was held that the four accused were guilty under s. 396 when it
was fujly established that a dacoity was committed by five persons although at the
trial the fifth accused remained unidentified.

Evidence of dacoity ' These points should be remembered : (I) Identifica-
tion of the accused; (2) identification of the property ; (3) evidence against die
complicity or participation in the crime by individual accused.

Nature of evidence requisite : —In Madhoo Manjees case (0 the Sessions
Judge was directed to take evidence to show what was the conduct of the prose-
cution witnesses after the dacoity, whether they at once denounced the pri?on$rs,
what was the first report made to the Police, and by whom and what dacoits were
mentioned by name in those reports ; how, when and under what circumstances the
prisoners were arrested ; what clues led to the search of homes and other proceedings.

Identification of the accused : — Where complainant said that he followed
the dacoits in a dark night to a railway station and identified the accused on suspi-
cion that they were the men who had been at his village for dacoity, it was held that
the conviciton was bad as the identity of the accused was not established beyond
reasonable doubt (f 1 )* In dacoity cases evidence adduced as to the identification of
dacoits ought not to be accepted too readily, especially where the night is dark (g).

Where in the first report only two dacoits are alleged to have been ficogni zed
at the time, subsequent evidence that they were all identified cannot be relied upon
unless there is strong corroboration to support it (h).

It should be made clear exactly when and under what circumstances the pro-
secutors and witnesses denounced the persons whom they swear to have recognised.
In dacoity cases there must be evidence to show what was the conduct of the wit-
nesses after the dacoity, what were the first reports made to the police, and by whom
and what dacoits wer* mentioned by name in these reports ; how, when and under
what circumstances the prisoners were arrested ; what clues led to the search of
houses, etc. (i).

Identification in Court after failure at test indent ificat ion parade : — Such identi-
fication is useless, as the very fact of the accused persons being in custody is likely
to lead to his identification (j).

Identification of the property s — The evidence of an approver for whose
appearance at the trial there was not the slightest reason and the mere fact that
in the houses of each of the four prisoners only one article of the stolen property
was found, was held insufficient, where the best witnesses were not examined to
support a conviction on a charge of dacoity (k).

Merely being seen getting on board a boat with four persons, who have on their
own admission been convicted of belonging to a gang of dacoits, is not sufficient
evidence against those so seen (1).

(d) Ibid.

(e) (1929) 120 I. C. 490 : A. I. R. (1930) Lah. 203; Sahabut Shaikh, (1870) 13
W. R. (Cr.) 42.

(f) (1866) 6 W. R, (Cr.) 51.

(fl) Hijsra, 5 L. L. J. 82 : A. I. R. (1925) Lah. 161.

(g) Kallu, (1917) 18 Cr. L. J. 456 ; 39 I. C. 296 (Oudh) ; Irjan , (1927) 46 C. L. J.

241.

(h) Nurkhan, P. L. R. No. 93 of 1915 : P. W. R. No. 8 of 1915 : 16 Cr. L. J.

204 : 27 I. C. 764.

(i) Madho Manjee, (1866) 5 W. R. (Cr.) 51.

(j) Jabed Shikdar , (1931) 35 C. -W. N. 835.

(k) Ram Sagor, (1867) 8 W. R. (Cr„) 57, see Ramranjan, (1914) 42 C. 422 on

the duty of prosecution *to call witnesses. *

(l) Kamal Fakeer, (1872) 17 W. R. (Cr.^50.

53

738

THE INDIAN PENAL CODE

[ CH£P. XVII

*

Where the only evidence against an accused charged under this section is that
he has produced stolen property out of a place which is not in his possession,
held that evidence is not sufficient to support a conviction for theft or for receiving
stolen property, but it is evidence against the person producing it and it is material
corroboration of an accomplice who has deposed that the person joined him in the
commission of a dacoity or a burglary, or a theft (m).

Corroboration of approver Where some common things were found in the
search and some other things found claimed by the accused to be their own were not
mentioned in the first report and a gun and a sword were found which were proved
to belong to complainant but which were concealed because the complainant had
nd license, it was held that there was no sufficient corroboration of the approver’s
story (n). Where a person accused of dacoity makes incriminating statements about
himself before several prosecution witnesses and even produces some of the stolen
articles, held that it is not conclusive evidence of his guilt (o). Where an approver
stated that he was keeping watch when dacoity was being committed inside a house
and beyond the statement of the approver that he accompanied the other dacoits
at the time of commission of the dacoity, there was no evidence that he was there ;
neither the inmates of the house where the dacoity was said to have been committed
nor the near neighbours who arrived at the scene of the occurrence on hearing cries
did see him, Panckridge and M. C. Ghose, J.J., held that the Sessions Judge
should have ruled out the confession and there being no other evidence other than
that of the approver connecting the accused with the crime, acquitted all the
accused (p).

Circumstantial evidence— pointing out place where stolen property
is found : — Where the sole evidence against a person charged under this section
was that he had pointed out the place where some of the stolen property was
found, it was held that the evidence was insufficient for a conviction as it did not
exclude other theories compatible with the innocence of the accused (q).

Evidence against the complicity or participation in the crime of
individual accused: — The only satisfactory way of dealing with the evidence
and identification of accused in a dacoity case is to give at first a general outline
of the case, the dacoity, the course of the investigation and the arrest of the various
accused, then the case against and the case for each accused should be dealt with
in detail and a conclusion arrived at with regard to each individual (r).

The first essence of an offence under this section is that the dacoity is the
joint act of the persons concerned (s).

Association with dacoits Mere association with persons who are after-
wards proved to have participated in a dacoity may create a suspicion, but is not
proof of the fact that the person so associating took part in the dacoity (t),

No conviction for attempt in dacoity *As the definition of dacoity
(s. 391) includes an attempt to commit dacoity, s. 51 1 will not apply but the person
guilty of an attempt to commit dacoity will be punished under this section (u).

(m) Khusal Singh , (1923) 25 Cr. L. J. 234 : 76 I. C. 698.

(u) Suleman , (1922) 25 Cr. L. J. 252 : 76 I. C. 716 : A. I. R. (1923) Lah. 395.

(o) Fatta, P. L. R. No. 314 of 1913 : P. W. R. No. 31 of 1913 ; 14 Cr. L. J.

601 : 21 I. C. 473.

(p) Gholam Asphia, unreported (Cal.) Cr. appeal 584 of 1929 decided on 19. 1. 30.

(q) Surat Singh, 1 O. L. J. 74 : 15 Cr. L. J. 404 : ft I. C. 1004.

(r) Nga Mu, (1923) 2 Bur. L. J. 199 : 25 Cr. L. J. 205 : 76 I. C. 573 : A. T. R.
(1924) Rang. 67.

(s) Mathura Thakur , (1901) 6 C. W. N. 72.

(t) Salam , (1917) 14 N. L. R. 192: *19 Cr. L. J. 79: 43 1. C. 1111.

(u) Kone * (1867) 7 W. R, (Cr.) 48; Beni , (1900) 23 A. 78.

OF ROBBERY AND DACOITY

739

sec. 395.] «

Common object not to commit dacoity— Can there be conviction by
application of s. 34 or 149 : — To constitute the offence of dacoity it is necessary
to prove that 5 or more persons joined in a robbery. A conviction for dacoity
based either on a finding of oommon object not charged or an evidence which does
not prove the essential ingredients of the offence, cannot be sustained. To justify
a conviction for dacoity by the application of s. 34 or 149 it is necessary
to charge and prove that the unlawful assembly as a whole had the common in-
tention of committing dacoity or that each accused knew that dacoity was likely
to be committed in prosecution of the common object of the unlawful assembly,
and it has been further held that, where there was no count in the charge that
the common object stated was to commit mischief and cause hurt, no conviction
for dacoity by force of s. 34 or 149 was tenable (v). Where there is no
evidence that five or more persons combined together to rob the complainant,
with violence, and the evidence merely shows that three of the accused stood by
and encouraged three others who were making a sort of raid on the complainant's
property, and when the latter tried to prevent him from retaking the property,
it was held that there was no prima facie case to go to a Jury on a charge of
dacoity (w).

Presumption from recent possession : — When persons are found, within
six hours of the commission of a dacoity, with portions of the plundered property
in their possession the presumption of law is, that they are participators in the
dacoity, and not merely receivers (x). Where the prisoner was apprehended
eight days after the dacoity, with part of the plunder in his possession, held that
there was a good ground for charging him with the dacoity as with having received
or retained with guilty knowledge and he ought to be charged in the alternative (y).
The presumption referred to in Illustration (a) to s. 114, Evidence Act, 1872, is not
confined to charges of theft but extends to all charges, however penal, not ex-
cluding murder. The presumption applies to the case of a dacoity (z). Where
a person charged with dacoity is shown to have been in possession of part of the
stolen property soon after the dacoity, it may be presumed that he was one of the
dacoits or that he received the property knowing it to have been stolen at the
dacoity (a).

Abetment; — Knowing of a Resign to commit a dacoity, and voluntarily
concealing the existence of that design with the knowledge that such concealment
would facilitate the commission of dacoity does not amount to an abetment of
dacoity (b).

Charge 2— ' The charge must specify the dacoity (c). Aternative charges
under Ss. 395 and 457 are not illegal (d).

In Mehr Shaikh's case (e) where accused was charged under s. 395 but
convicted under Ss. 448 and 323 the verdict was set aside as what the learned
Judge said in summing up was not the prosecution case (F. I. R. mentioning

(v) In re. P.Koltoora Thevan, (1923) 25 Cr. L. J. 396 : 77 I* C. 444 : (1924)
M. W. N. 238.

(w) Naramban, (1922) M. W. N. 326 : 24 Cr. L. J. 269 : 71 1. C. 877 : A. I. R.
(1922) Mad. 195.

(x) Cassy Mul, (1865) 3 W. R. (Cr.) 10.

(y) Motee, (1866) 5 W. R. (Cr.) 66.

(z) Ram Samp Singh, (1929) 9 P. 606 ; Yatnin, 26 Cr. L. J. 145 : 83 I. C. 705

(Oudh) . •

(a) Ram Samp Singh, (1929) 9 P. 606, where Sami, (1890) 12 M. 426, was referred
to.

(b) Jhugroo, (1865) 4 W. R. (Cr.) 2.

(c) Manni Ghasi, (1912) M. W. N. 49: 13 I. C. 781.

(dV Bikram AH P%amanik, (1929) 50 C. L. J. 467,

(e) (1031) 35 C. W. N. 945,

740 THE INDIAN PENAL CODE [$HAP. XVI1

a case of dacoity or attempted dacoity), there were no charges under Ss. 448 and
323 and the accused had no notice of any such case.

The charge should run thus : —

I ( name and office of Magistrate , etc.) hereby charge you ( name of
accused ) as follows : —

That you, on or about the day of— , at ,

committed dacoity, an offence punishable und$ifH&. 395 of the Indian Penal Code
and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge (f).

Charge to the Jury In a case under this section where the evidence
of guilt of the accused rests upon discovery of stolen property from his possession
the proper course is to direct the Jury that the Jury arc entitled to take into con-
sideration the explanation offered by the accused of their possession. It is not
necessary that such claim by the accused must be proved (g).

The law requires the Judge to record only the heads of charge to the Jury but
this record should be sufficient to enable the High Court to ascertain what was
actually said to the Jury (h).

In Ram Sarup's case (i) the High Court refused to interfere with the verdict,
although the heads of the charge did not expressly state that the law was explained
to the jury, because it was satisfied from the charge as a whole, read with the verdict,
that the law had in fact been properly explained.

Lortwilliams, J., while pointing out the charge as defective in JabedSikdar s
case (j) as a little more than a rambling statement of the evidence as it came from
the mouths of the accused, acquitted the appellants as the evidence against the
accused practically consisted only of identification by some women of the
house who had never seen this before and who had only an opportunity of seeing
this by the light of torches during the dacoity and some of the women inmates were
unable to identify any of the dacoits at the test identification although they succeeded
in identifying them in Court.

The Calcutta High Court has held that at most, it is a matter of non-
direction on the part of a Sessions Judge whj> did not draw the attention of the
Jury to the argument of the defence that the approver’s evidence should
not be believed because he might have been tutored by the police to make a
statement which fitted in with the evidence of witnesses who had been previously
examined (k).

Where A was examined by the committing Magistrate as a confessing prisoner
and he stated that after the dacoity he was offered Rs. 100 which he took, it was held
to be a misdirection where the Sessions Judge treated this statement as a
confession that he committed the dacoity and directed that the Jury should take
this into consideration against co-accused (1).

In cases of dacoity the Jury must be distinctly instructed that unless they are
satisfied that there were five or more persons committing the robbery or that the
persons present and aiding in the commission of the robbery numbered five or more
persons, there could be no dacoity (m). See the case of Abbas Ali Saheb (n)

(f) Form No. XXVIII, (10) Schedule to the Criminal Procedure Code.

(g) Kabutulla , (1925) 42 C. L. J. 212. *

(b) Abdul Gaft * . (1922) 20 C. W. N. 997.

(i) Ram Samp Singh, (1929) 9 P. 606.

(j) Jabed Sikdar , (1931) 35 C. W. N. 835.

4k) Ibrahim, (1925) 42 C. L. X 496 (499).

(l) Mookakandi Maniagram , (1903) 1 Weir 416. •

(m) Bhoja, (1866) 6 W. It. (Cr.) 54.

(n) 53 M. L. J. 732: (1927) M. W. N. 853.

SEC. 396 ]

OF ROBBERY AND DACOITY

741

'noted at p. 728 under the caption * five persons charged , one acquitted — effect .* The
Judge should not merely read to the Jury the definition of dacoity, but he should
call the attention of the Jury to the different elements constituting the offence
and point out to the Jufif the evidence against each of the accused and the
circumstances which distinguish the cases of some of the accused from that of
the others (o). It was held in Mangan Das' s case (p) that it is a misdirection to
charge the Jury as follows ;;^The law bearing on the case has been placed
before you more than once in the addresses delivered by the learned pleaders on
both sides. I need not go into detail as to the law therefor.**

Where a Jury have before them a charge of dacoity, viz. f in cases where the
charge is as against named persons, the Jury often return a verdict acquitting some
of them and convicting the others and the number of those convicted falls below
five, it should be pointed out to the Jury what the effect of that verdict is (q).

Punishment : -A sentence of fine only is illegal in a case of dacoity (a).

As to Burma see the Burma Laws Act s. 4 (3) ( h ).

As to punishment for an offence under this section enquired into by a Council
of Cadets in a Punjab Frontier District in the North-West Province or in
Baluchistan, see s. 12 of the Frontier Crimes Regulation, 1901 (III of 1901) Punj.
and N. W. Code.

396. If any one of five or more persons, who are conjointly

Dacoity with nnmicr. committing dacoity, commits murder in so
committing dacoity, every one or those per-
sons shall be punished with death, or transportation for life, or
rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.

This section punishes dacoity with murder. The expression * conjointly
committing dacoity * shows that this section is not limited to the individual liability
of the actual murderer but visits the other persons aiding and abetting the murder
with the same punishment.

“ All present and aiding in the»dacoity whether they actually participate in the
commission of it, or are only members of the gang ready to act if required, must
share in the criminal liability for the murder committed by one or more. Any
person who could have been proved to have taken such part in the murder as would
make him an abettor of the crime may be prosecuted and punished under the
provisions concerning abetment. It matters not whether he was engaged in dacoity
or not. But this section and s. 394 reach cases in which such abetment cannot be
proved, or even may be disproved. But the murder must be in committing the
dacoity. If one of the gang should make use of this opportunity to gratify an old
grudge, and murder some person at the place where the dacoity is committed, the
guilt of this offence would not be imputed to all the others ” (r).*

Scope : — " It is quite clear that the charge under s. 302 is not a minor charge
to the charge under s. 396. The charge under s. 396 is a charge under which a
person who has not committed murder is liable to be held to commit murder, be-
cause he is a member of a gang of dacoits in the course of which somebody else
committed the murder " 9 ($). The first essence of an offence under this section would

(o) Mari Valayan, (1900) 30 M. 44, following Faizu Pramanih , (1898) 23 C.

711 . ’

(p) 29 C. 379, followed in Mari Valayan, (1906) 3D M. 44 (40).

(q) In re. Raman. Korv an, (1930) 54 M. 588,

(r) Morgan and Macpherson, ' Penal Code, ’ pp. 355-350.

(s) Per Rankin, C. J., in Madhu Sivtf’h Kaivarta, (1931) 36 C. W. N. ,880 (881).

742

THE INDIAN PENAL CODE

[CHAP. XVII

seem to be that the dacoity is the joint act of the persons concerned ; and the
second essence of the offence is that the murder is committed in the course of the
commission of the dacoity in question (t).

This section does not create a separate and distinct offence. It provides a
particular punishment for those who conjointly commit dacoity where murder is
committed in so committing the dacoity (u).

Procedure : — Cognizable —Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

The prosecution is to prove (1) that the dacoity is the joint act of the
persons concerned ; (2) that the murder is committed in the course of the dacoity
in question (v).

The burden of proving an offence under this section is on the prosecution.
Where the interval between the dacoity and the finding of the stolen goods is about
six weeks and the direct evidence by which it was sought to connect the accused
had failed, the accused should not be convicted of dacoity and the knowledge that
the goods found were stolen by dacoits should not be imputed to them (w).

Evidence of Approver s— In the absence of reliable corroboration as to the
identity of the accused no reliance can be placed on the approver’s statement incrim-
inating them especially as he exonerates himself, in part contradicted himself
and in part his story being grossly improbable (x).

Charge to the Jury : — Where the Sessions Judge in his charge to the Jury
did not draw their attention to the distinction between the suggestions put in
cross-examination which were supported by evidence and those that were not as also
to the direct evidence rebutting these suggestions and the judge did not point out
to the Jury, that the witnesses who accused the police were on their own shewing
untruthful as they had contradicted their statements, the Calcutta High Court held
that the Judge misdirected the Jury but as the misdirection had not occasioned a
failure of justice the appeal was dismissed and the verdict of acquittal was upheld fy).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the ; day of , at ,

committed dacoity, and that in the commission of dacoity, murder was committed
by one of your number and that you thereby committed an offence punishable
under s. 396 of the Indian Penal Code, and within the cognizance of the Court of
Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge (z).

Charge under this section if may be split up Where the accused has.
been charged only under this section and such charge cannot, on a finding that as
many as five persons were not concerned in the robbery, be split up into two sub-
stantive charges under Ss. 302 and 392 and the accused convicted thereon, although
the charge undei*this section may, in a misconceived way, contain an allegation that
particular persons were murdered by particular accused (a).

Charge if it fails against some does not necessarily fail altogether

Where 8 persons were each of them separately charged with dacoity, but the Jury

(t) Mathura Thakur, (1901) 0 C. W. N. 72 (78), t

(u) Umrao Singh, (1894) 10 A. 437.

(v) Mathura Thakur , (1901) 8 C. W. N. 72.

(w) Arshed Molla, (1919) 29 *C, L. J. 325.

• (x) Kailash Chandra* Rishi, (1928) 48 C. L. J. 481.

(y) Supdt. and Remembrancer ; Legal Affairs v. Shyam Sundar Bhumji , (1921)
20 C. W. N. 558.

(z) This form of the charge was sot out in Mathirulappan , (1877) 1 Weir 447 .

(a) Madhu Singh Kaibaria , (1931) 36 C. W. N. 880.

SEC. 397 ]

OF ROBBERY AND DACOITY

743

acquitted four of them and found the other four guilty, the evidence before them
being that there were more than five persons concerned in the offence even if the
four acquitted were not there, the Calcutta High Court held that the mere fact that
the evidence was not sufficient to convict four of those actually charged would not
in any way affect the question of the number of persons engaged (b). See the cases
of Abbas Ali Saheb (b 1 ) and in re. Raman Konarvan (b 2 ) noted under s. 395, supra.

Where death was caused by blows given on the right side which caused the
rupture of liver and the fracture of four ribs and the accused left the house with a
lot of jewellery and out of 7 persons sent up for trial under s. 396 five were acquitted,
the Lahore High Court held that it had not been established that the accused
intended to kill the deceased or to cause him such injury as he knew to be likely
to cause death and in the circumstances he could not be convicted under s. 3%
but the offence committed by him was one falling under s. 460 (c).

Punishment : — As to Burma, see the Burma Laws Act (1898), s. 4 (3) (b) and
Sch. II.

As to the Frontier District, see the Frontier Crimes Regulation (III of 1901),
Ss. 6, 11 (3) and 12(2).

‘conjointly committing dacoity, commits murder in so committing
dacoity 9 : — Where in the commission of a dacoity a murder is committed, it
matters not, whether the particular dacoit charged under this section was inside
the house or outside the house, so long only as the murder was committed in the
commission of that dacoity (d).

During the escape : — Where a gang of persons making preparation to
commit dacoity, was discovered in the village limits and was pursued by a body of
villagers, but while the dacoits were yielding before the advance of the villagers,
two accused who were members of the gang were seized and arrested by the villagers
and that at or about that critical moment one of the dacoits at large fired his gun and
killed one of the villagers, and the accused were charged under s. 302 read with
Ss. 149 and 34, the Jury returned a verdict of not-guilty — upon reference by the
Sessions Judge, the Bombay High Court held that the accused were not guilty of
murder as the separation of the two accused from the gang was prior to the murder
and that neither s. 149 or s. 34 applied (e).

A murder committed in the compound of a house raided by dacoits when
they were making good their escape is murder committed in the commission of
dacoity within the purview of this section (f).

397. If, at the time of committing robbery or dacoity,

Robbery or dacoity, ^ offender uses any deadly weapon, or
with attempt to cause causes grievous hurt to any person, or
death or gnevous hurt, ^e^pts to cause death or grievous hurt

to any person, the imprisonment with which such pffender shall
be punished shall not be less than seven years.

This section is almost the same as s. 394. This section applies where at
the time of committing dacoity the offender causes grievous hurt, whereas s. 394

(b) Rashidazzaman, (1911) 16 C. W. N. 434 : 12 Cr. L. J. 193 : 10 I. C. (584.

(bl) (1927) M. W. N. 853.

(b2) (1939) 54 M. 588.

(c) Nu* Dad, 1 Lah. L. J. 262.

(d) Teja, (1895) 17 A. 80, followed iu Girya Laxmappa, (1904) 4 Bom. L. R.

248.

‘ (e) ’ Hari Bijal, (1915) 17 Bom. L. R. 900.

(f) Karim Baksh, (1923) 25 Cr, L. J. 819 : 70 I. C. 1039 : A. I. R. (1923) Lah.
329 (1).

*744 THE INDIAN PENAL CODE [ CHAP, XVII

contemplates simple hurt caused by the offender at the time of committing or
attempting to commit robbery.

" This section does not apply to attempts to rob which are accompanied by
aggravating circumstances *' (g).

Scope s — This section does not provide for any punishment for dacoity but
merely regulates the punishment already provided for dacoity, by fixing a minimum
term of imprisonment when its commission has been attended with certain aggra-
vating circumstances (h).

This section does not constitute a separate offence, it merely provides for a
minimum sentence in cases where any offender, in the course of committing a
dacoity causes grievous hurt (i).

Before s. 397 can be made applicable it is necessary that each of the accused
is proved to have been the offender doing the acts mentioned herein. When s. 397
does not refer to any substantive offence, s. 34 of the Indian Penal Code would be
inapplicable. For the purposes of this section all the persons participating in the
dacoity would not be held responsible for the acts of others (j).

Procedure Cognizable— Warrant -Not bailable — Not compoundable —
Triable by Court of Session.

A prisoner who after having committed dacoity attended with murder, ab-
sconded to Bhootan Dooars, under the British Government, he was arrested and
was convicted under this section and sentenced to transportation for life (k).

Where in a case of robbery attended with death there was no intention to
cause death or such bodily injury as was likely to cause death, the conviction was
altered from one under s. 396 to voluntarily causing grievous hurt in committing
robbery (1).

Charge : — As this section does not create a substantive offence the charge
should be for the substantive offence of robbery or dacoity under s. 392 or s. 395
read with s. 397.

The charge should run as follows : — •

Charge I ( name and office of Magistrate , etc} hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at f

committed robbery (or dacoity) and that at the time of committing the said robbery

(or dacoity) you used a deadly weapon to wit , [(mention the deadly

weapon) (or caused grievous hurt to XY t or attempted to cause death or grievous
hurt to XY )] and thereby committed an offence punishable under s. 397 of the Indian
Penal Code and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge. ?

Attempt ;—Where several persons were found endeavouring to break into a
house and some of them being armed, used violence but only in attempting to
escape being arrested, it was held that they could not properly be convicted under
this section read with s 511 (m).

(g) Morgan and Macpherson, ' Penal Code, * p. 350. * 1

(h) 7 W. R. {Cr. L.) 2.

(i) Wadhewa Singh , (1923) 26 Cr. L. J. 259 : 76 I, C. 819 : A. I. R. (1923) Lah.

389 ' '

(j) Dulli, (1924) 47 A. 69.

(k) Dwarka Aheer, (1866) St W, R. (Cr.) 49.

(l) Chokor Haree (1866) 6 W. R. (CiO 16.

(m) Beni, 23 A. 78. * '

*EC. 398]

OF ROBBERY AND DACOITY

745

Punishment: — As to punishment in the Frontier District, see s. 12 of the
Frontier Crimes Regulation, 1901 (III of 1901) Punj. and N. W. Code.

S. 397 provides minimum punishment for the substantive offence created by
Ss. 392 and 395. There can be no punishment under this section only. The
highest punishment under this section can be inflicted only on the offender who
actually causes death or grievous hurt. S. 34 cannot be applied to other offenders
to make them liable (n).

‘ uses any deadly weapon * : — If a person levels his revolver against another
in order to overawe him, he * uses * it as a deadly weapon. It is not necessary that
he must fire it (o). The Chief Court of Lower Burma has held that the words
* uses a deadly weapon ’ includes the carrying of a weapon for overawing the
person robbed (p).

4 deadly weapon* A lathi cannot be described to be a deadly weapon
within the meaning of this section (q). The Bombay High Court has held that
although a hatchet is a dangerous weapon, a blow with it is not an act ordinarily
capable of causing death in the natural and ordinary course of events ; on the
contrary, whether a blow is or is not capable of causing such a result must depend
on the particular nature of the blow inflicted (r).

R Struck S three blows with a lathi and one blow fractured the bones of the
left fore-arm, another fractured a bone in the right hand while the third fractured
both bones of the left leg ; in the case of the third injury gangrene supervened
and S died in consequence ; the Allahabad High,Court held R was either guilty
under s. 304 or 325 (s).

There can be no conviction of a robber under this section simply on the ground
that one of his associates carried a deadly weapon (t).

4 such offender * The words 4 such offender * refer to the offender who
uses a deadly weapon or causes grievous hurt, to any person and does not refer
to those who jointly commit robbery or dacoity with him (u).

398 . If, at the time of. attempting to commit robbery or
dacoity, the offender is armed with any
robbery or dacoity when deadly weapon, the imprisonment with which
armed with deadly suc h offender shall be punished shall not be

weapon. a . i _

less than seven years.

This section punishes attempt to commit robbery or dacoity when armed
with deadly weapons.

(n) Po Myaing, 10 L. B. R. 269 : 13 Bur. L. T. 158 : 22 Cr. L. J. 593 : 62 1. C.

865. •

(o) Chandra Nath, (1931) 7 Luck. 543.

(p) Nga I , (1911) 6 L. B. R. 41 : 5 Bur. L. J. 9 : 13 Cr. L. J. 267 : 14 I. C.

651.

(q) Ladkhan, (1912) P. L. R. No. 117 of 1912 : P. W. R. Nu. 19 of 1912 : 13

Cr. L.J. 182: 13 I. C. 998. 4

(r) Martuvithoba , (1913) 15 Bom. L. R. 991.

(s) Rama Singh , (1928)* 42 A. 302.

(t) Po Win , (1913) 7 L. B. R. 20 : 6 Bur. L. T. 88 : 14 Cr. L. J. 432 : 20 I. C.

416.

(u) Ilahia, (19 22) 24 Cr. L. J. 405 : 72 I. C. 517 : A. I. R. (1924) Lah. 409 ; Po

Win (1913) 7 L. B. R 20; Senta, (1899) A. W. N. 186, followed in Nageswar, (1906)
28 A. 404; Arunachala TJiewan, (1911) 22 M. L. J. 186 and AH Mirza, (1923) 51 C.
206 { contra MahabirTewari, (1889) 21 A. 263, followed in Chatar Singh , (1901) P, R.
No. 16 of 1901. •

746

THE INDIAN PENAL CODE

[CHAP. XVII

Scope : — This section does not create a substantive offence. It merely
provides that if any member of a gang of dacoits is armed with a lethal weapon
during the commission of a dacoity, such member is to suffer a minimum punish-
ment of 7 years (v). S. 398 merely regulates the measure of punishment when
certain facts are found to exist in the commission of the substantive offence of
robbery. Ss. 34 and 114 have no application in the construction of s. 398 (w).

Abetment : — A man cannot be convicted of abetment of an offence under this
section (x).

Procedure : — Cognizable— Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Charge : — Form same as set out under s. 392 substituting * at the time of
attempting to commit the said robbery * for * at the time of committing the said
robbery.’

Punishment : — As to the Frontier District, see the Frontier Crimes Regulation
(III of 1901) Ss. 6, 71 (3) (d) and 12 (2).

• deadly weapon * : — See commentary under the preceding section.

Offender : — This word can refer only to the person who is proved to have
been armed with any deadly weapon and not to any other person who in combination
with such person may have committed robbery (y).

399. Whoever makes any preparation for committing
dacoity, shall be punished with rigorous
«>m^t n Ia^o e ity ratlont0 imprisonment for a term which may extend
to ten years, and shall also be liable to fine.

This is one of the three sections, the other two being Ss. 122 and 126 which
punish a mere preparation to commit an offence.

This section is confined to a preparation made for committing dacoity. It has
no reference to any other offence againpt property short of dacoity, such as house-
breaking or robbery (z).

Procedure Cognizable — Warrant — Npt bailable — Not compoundable —
Triable by Court of Session.

Onus on prosecution to prove intent (a).

Ss. 399 and 402— Acquittal under former section if operates as ac-
quittal under the latter : — Where a charge of two separate offences laid in an
alternative form under Ss. 399 and 402 was treated not alternately but as additional,
acquittal under the former section does not involve an acquittal under the latter and
the conviction thereunder is not vitiated by repugnancy, but even if it were, the
High Court can alter the finding of acquittal into one of conviction maintaining the
sentence (b).

Charge I (name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows

(v) Bhaktawar Singh , A. I. R. (1923) Lah. 60 ; Nga Pu , (1920) 5 Bur. L. J.

103 : 27 Cr. L. J. 1285. *

(w) Nabibux v. Karimbux, (1927) 52 B. 168: 30 Boq*. L. R. 88, following Ali

Mirza , (1923) 51 C. 205. . *

(x) Nga Pu, (1926) 5 Bur. L. J. 103 : 27 Cr. L. J. 1285 : A. I. R. (1920) R. 207.

(y) Nabibux v. Karimbux ; (1927) 52 B. 108 : 30 Bom. L. R. 88.

\z) Shera, (1868) P. R. No. 18 of 1868.

(a) Hari Bijal , 17 Bom. L. R. 906 : 16 Cr. L. J. 745: 31 I. C. 345. .

* (b) Romesh Chandra Banerjee , (1913) 41 C, 350 : 18 C. W. N. 498 : 15 Cr. L. J.

385 : 23 I. C. 985. «

SEC. 400 ]

OF ROBBERY AND DACOITY

747

That you, on or about the day of , at ,

made preparation by ( specify the act) for committing dacoity and thereby

committed an act punishable under s 399 of the Indian Penal Code, and within
the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried on the said charge.

Distinction between Ss. 399 and 402 : — S. 402 applies to a mere assembling
without further preparation. S. 399 applies to a case where such preparation is
proved in addition. But a person may not be guilty of dacoity though guilty of
preparation and not guilty of preparation yet guilty of an assembly (c).

4 makes any preparation 9 1 — “ The words point to acts done prior to a
commencement of the execution of the guilty purpose, and it may be before any
particular dacoity is planned. It will be enough if there is a general design to commit
dacoity or to engage in an expedition for this purpose though the plans of the dacoits
are not yet matured. The ‘ making preparation * should be shown to the satis-
faction of the Court by some acts — such as the collection of men, arms, provisions,
etc., which coupled with other circumstances, plainly manifest the intention to
commit dacoity M (d).

To establish an offence under this section it is not necessary that the persons
shown to be making the preparation should be five or more in number. But it is
necessary to prove that the raid for which they were making preparation was to be
committed by five or more persons. Otherwise it would not be dacoity but merely
robbery and mere preparation for committing robbery ; unless it ends in an actual
attempt is not punishable by law (e).

Mere proposals do not come under either this section or s. 402.

Preparation (or committing dacoity— mere assemblage is not suffi-
cient : — To constitute preparation for committing dacoity the commissicn of overt
acts is not necessary. It is sufficient if some act to get ready for dacoity is done.
A mere assemblage to commit dacoity is not such preparation but possession of
instrument for housebreaking and of arms for offence and defence, and actual visit
to the scene of contemplated dacoity show such preparation. The formation
and such preparation by each member of the gang need not be proved (f), but
where the members of the gang had taken into their possession instrument* of
housebreaking and arms for the purpose of offence and defence and has actually
proceeded to a place near the scene of the contemplated dacoity, it was held that
they were guilty of an offence under this section (g).

400. Whoever, at any time after the passing of this Act,
Punishment for be- shall belong to a gang of persons associated
longing to gang of for the purpose of habitually committing
dacolts ' dacoity, shall be punished with transporta-

tion for life, or .with rigorous imprisonment for a* term which
may extend to ten years, and shall also be liable to fine.

This section punishes those who belong to a gang of persons associated for the
purpose of habitually committing dacoity.

(c) Romesk Chandra Banerjee, (1913) 41 C. 350 : 18 C. W. N. 498 : 15 Cr. L. J.
285 : 23 I. C. 985.

(d) Morgan and Macpherson, * Penal Code, * p. 357.

(e) Khawja Hassan, 24 Cr. L. J. 130: 71 I. C. 300 (Pesh.).

(f) Kamun t (1915) 0 IJ. R. (Cr.) 1910 : P. W. R. No. 37 of; 1010 : 17 Cr. L. J. 280 :

34 I. C. 1000.

(g) Karim Bux, (1927) 9 L. 55 0 (560). •

748 THE INDIAN PENAL CODE [ CHAP. XVII

Previous law : — This section is analogous to the Dacoity Act ( XXIV of
1843), s. 1 of which runs as follows

" Whoever shall be proved to have belonged to any gang of dacoits shall be
punished with transportation for life, or with imprisonment for any less term with
hard labour."

This section practically re-enacts s. 1 of Act XXIV of 1843 and the Law Com-
missioners with regard to this remarked : “ The intention was to apply to dacoity
the law in force for the prevention of Thugee, but it differs in the punishment as
transportation for life is not authorised in the case of Thugee.

If this very stringent law be continued and it may be presumed that the
grounds upon which it was recently deemed to be necessary are such as will justify
its continuance for the present, though it may be hoped that eventually it may be
mitigated we would suggest with reference particularly to the observations of Mr.
Thomas as to the constitution of these gangs, that some definition be given of what
is meant by a person belonging to a gang of dacoits. The preamble to Act XXIV
of 1843 shews that the phrase is intended to designate not a person who ordinarily
lives by honest labour and who on some occasion has been tempted to join himself
to a gang and to take a subordinate part in a robbery committed by such gang in the
manner described by Mr. Thomas, but to designate one who has habitually
associated with a gang of professional dacoits* systematically employed in carrying
on their lawless pursuits in different parts of the country accompanying them in
their expeditions, and actively participating in their operations M (h).

Gist of offence under this section : — Phear, J., remarked : M This section
is one of a very special character and entirely the creation of the statute M (i).

Straight, J., held : “ This section was intended by the legislature to provide
for the punishment of those who belong to a gang of persons who make it their
business to commit dacoity, and it is not essential for the purpose of conviction that
the evidence should show the same degree of particularity as to the commission of
each individual dacoity as is required to support a simple and substantive charge of
that crime. It is sufficient to establish that the person accused belongs to a gang
whose business is the habitual commission, of dacoity or, in other words, that he
Was associated with others for the habitual pursuit of that offence ” (j).

Procedure:— Cognizable-Warrant— Not bailable Not compoundable —

Triable by Court of Session.

The prosecution must prove that the accused belonged to a gang which gang
was associated for the purpose of habitually committing dacoity and need not prove
what exact part was played by each member of the assembly (k).

The Madras High Court has held that the prosecution is bound to prove that
the accused belonged to a gang which was consciously associated for the specific purpose
of habitually committing dacoity . The associating and the purpose of the association
may be proved by direct evidence, such as, evidence that the accused, or the accused
and others, met and determined to join together for the purpose of habitually com-
mitting dacoity ; — — . In the absence of direct evidence the associating and

the purpose of the association may be established by proof of facta from which they
may be reasonably inferred (1), The Bombay High Court has held that in order to
prove the accused guilty of an offence under this sectit n \wo points have to be

(h) First Report, s. 539.

(i) Mooktaram, (1876) -23 W. R. (Cr.) 18.

(j) Kure t (1886) W. N. 65 (66).

(k) Mooktaram Sirdar , (1875) 23 W. R. (Cr.) 18; Kure t (1886) A. Vtf. N. *85;
Nabokumar Patnaik, (1897) 1 C. W. N. 146, following Kartick Chun dr a Das t 14 C. 710,

(l) Bonigiri Pottigadu , (1908) 3 f M. 179 (181).

SEC. 400 ]

OF ROBBERY AND DACOITY

749

proved (I) that a gang of dacoits existed and (2) that the accused belonged to
that gang (m).

Such evidence is admissible to establish habit and not bad character. Asso-
ciation is the gist of the offence punishable under this section (n).

Proof of previous conviction Previous commission of dacoity *by the
accused is relevant under s. 14 of the Indian Evidence Act (o), but the Calcutta
High Court in the case of Kascmali (p) held that in a trial for an offence punishable
under this section the evidence of commission of an offence or that the accused
were bound down under s. 110, Cr. P Code, is not admissible. In Ledu Mollas
case (q), however, Kasem Alts case (p) was distinguished on the ground that there
the decision proceeded on the footing that evidence of previous conviction could
not be used for the purpose of proving bad character. The Bombay High Court
in the case of Moliram Hari (r) has held that former judgment is not admissible to
prove habit but it is admissible and useful only as shewing that the accused is a
person of criminal tendencies to theft who may be a member of the alleged gang.

Joint trial : — It is an irregularity though not an illegality to try persons
charged under this section with those charged under s. 396 or s. 397 (s).

Sentence Liability of members of a gang : — In awarding sentences the Court
should not consider whether particular offenders were concerned in only one or
more of the dacoities committed by the gang but whether it was clearly established
that they did in fact join a recognised gang is an important fact (s).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name of
accused) as follows : —

That you on or about the day of , at ,

belonged to a gang of persons associated for the purpose of habitually committing
dacoity, and thereby committed an offence punishable under s. 400 of the Indian
Penal Code, and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried on the said charge.

* belong * : — The term ‘ belong * implies something more than the idea of
casual association ; it involves the notion of continuity and indicates a more or less
intimate connection with a body of persons extending over a period of time suffi-
ciently long to warrant the inference that the person affected has identified himself
with a band the common purpose of which is the habitual commission of dacoity ft).
The term ‘ belong ’ in this section implies something more than the idea of casual
association, it involves the notice of continuity and indicates a more or less intimate
connection with a body of persons extending over a period of time sufficiently long
to warrant the inference that the person affected has identified himself with the gang.
Where evidence shows that accused did not join the gang more than in one dacoity

(m) Vithu Rangaji, (1890) 1 Bom. L. R. 156 (157).

(n) S. 14 of the Indian Evidence Act, Explanation 2 ; Valia, (1910) P. L. R.

No. 18 of 1910 : 6 I. C. 492 ; Kasem AH, (1919) 47 C. 154 ; 31 C. L. J. 192, following
Man It ur a Past, (1899) 27 C. 139; Haji Sher Mamud, (1921) 46 B. 958 : 25 Bom.

L. R. 214.

(o) Naba Kiimay Patnaik, (1896) 1 C. W. N. 146 (150) referred to in Bhona,

(1911) 38 C. 408 : 15 C. W. N. 461 ; 12 Cr. L. J. 97 : 9 I. C. 555 ; Kader Sunday ,

(1911) 16 C. W. N. 69, followed in Ledu Molla, (1925) 52 C. 595 : 42 C. L. J. 501.

(p) (1919) 47 C. 154 ; $1 C. L. J. 192, following Mankura Pasi , (1899) 27 C. 130.

(q) (1925) 52 C. 595 : 42 C. L. J. 501.

(r) (1924) 26 Bom. L. R. 1223, following Tuhavam Malhari, (1912) 14 Bom. E. R.
373 (375) and Bhona, (1911) 38 C. 408.

(s) ' Ghulam Mustafa, (1911) P. L. R. No. 68 of 1911 ; P.W. R. No. 45 of 1911 :
12 Cr. L. J. 260 : 10 I. C. 833.

(t) Him Lai , (1910) 13 O. C. 243 : 7 J. C. 1012.

750

THE INDIAN PENAL CODE

[CHAP. XVII

he cannot be convicted under this section (u). The word ‘ belong # necessarily ex-
cludes persons who merely assist and shelter the dacoits. It is essential to prove
that the accused belonged to a gang (v).

Any person who knowing of the existence of a gang joins that gang for the
purpose of committing even one theft is guilty under this section (w).

Associated for the purpose of habitually committing dacoity : — In a

case under this section, the prosecution is bound to prove that the accused be-
longed to a gang which was consciously associated for the purpose of habitually
committing dacoity (x), and not the actual commission or attempted commission
of dacoities (y).

Where the other evidence in a case under this section establishes association
for the purpose of habitually committing theft, evidence of previous conviction
whether for offences against property or for bad livelihood is admissible as evidence
of habit and for this purpose convictions of bad livelihood would be mere cogent
than those for isolated theft (z). Association is the gist of an offence under this
section, i.e , association for the pursuit of dacoity. It must be established for the
purpose of conviction that the accused belonged to gang whose business is the
habitual commission of dacoity. The special conspiracy must be proved (a), but
assertions that offences under Ss. 400 and 401 had been committed could not be
regarded as compliance with the letter and spirit of the law fb).

“ Under the English law the agreement or combination to do an unlawful thing
or to do a lawful thing by unlawful means amounts in itself to a criminal offence.
The Indian Penal Code follows the English law of conspiracy only in a few excep-
tional cases which are made punishable under Ss. 31 1 (Thug), 400 (belonging to a
gang of dacoits), 401 (belonging to a gang of thieves), 402 (being a member of an
assembly of dacoits) and 121 -A (conspiracy to wage war). In these cases whether
any act is done or not or offence committed in furtherance of the conspiracy, the
conspiracy is punishable and he will also be punishable separately for every offence
committed in furtherance of the conspiracy. In all other cases, conspiracy is only
one species of ‘ abetment of an offence * as that expression is defined and explained
in s. 108 and stands on the same footing as abetment by intentional aiding " (c).

401. Whoever, at any time after the passing of this Act,
Punishment /or be- shall belong to any wandering or other gang
longing to gang of of persons associated for the purpose of
th,eves habitually committing theft or robbery, and

not being a gang of thugs or dacoits, shall be punished with
rigorous imprisonment for a term which may extend to seven
years, and shall also be liable to fine.

Theft — s. 378. Dacoit — s. 391. Robbery — s. 390.

(u) Bhabuti, (1921) 19 A. L. J. 725 : 22 Cr. L. J. 663 : 63 I. C. 455 following
Iliralal, (1910) 13 O. C. 243 : 7 I. C. 1012.

(v) Vithu Rangaji, (1899) l 13om. L. R. 156.

(w) Wasawa Singh, (1910) P. L. R. No. 110 : P. W. R. No. 47 of 1916 (Cr.) of

1916 : 35 L C. 1003 : 17 Cr. L. J. 443.

(x) Bongiri Pottigadu, (1908) 32 M. 179.

(y) Suresh Chandra Banerjee , (1926) 47 C. L. J. 47i : A. I. R. (1928) Cal. 309*

(z) Bhona, (1911) 38 C. 408: 15 C. W. N. 461 doubting Mankura Past, (1899)

27 C. 139.

(a) Kader Sunder , (1911) : 16 C. W. N. 69 : 13 Cr. L. J. 39 : 13 I. C. 279,

followed in Udu Molla, (1925) 52 C. 598 : 42 C. L. J. 501.

(b) Nagendra N-ath Chakravarti , (1923) 38 C. L. Ji 388 (395).

(c) Per Bhashram Ayyanger in Tirumal Reddy , (1901) 24 M. 523 (546).

SEC. 401 ]

OF ROBBERY AND DACOITY

751

This section extends the principle of the last section to a gang of persons
associated for the purpose of habitually committing theft or robbery.

Object : — “ S. 401 no doubt has excellent objects and uses but it ought not to
be resorted to when the persons sought to be brought within its four corners, might
have been made responsible for distinct and individual offences ; nor is it intended
to affect them unless an association for the habitual commission of theft or robbery

is clearly made out I must add that a resort to the

provisions of s. 401 by the police and for the purpose of sweeping into a wide net
large number of persons whom they suspect, or who give them trouble is not to be
encouraged ; and speaking for myself I shall very closely scrutinize any cases of
the kind that come before me ” (d). The same view has been adopted in the
Punjab fe).

Scope : — The gist of the offence under this section is association for the pur-
pose of habitually committing theft or robbery (f). To justify a conviction under
this section, it is not sufficient to prove that certain persons have been convicted
of a theft and that the other persons charged with them have lived or associated with
them. It is necessary to prove, not merely association, but that the gang of persons
have been associated for the purpose of habitually committing theft or robbery ;
and that habit must be proved by an aggregate of acts (g).

Procedure - Cognizable — Warrant — Not bailable — Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Essential ingredients of the offence : — To sustain a conviction on a
charge under this section the prosecution is to prove —

(1) that there existed a gang of persons;

(2) that, those persons were associated for the purpose of committing theft

or robbery ;

(3) that theft or robbery was to be committed habitually ;

(4) that the accused was a member of such gang.

In the absence of direct evidence the associating and the purpose of the
association may be established by proof of acts from which this may reasonably
be inferred (h).

Evidence r — It is not necessary to prove that each individual member of the
gang has habitually committed theft or any particular act of theft ; once it is proved
that a gang was formed for the purpose of habitually committing theft, all the
persons who hereafter join the gang in committing one or more thefts come within
the purview of this section (i).

Where the evidence against the accused was that several thefts and several
articles which had been stolen from different houses were discovered on the inform-
ation supplied by him, that he was suspected in one of those theft cases and that
he promised to restore certain stolen articles, it was held that such evidence did not

(d) Jahangira , (1888) A. W. N. 16.

(e) Peera, (1869) P. R. No. 37 of 1869; Ishar Das , (1912) P. L. R. No. 258 of
1912 : P. W. R. 36 of 1912 (Cr.) : 17 1. C. 543 ; Wasawa Singh, (1916) P. L. R. No. 110
of 1916: 35 I. C. 1003.

(f) Kasem Ali, (1919) 47 C. 154 : 31 C. L. J. 192 : 21 Cr. L. J. 386 : 55 I. C.

994, following in re. Shriram Venkatasami. (1870) 6 M. II. C. R. 120 and Mankura
Pasi, (1899) 27 C. 139. »

(g) Savaldas, (1888) Rat. Unrep. Cr. C. 418.

(h) Per Matisagar, J., in Pit Buksh , (1923) 24 Cr. L. J. 703 : 73 I. C. 815 : A. I. R.
(1923) Lah. 327; Waswa Singh, (1911) P. W. R. No. 47 of 1916 (Cr.) : P. L. R.
No. 110 of 1916 : 17 Cr. L. J. 443 ; 35 I. C. 1003 ; Beja, (1913) P. L. R. No. 22 3 of
1915 : P. R. No. 13 of 1914 (Cr.) 16 Cr. L. J. 33 : 26 I. C. 625.

(i) Darya Singh , A. I. R. (1923) Lah. 666.

752 THE INDIAN PENAL CODE [ CHAP. XVII

prove that he was a member of a gang of habitual thieves the very existence of which
had not been proved (j)

Habitual offenders : — To sustain a conviction under this section it is
necessary to prove that the persons accused were associated with others who were
all inspired with the common intention and purpose specified in this section, namely,
habitual commission of thefts (k). For the purpose of establishing an offence under
this section, it must be clearly established either by direct evidence or by facts from
which the inference may be legally drawn that the members of the gang have
combined or come together for the purpose of habitually committing theft or
robbery (1).

Where the question is, as it is under this section, whether a party of accused
persons constituted a gang of persons associated for the purpose of habitual theft,
evidence that each individual of that party is a convicted thief is relevant evidence
for the purposes of that question (m).

Association for the purposes of habitually committing theft ^ Evi-
dence that the accused often met together at different place. 0 before or after the
commission of offences, and have been seen on various occasions car/ying away
stolen articles or seen together under circumstances that suggested their complicity
in thefts and robberies and their association for the purpose of habitually com-
mitting such offences has been held sufficient to support a conviction under this
section (n).

The association of the accused with a gang of suspicious persons not proved
to have been suspected or proved guilty of theft or robbery does not render him
guilty of the offence under this section and the fact that he was once bound over
under s. 110, C.r. P. Code, does not affect the question of guilt or innocence (o).

Previous conviction is admissible : — Previous conviction of some of the
accused for offences of theft, housebreaking and receiving or concealing stolen
property prior and subsequent to the period when the nucleus of the gang of which
the accused became members was for the first time formed, is admissible as prov-
ing habit (p). The Calcutta High Court has held that the evidence of a previous
conviction for an offence under the Indian Penal Code, or evidence to show that
the accused had been previously bound down under s. 1 18 of the Criminal Pro-
cedure Code is inadmissible fq). The sanrfe High Court has recently held that
such evidence is admissible (r).

S. 494 of the Criminal Procedure Code Duval, J., held that an ap-
prover after his discharge under s. 494, Criminal Procedure Code, is a person
competent to be a witness (s).

fj) /afar Alt. A. I. R. (1025) Lah. 004.

(k) Bcja, (1913) P. L. K. No. 223 of 1915 : P. R. No. 13 of 1914 : If5 Cr. L. J.
33 : 26 I. C. 625.

(l) Ajita, (1912) 9 A. L. J. 565 : 12 Cr L. J. 204 : 10 I. C 23 ; Mankura Pasi,

(1899) 27 C. 139; N aba Kumar Patnaik, (1897) J C. W. N. 146; Dwaraha Bania,
(1899) 3 C. W. 3T. cccxxxviii ; lswar Das, (1912) P. W. R. No. 36 of 1912 : lladayata,
(1915) P. R. No. 3 of 1915; Wasawa Singh, (1916) P. L. R. No. 110 : 35 I. C. 1003.

(m) Tukaram Malhari, (1912) 14 Born. L. R. 373 : 13 Cr. L. J. 539 : 15 I. C.

811.

(n) Kasem Alt, (1919) 47 C. 154 . 31 C. L. J. 192; 21 Cr. L. J. 386.

(o) Ishar Das, P. L. R. No. 258 of 1912 : P. W. R. No. 36 of 1912 ; 13 Cr. L. J.
799 * 17 I C 543

‘(p) Hidavata, (1914) P. L. R. No. 191 of 1915 : P. R.tNo. 3 of 1916 : 16 Cr. L. J. *

300 : 28 I. C. 524, following Naba Kumar Patnaik , (1897) 1 C. W. N. 147 see also

Kasem Alt, (1919) 47 C. 164 (160).

(q) Kasem AH, (1919) 47 C. 164 (160), following Mankura Pasi, (1899) 27 C.

137. *

(r) Ledu Malta, (1926) 62 C. 696: 42. C. L. J. 601 following Bhona, >(1911) 38
C. 408: 15 C. W. N. 461.

(s) Kaspn AH, (1919) 47 C. 154 (162).

SEC. 402 ]

OF ROBBERY AND DACOITY

753

Charge I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the • day of , at * # belonged to

a (wandering) gang of persons associated for the purpose of habitually committing
theft (or robbery) and that you thereby committed an offence punishable under
s. 401 of the Indian Penal Code, and within my cognizance (or the cognizance
of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

402. Whoever, at any time after the passing of this Act,
Assembling for pur- shall be one of five or more persons assem-
pose of committing bled for the purpose of committing dacoity,
dacoity. shall k e p Un j s b e d with rigorous imprison-

ment for a term which may extend to seven years, and shall also
be liable to fine.

Procedure Cognizable — Warrant— -Not bailable— Not compoundable —
Triable by Court of Session.

The prosecution need only prove that the accused are members of a gang which
had in fact assembled for the purpose of committing dacoity and need not prove
what exact part was played by each member of the assembly (t).

Charge I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of at , were one

of five (or more) persons assembled for the purpose of committing dacoity and
that you thereby committed dacoity, and that you thereby committed an offence
punishable under s. 402 of the Indian Penal Code and within the cognizance of
the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

* assembled for the purpose of committing dacoity * “ In a popular
sense an assembly to commit dacoijy may be a preparation for it. But a mere
assembly without further preparation is not a ‘ preparation * within the meaning
of s. 390. For if it were, s. 402 would be redundant. This section applies to the

_£ LI! '..I r -f A

preparation yet gunry or an asseniDiy \i j. n mere is evidence to snew
that the assembly of persons was for the purpose of committing dacoity, it would
follow that others assembled with them were, where it was shown that they were
aware of the purpose of the assembly, assembled for that purpose (u).

Where several persons were arrested at 1 1 p.m. heavily armed with guns
and swords concealed under their clothes and none of them had *any license to
carry arms, held that the assembly of the accused under the circumstances was
of a nature to arouse suspicion and the object for which they had assembled
being a fact specially within their knowledge, the burden of proving the contrary
would, under the provisions of s. 106 of the Indian Evidence Act rest upon the
accused (v).

(t) Harmun . (1915) P. W. R. No. 37 of 1916 : P. R. No. 6 of 1916 : 17 Cr. L. J.
280 : 34 I. C. 1000.

(ti) Per Woodroffe J. in Ramesh Chandra Banerjee , (1913) 41 C. 360 (361).

(u) .Kendra Kumar, (1867) 7 W. R. (Cr.) 61.

(v) Bholu, (1900) 23 A. 124.

54 .

754

THE INDIAN PENAL CODE

[CHAP. XVII

Where 28 persons were found together of which seven had fire-arms, ammu-
nition and housebreaking implements concealed in their beddings, and out of them
three were previous convicts and a few more had been convicted of the dacoity at
another man’s house, ten of them had in their possession clothes and jewellery and
no fewer than twenty-five were residents of different villages, the Court held that
the assembly was for the purpose of committing dacoity and the accused were
guilty under this section (w).

Of Criminal Misappropriation of Property.

403. Whoever dishonestly misappropriates or converts
to his own use any moveable property, shall
priationo7property. pr ° be punished with imprisonment of either
description for a term which may extend
to two years, or with fine, or with both.

Illustrations.

(a) A takes property belonging to Z out of Z’s possession in good faith, believing,
at the time when he takes it, that the property belongs to himself. A is not guilty
of theft ; but if A. after discovering his mistake, dishonestly appropriates the property
to his own use, he is guilty of an offence under this section.

(b) A , being on friendly terms with Z, goes into Z’s library in Z’s absence, and
takes away a book without Z’s express consent. Here, if A was under the impression
that he had Z's implied consent to take the book for the purpose of reading it, A has
not committed theft. But, if A afterwards sells the book for his own benefit, he is
guilty of an offence under this section.

(c) A and B being joint owners of a horse, A takes the horse out of B’s possession,
intending to use it. Here, as A has a right to use the horse, he does not dishonestly
misappropriate it. But, if A sells the horse and appropriates the whole proceeds
to his own use, he is guilty of an offence under this section.

Explanation i. — A dishonest misappropriation for a time
only is a misappropriation within the meaning of this section.

Illustration.

A finds a Government promissory note be’onging to Z, bearing a blank endorse*
ment. A, knowing that the note belongs to pledges it with a banker as a security
for a loan, intending at a future time to restore it to Z. A has committed an offence
under this section.

Explanation 2. — A person who finds property not in the
possession of any other person, and takes such property for the
purpose of protecting it for, or of restoring it to, the owner, does
not take or misappropriate it dishonestly, and is not guilty of an
offence ; but he is guilty of the offence above defined, if he ap-
propriates it to his own use, when he knows or has the means of
discovering "the owner, or before he has used reasonable means
to discover and give notice to the owner and has kept the property
a reasonable time to enable the owner to claim it.

What are reasonable means or what is a reasonable time in
such a case, is a question of fact. «

It is not necessary that the finder should know who is the
owner of the property, or that any particular person is the owner

(w) Kartnun, (1916) P. W. R. No. 37 of 1910: ’P, R, No. 6 of 1918; 17
Cr, L. f. 280 : 34 I. C. 1000. *

SEC. 403 ]

OF CRIMINAL MISAPPROPRIATION

765

of it : it is sufficient if, at the time of appropriating it, he does
not believe it to be his own property, or in good faith believes
that the real owner cannot be found.

Illustrations.

(a) A finds a rupee on the high-road, not knowing to whom the rupee belongs.
A picks up the rupee. Here A has not committed the offence defined in this section.

(b) A finds a letter on the road, containing a bank-note. From the direction
and contents of the letter he learns to whom the note belongs. He appropriates the
note. lie is guilty of an offence under this section.

(e) A finds a cheque payable to bearer. He can form no conjecture as to the
person who has lost the cheque. But the name of the person, who has drawn the
cheque, appears. A knows that this person can direct him to the person in whose
favour the cheque was drawn. A appropriates the cheque without attempting to
discover the owner. He is guilty of an offence under this section.

(d) A sees Z drop his purse with money in it. A picks up the purse, with the
intention of restoring it to Z. but afterwards appropriates it to his own use. A has
committed an offence under this section.

(e) A finds a purse with money, not knowing to whom it belongs ; he after-
wards discovers that it belongs to Z t and appropriates it to his own use. A is guilty
of an offence under this section.

(/) A finds a valuable ring, not knowing to whom it belongs. A sells it
immediately without attempting to discover the owner. A is guilty of an offence
under this section.

Criminal misappropriation is the act of dishonestly misappropriating or con-
verting to one’s exclusive use any moveable property, even temporarily. This
offence is distinguished from 4 theft * and ‘ cheating ’ in that here the possession of
the moveable property may be perfectly lawful — it is the subsequent change of
intention, i.e., dishonest misappropriation or conversions to exclusive use that
constitutes the offence.

Distinction between theft, criminal breach of trust, criminal mis*
appropriation and cheating In 4 theft ’ the original taking is without honesty
and without the consent of the owner and in 4 criminal breach of trust ’ it is with
both. In obtaining property by 4 cheating * the taking is dishonest but with the
consent of the owner, and in 4 criminal misappropriation * it is honest but without
the consent of the owner (x).

Ss. 403 and 411 : — Where a person took possession of a bullock which had
strayed, but there was no evidence that it was stolen property, and he dishonestly
retained it, held , he could be convicted under this section but not under s. 41 1 (y).

Essentials of the offence s— The chief element for a conviction under this
section is the dishonest appropriation of the property or conversion ft) one’s own use
and in the absence of any overt act on the part of the accused no inference of dishonest
motive can be imputed to him singly by the retention of the property (z).

Criminal misappropriation takes place when the possession has been inno-
cently come by, but where, by a subsequent change of intention, or from the
knowledge of some new fftet with which the party was not pieviously acquainted,

(x) Narasimha Das Marwari, (1927) 29 Cr. L. J. 86: 106 I. C. 678: A. I. R.
(1929) Nag. 113.

(y) .Phulchand Dube, m (1929) 52 A. 200.

(z) Ram Bais Rai , }l918) 19 Cr. U J. 943 (P.) : 47 I. C. 667, following

Muhammada, 10 W. R. (Cr.) 23, •

756

THE INDIAN PENAL CODE

[CHAP. XVII

retaining becomes wrongful and fraudulent (a). Ordinarily mere retention of
money will not suffice to constitute the offence under this section (b).

Where one of the reversionary heirs to the estate of a mortgagor sold some
bricks of the mortgaged house which had tumbled down and appropriated the
amount and the mortgagee accused him of criminal misappropriation and it was
found that the act of the mortgagor was really to affect the mortgagee’s interest, it
was held that there was no dishonest appropriation within the meaning of the
section (c).

Procedure s— Not cognizable — Warrant — Bailable — Compoundable when
permission is given by the Court before which the prosecution is pending (d) — Triable
by any Magistrate.

Joint trial : — Now under the amended Code of Criminal Procedure of 1923,
persons accused of an offence which includes theft, extortion, or criminal mis-
appropriation and persons accused of receiving or retaining or assisting in the dis-
posal or concealment of property possession of which is alleged to have been trans-
ferred by any such offence committed by the first named persons, or of abetment
of or attempting to commit any such last named offence can be jointly tried (e).
If a person entrusts a sum of money to more than one person and those persons in
collusion commit criminal breach of trust or dishonestly misappropriate the
amount, surely one would expect that the Legislature would have used very clear
and explicit language if it intended that in such a case those persons ought not to be
tried together. The transaction is one and the same and under s. 239 of the Code
of Criminal Procedure they can be jointly tried (f). Jackson, J., in an earlier deci-
sion of the Calcutta High Court held : “ I would point out for the future guidance
of the Magisterial authorities that the misappropriation of each separate item of
money with which a person is entrusted is a separate offence, and the facts con-
nected with it should form the subject of a separate enquiry, inasmuch as it generally
has to be supported by separate evidence The duty of the com-

mitting officer in such a case is to select certain distinct items, and to frame his
charge upon those items ” (g).

Where the accused was charged under s. 406 and was acquitted, the Allahabad
High Court set aside the order of acquittal* and convicted the accused of criminal
misappropriation as it was found in that case that the complainant agreed to
receive money which the accused charged with criminal misappropriation promised
to pay in three days and upon that view the Magistrate illegally acquitted the
accused (h).

Proof of offence : — Maule, J., observed : “ Where a man is found in pos-
session of a horse six or seven months after its loss and there is no other evidence
against him but that of possession, he ought not to be called to account for it ” (i).

Where a man is found in possession of a camel about seven months after the
animal had strayed away and there is no other evidence of possession the Punjab
Chief Court following the observation of Maule, J., quoted above, held that
the mere fact that the defence had not accounted for possession to the satis fac-

(a) Bhagiram A bar \ (1888) 15 C. 400,

(b) Lala Reoji Mahala, (1928) 30 Bom. L. R. 624: A. I. R. (1928) Bom. 205.

(c) Bhubon Mohan Bannerjee v. Tansuk Roy Seracfli, (1901) 6 C. W. N. 34.

(d) These words were substituted for *' Not -compoundable ° by Act XVIII
of 1923.

(e) S. 239, cl. (e). Criminal Procedure Code.

(f) Per Abdur Rahim, J., in Appadmri Iyer, (1915) 32 I. C. (M). 158 (159).

(g) Chetter, (1871) 15 W. R. (Cr.) 5.

(h) N unht Baku , (1909) 6 A. L. J. 758 : 3 I. C. 908.

(i) Cooper , 3 C, and K. 318, *

SEC. 403 ]

OF CRIMINAL MISAPPROPRIATION

757

tionof the Court did not raise the presumption of ‘guilty intention’ which is a
sine qua non to a conviction under this secton (j).

Application of s. 75 : — The Punjab Chief Court held that s. 75 of the Indian
Penal Code did not apply to a case where a person with previous conviction under
Chapter XVII of the Code is found guilty of an offence under s. 408 and as such
the appellant was not liable to enhanced punishment (k).

Place of trial : — It has been held by the High Court of Patna that under this
section, the offence is complete the moment the accused receives or retains the
money with a dishonest motive of appropriating or converting it to his own use.
When the accused received the money at Barh which was to be made over to his
master at Manseeganj within the jurisdiction of the Patna City Magistrate, it was
held that the offence was complete at Barh which was outside the jurisdiction of
the said Magistrate (1).

For the application of s. 179 of the Code of Criminal Procedure it is essen-
tial that the offence should depend on an act done and on a consequence which
has ensued. But loss to one person though a normal result of an act of misappropria-
tion by another is not an essential ingredient of the offence of criminal misappropria~
tion. Where it appeared that money was received in Madras and the conversion
of the property to the use of the accused took place there but that loss was caused
to the complainant at Krishnagor, the Calcutta High Court held that the Krishna-
gor Court had no jurisdiction to try the offence (m).

The offence of criminal misappropriation or of criminal breach of trust
may be inquired into or tried by a Court within the local limits of whose
jurisdiction any part of the property which is the subject of the offence was re-
ceived or retained by the accused person, or the offence was committed (n). On
a charge of criminal misappropriation it is sufficient for the prosecution to establish
that some of the money mentioned in the charge has been misappropriated
by the accused even though it may be uncertain what is the exact amount
misappropriated (o). Byramjts case (ml) was followed in Virayak Bhatkhandes
case (p).

Complaint by one partner against another is maintainable v — The

Calcutta High Court by a Full Bencji decision has held that a partner who dis-
honestly misappropriated or converted to his own use or dishonestly used or dis-
posed of any of the partnership property which he was entrusted with, or had
dominion over, was guilty of criminal misappropriation under s. 408 (q).

Charge: — When the accused is charged with criminal breach of trust or
dishonest misappropriation of money, it shall be sufficient to specify the gross
sum in respect of which the offence is alleged to have been committed, and the

(i) Mongyah Shah, (1915) P. W. R. No. 41 of 1915 : P. L. R. No. 62 of 1916 :
17 Cr. L. J. 86: 32 I. C. 660.

(k) Chandaria, (1911) P. L. R. No. 235 of 1911 : P. W. R. No. 36 of 1911 : 12

Cr. L. J. 439: 11 I. C. 623. •

(l) Gowkaran Lai v. Sarju Saw, (1920) : 1 P. L. T. 200 : 21 Cr. L. J. 519 : 56

I. C. 775 : A. I. R. (1921) Pat. 31.

(m) K . Sinha Chalam, (1916) 44 C. 912 : 21 C. W. N. 573 (576), following Ram-
bilas , (1914) M. W. N. 894 ; Shinhachalam* s case followed in Gitnanda Dhone v. Lola
Santiprokash Nanley, 29 C. W. N. 435 : 41 C. L. f. 80 ; Gnnanda’s case dissented
from in Puscal v. Rajkishore , (1930) 35 C. W. N. 320 and In re J ivandas S awe hand ,
32 Bom. L. R. 1195 (F > B.).

(n) S. 181 (2) of the Code of Criminal Procedure.

(o) Byramji Jamsethji Chaewalle, (1927) 52 B. 280 : 30 Bom. L. R. 325 explaining
Khirode Kumar Mukherjee, (1924) 29 C. W. N. 54.

(p) (1927) 30 Bom. L. R. 1530 : 52 B. 403.

(q) •Mrigendro Lai Chatterjee , (1874) 21 W. R. (Cr.) 59 F. B. followed in Bhud-

harmal Marwari v. Ramchandra Marwari, (1920) 1 Pat. L. T. 127 : 21 Cr. L. J. 338:
65 I. C. 674. *

758

THE INDIAN PENAL CODE

[CHAP. XVII

dates between which the offence is alleged to have been committed, without specify-
ing particular items or exact dates, and the charge so framed shall be deemed to
be a charge of one offence within the meaning of s. 234 :

Provided that the time included between the first and last of such dates shall
not exceed one year (r).

Where the accused was committed for trial in the Court of Sessions on three
charges of criminal misappropriation to which before the Court of Sessions a
charge under s. 210 was added, the Calcutta High Court held that the additional
charge was not an act forming one transaction and as such there was a misjoinder
of charges necessitating retrial (s).

The Calcutta High Court has held in an earlier decision that the charge should
specify the person to whom the property belonged (t).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at ,

dishonestly misappropriated (or converted to your own use) certain moveable

property, to wit belonging to XY and thereby committed an offence

punishable under s. 403 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

1 dishonestly misappropriates * s— The verb * to appropriate * in connection
with ‘whoever dishonestly misappropriates * means setting apart for, or assigning
to particular person or use ; and to ‘ misappropriate * no doubt means to set apart
for or assign to the wrong person or a wrong use, and this act must be done dis-
honestly (u).

Where the accused is interested in the property jointly with others, he is not
necessarily guilty of a criminal act if he takes possession of it and disposes of it (vj.
Where a letter which was delivered to the complafiiant was thrown away by him
and thereafter the accused picked up the said lettef and attempted to file the same
in a case then pending between the complainant and his wife for judicial separa-
tion in order to strengthen the wife’s case, f the Allahabad High Court held that
the accused could not be com icted of criminal misappropriation or conversion
to the use of the accused which is an essential ingredient for an offence under
this section (w).

Husband’s liability for the misappropriation of the wife:— The

Allahabad High Court in a civil revision case has held that the husband is not
liable for the sums misappropriated by his wife in spite of his having allowed her
to take up service during the course of which she commits misappropriation (x).

Break down of marriage negotiations— -Bona fide intention to marry —
Refusal to return presents : — Where there is a bona fide intention on the part of
the accused to give his two daughters in marriage, one to the complainant^ son
and the other to his brother-in-law and that this intention was frustrated by an un-
fortunate disagreement of the terms of the dowry, the Calcutta High Court held that
it was doubtful whether the accused committed criminal misappropriation in refusing
to return the presents but made it clear that a general proposition of law, viz.,

(r) S. 222 (2), Code of Criminal Procedure. e

(s) Rajendra Nath Roy, (1917) 22 C. VV. N. 696 : 27 C. L. J. 311 : 19 Cr. L. J.

898:47 I.C.64.

S Parbutty Charan, (1870) 14 W. R. (Cr.) 13.

) Sohan Lai, (1916) 13 A. L. J. 1131 (1136) : 16 Cr. L. J. 795 : 31 I. C. 651.
(v) Parbutty Charan Chakrabutty, (1870) 14 W. R. *13 (14).

(w) Harris . (1917) 40 A. 119 : IB L. J. 12 : 19 Cr. L. J. 174 : 43 I. C. 590.
(x) C. Sjmpson v. Mrs. E. Bachman , (1814) 13 A. L. J. 55: 27 I. C. 622.

SEC. 403 ]

OF CRIMINAL MISAPPROPRIATION

750

whenever marriage negotiations bfeak down the relatives of the lady have a right
to retain presents was not laid down in the circumstances of the case before them (y).

Provision for civil liability no bar to criminal liability Where
attached property is entrusted to a custodian, the mere existence in the supurdnama
of a stipulation that on failure to produce the property he will be liable to pay a
stated sum as price does not necessarily absolve him from criminal liability for
misappropriation (z).

1 converts to his own use * s— The Calcutta High Court has held that loss
to one person, though a normal result of an act of misappropriation by another, is
not an essential ingredient of the offence of criminal misappropriation. The offence
is complete if the conversion is done with the intention of causing wrongful gain
to the offender irrespective of any loss which may ensue to any other person (a).

This section is in no way restricted to appropriating property to one’s own
use. If a trustee repudiates the trust and asserts that he holds the property
on behalf of a person other than the one who entrusted him with it, he has
misappropriated the property just as much as he would have been said to
misappropriate it if he had been putting forward his own claims to it (b).

Where a servant indicted for stealing bank-notes the property of her master,
in his dwelling-house set up as her defence that she found them in the passage, and
not knowing to whom they belonged, kept them to see if they were advertised.
Park, J., held that she ought to have inquired of her master whether they were his
or not, and that not having done so, but having taken them away from the house,
she was guilty of stealing them fc).

Intention must be dishonest ' The Madras High Court held that without
a finding of dishonest intention the offence under this section cannot be made out (d).

Where a person made an opening in the wall of his own house, broke open the
box which contained the jewels and carried them off making the removal appear to
have been the act of thieves from the outside and was charged with criminal mis-
appropriation, the Calcutta H&h Court held that the accused could not be con-
victed under this section (e). Where the accused found a gold mohur lying on the
ground and sold immediately without making any attempt to discover the owner,
the Bombay High Court held that in fhe absence of information as to the circum-
stances under which the coin was lost, it was not improbable that the property was
abandoned and that the accused could not be held guilty under this section (f).
Where the prosecutrix and another K brought hides to a place for sale and the
accused purchased the hides brought by K and the accused alleging a former debt
due from K refused to pay the price to the prosecutrix, it was held that the
accused did not commit ' dishonest misappropriation * under this section (g).

English law : — “ If a man finds goods that have been actually lost, or are
reasonably supposed by him to have been lost, and appropriates them, with intent

(y) NasirKkan Mistri v. Fyaz Hossain, (19 22) 24 Cr. L. J. 348 : 72 I. C. 348 :
A. I. R. (1922) C. 57.

(z) Inder Singh , (1925) 48 A. 288 : 24 A. L. J. 270 : 27 Cr. L. J. 297 : 92 I. C.
585 : A. I. R. (1920) All. 302.

(a) K. Simhachallam v. Ratijianta Laha, (1916) 44 C. 912 : 21 C. W. N. 573
(676).

(b) Inder Singh , (1925) 48 A. 288 : 24 A. L. J. 270 : 27 Cr. L. J. 297 : 92 I. C.
685 : A. I. R. (1926) All. 302.

(c) R. v. Kerr , (1837) 8 C. and P. 176.

(d) Dwarka Doss v. Narasinhalu Naidu , (1922) 44 M. L. J. 128 : A. I. R. (1923)
Mad. 364.

(e) Thewa Ram , (1882) 10 C. L. R. 187.

S Sita, (1893) 18 B. 212.

Boystum Mooches , (1872) 17 W. It. (Cr.) 11.

760

THE INDIAN PENAL CODE

[ CHAP. XVII

to take the entire dominion over them, really believing when he takes them that the
owner cannot be found, it is no? larceny. But if he takes them with the like intent,
though lost, or reasonably supposed to be lost, but reasonably believing that the
owner can be found, it is larceny ” (h).

The law with regard to the finder of lost property does not apply to the case of
property of a passenger accidentally left in a railway carriage and found there by a
servant of the Company ; and such servant is guilty of larceny if, instead of taking,
he appropriated it to his own use (i). The same view has been adopted in
India (j).

Claim of right : — An employee of a firm who retains money in his hands
after collecting a bill which he was authorised to collect, because money is due to
him as wages, is guilty of criminal misappropriation (k).

Where a person made a hole in the wall of his own house and broke open a box
which contained jewels and carried them off in good faith believing at the time that
he was dealing with his own property, it was held that he could not be convicted
of an offence under this section (1).

Property must have an owner : — There can be no dishonest misappro-
priation of a thing which is res null i us .

In an English case the question for determination was whether the paper and
stamps of the notes of county bankers which had been paid off but which might have
been re-issued were property, Groosc, J., held that to the extent of the price of paper,
the printing and the stamps, they were valuable property belonging to the prosecutors
and the accused were held guilty (m).

A bull dedicated by a Hindu in accordance with Hindu religious usage is not
property which can be the subject of criminal misappropriation (n). A bull
dedicated and set at large at the Sraddha of a Hindu in accordance with religious
usage is not * moveable property * within the meaning of Ss. 378 and 403, or ‘ pro-
perty within the meaning of s. 425 and cpuld not be the subject of theft, criminal
misappropriation or mischief (o). i v

Where the accused sold oome rice con4emned by the Health Officer of the
Corporation with the consent of the Port Commissioners which was entrusted to
him by the Superintendent of the Health Department for destruction, the Calcutta
High Court held that the accused committed no offence under the Code (p).
This case was followed by the same High Court in a case where the accused a
servant of a company, received from his employers some bags of waste paper with
an order to take them to the company’s yard at Garden Reach and there to bum
and destroy the papers (q).

Where the accused found two logs of wood drifting in a river during a high
flood and took possession pf them and the accused admitted that he took no steps
to find out the pwner and the Magistrate convicted the accused of criminal mis-
appropriation, the Madras High Court held that the fact that the wood lay unused
and exposed in front of the house negatived dishonest intention and set aside the

(h) Per Parke, B., in William Thurburn, (1844) L. J. (M. C.) 140.

(i) Pierce, (1852) 6 Cox. 117. '

(j) Sita, (1803) 18 B. 212; Ckodapa , (1868) Rat. Unrep. Cr. C. 8.

(k) Bissessur hoy, (1869) 11 W. R. (Cr.) 51.

(l) Thewa Pam, (1882) 10 C. L. R. 187.

(m) Clark's case, 2 Leach, 1036.

S Bandhu, (1885) 8 A. 51 ; Nihal, (1887) 9 A. 349.

Pamesh Chandra Sanyal, (1890) 17 C. 852,

(p) Wilkinson, (1898) 2 C. W. N. 216.

(q) Preonath Chaudhury, (1902) 29 O: 489 (490),

sec. 403 ]

OF CRIMINAL MISAPPROPRIATION

761

conviction (r). Where the accused finding a gold mohur on an open plain, sold it
the next day to a shop for the full value, and appropriated the sale-proceeds, held,
it was unsafe to affirm the conviction, for the circumstances were not sufficiently
elucidated to make it reasonably certain that the coin when found was the property
of any one, and, unless it could correctly be described as property, neither explana-
tion 2 nor any other part of s. 403 would apply to it (s). In Harus case (t) it was
doubted whether a letter addressed to one person retained by another could be
regarded as ‘ moveable property * within the meaning of s. 22, supra.

* any moveable property * : — There cannot be misappropriation of immove-
able property. Moveable property has been defined in s. 22, supra .

Joint family property : — A managing member of a joint Hindu family cannot
be convicted of criminal misappropriation until accounts have been taken or the
shares ascertained (u). Where the accused is interested in the property jointly
with others, held , he is not necessarily guilty of a criminal act if he takes possession
cf it and disposes of it (v).

Explanation 1 : — A dishonest misappropriation for a time only is a mis-
appropriation within the meaning of this section.

Where the accused received money from the head of the village for the purpose
of remitting it to the Treasury but omitted to send money to the Treasury and
was convicted by the Magistrate but the Sessions Judge acquitted him, the High
Court of Madras held that the conviction was right but the Judges were precluded
under s. 439 of the Criminal Procedure Code from setting aside acquittal (w).
Where a branch post-master trading also as shop-keeper ordered a consignment of
flour in hir own name and a value-payable envelope containing the railway receipt
for the consignment of flour having arrived, he extracted the railway receipt and
took delivery and 6 days after paid the price of the goods into the pcst-office and
entered and daily repeated in the post-office books as explanation of non-delivery
the words * on account of the absence of the addressee ," he was acquitted of the
charge under s. 52 of the Post-Office Act. On appeal by the Crown it was held that
he was clearly guilty of an offence under s. 52 of the Post-Office Act (VI of 1898),
and it was further held that the offence though a technical one did amount to
criminal misappropriation within the meaning of this section (x).

The Nagpur Judicial Commissioner's Court has held that a dishonest mis-
appropriation for a time only is a misappropriation (y).

Explanation 2 : — This is almost in accordance with the English law enun-
ciated by Parke, B., in William Thurborns case (z).

Illustration ( b ) is in the same line as William Thurborns case where Parke,
B., said : “ Suppose a person finds a cheque in the street, and in the first instance
takes it up merely to see what it is ; if afterwards he cashes it and appropriates the
money to his own use, it is felony, though he is a mere finder till he looks at it ” (a).
Illustration (c) is the same as Thurborns case (z). *

(r) Murugait, (1883) l Weir 455.

(s) Sita, (1893) 18 B. 212 (215).

(t) (1917) 40 A. 119 : 16 A. L. J. 12.

(u) (1880) l Weir 453.

(v) Pdrbutty Chur a a Chakravertty, (1870) 14 W. R. (Cr.) 13.

(w) Madduri Krishnanaina, (1883) 1 Weir 455 ; Rumkrishnu, (1888) 12 M. 49.

(x) Desraj , (1926) 8 L. 662 : A. I. R. (1928) Lah. 92.

(y) Local Government , C. P. v. Madho Patwari, (1921) 23 Cr. L. J. 557: 68
I. C. 157: A. I. R. (1923) Nag. 146, following Tulsidas Chaganlal, 8 Bom. L. R.
951 * 5*Cr. L. J. 5.

(z) William Thurburn, (1849) 18 L. J. (M. C.) 140.

(a) Ibid. *

762

THE INDIAN PENAL CODE

[ CHAP. XVIt

Illustrations ( d ) and (e) are adopted from the English case ‘ West * (b).

These illustrations ( d ) and ( e ) were not in the original draft but were subse-
quently added. The last illustration (/) is not in accordance with the English law.

Finding property — will come under Explanation 2. Of course there can be
no criminal misappropriation of a property that has been actually abandoned, as for
example a sacred bull. But it has been held that a bull dedicated to an idol and
allowed to roam at large is not fera bestia and therefore res nulliu$ % but prima facie
the trustee of the temple, where the idol is worshipped has the rights and liabilities
attaching to its ownership (c). It has been held in Mahadev Govind's case (p) that
illustration (a) is not to be taken as qualified by illustration (d).

But where property is left in such a place, e. g. t in a railway carriage, or a shop
or a hackney carriage where the owner might come back in quest of it, the property
is neither res nullius nor abandoned and any person appropriating them dishonestly
commits the offence of Larceny under the English law and criminal misappro-
priation under the Code.

Under the Indian Penal Code a person commits the offence of criminal mis-
appropriation if he appropriates the property found, to his own use, when he knows
or has the means of discovering the owner or before he has used reasonable means
to discover and given notice to the owner and has kept the property at a reasonable
time to enable the owner to claim it. (Explanation 2).

Wandering Cow Rights and liabilities of finder : — Where the cow which
was wandering for 3 or 4 years and the ownership was not traced to anybody was
misappropriated, the Patna High Court held that the accused was not guilty of
any offence and as such could not be convicted under this section (e).

404 . Whoever dishonestly misappropriates or converts to his
Dishonest misappro- own use property, knowing that such proper-
poiessed by SeSd ty was in the possession of a deceased person
person at the time of at the time or that person s decease, and has
hjs death. not since been in the possession of any person

legally entitled to such possession, shall be punished with imprison-
ment of either description for a term which may extend to three
years and shall also be liable to fine ; and, if the offender at the
time of such person's decease was employed by him as a clerk or
servant, the imprisonment may extend to seven years.

Illustration.

Z dies in possession of furniture and money. His servant A , before the money
comes into the possession of any person entitled to such possession, dishonestly
misappropriates it. A has committed the offence defined in this section.

r

Dishonestly misappropriates— $. 403. Property (moveable)— s. 22.

Possession — s. 27.

Scope s — Sadasiv Iyer, J., held : “ As is shown by the illustration to s. 404,
that section was intended to punish servants and strangers who could have possibly
no right to or interest in the effects of a dead man and wfio misappropriated such
effects and was not intended to punish near relations who take possession of and

(b) (1854) Dears C. C. 402.

(c) Nalla , (1887) 11 M. 145.

(d) (1930) 32 Bom. L. R. 356.

(e) Sarajyl Hague, (1920) 23 Cr. L. J. 401 (P.) : 07 1. C. 497.

SEC. 404 ]

OF CRIMINAL MISAPPROPRIATION

763

deal with the deceased's effects under a claim of independent ownership or a claim
to succeed as heir to the deceased "(f). The Calcutta High Court held that it is
not necessary for the purpose of conviction under this section that the prisoner should
misappropriate to his own use. The words in the section are in the alternative —
4 misappropriate or convert to his own house ' (g).

When offence not made out : — Where a Sub-Inspector of police was con-
victed under this section for dishonestly misappropriating a lawris bullock and the
facts were that the bullock was kept by the accused for 20 days and then sold and
that he had advertised for the owner but no one turned up, held that no offence
was made out (h).

Jewels entrusted for sale -price realised by him but not paid to owner :

— Where some jewels were entrusted to the accused for sale as a broker and that
instead of selling them the accused had pledged them with various persons and kept
the money and where the evidence established that the offence was not in respect of
these jewels but in respect of the money which the accused received by sale, the
Lower Burma Chief Court held that the accused did not misappropriate the jewels
but the money, and the purchaser was held protected by exception 3 to s. 108,
Indian Contract Act (i).

Procedure Non-cognizablc— Warrant — Bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

The Madras High Court held that the offence under this section is not one of
the class of offences that may be compounded — the dishonest intent expressed in
the section is a necessary ingredient of the offence and held further that the sub-
ordinate Magistrate acted illegally in permitting the prosecution to withdraw the
case (j).

Charge The charge under this section should specify the person to whom
the property belonged (k).

Form of charge s — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused) as follows -

That you, on or about the day of , at ,

dishonestly misappropriated (or converted to your own use) certain moveable pro-
perty namely , knowing that such property was in the possession of

XY a deceased person at the time of the said XY's decease, and had not since been
in the possession of any person legally entitled to such possession; and that you
thereby committed an offence punishable under s. 404 of the Indian Penal Code
and within my cognizance (or within the cognizance of the Court of Session or the
High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge. •

Property : — This section does not apply to immoveable property (1). The
Calcutta High Court following this decision of the Bombay High Court (I) held that
the property referred to in this section must be moveable property (m), but the

(f) Karri Mangadu.MQU) M. W. N. 791 (792).

(g) Nobin Chandra Sircar, (1899) 12 W. R. (Or.) 39.

(h) Amir Hassan Khan, (1925) 24 A. L. J. 128: A. I. R. (1925) All. 251.

(i) Nanalal v. Maung Turn Yan , (1911) 4 Bur. L. T. 170 : 12 Cr. L. J. 457
1JI.C. 1003.

(j) . (1874) 7 M. H. C. R. (App.) 34.

(k) Parbutty Charari Chakrdberty,. (1870) 14 W. R. (Cr.) 13.

(l) Girdhar Dharmadas, (1869) 6 B. W. C. R. (Cr. C.) 33 (35).

(m) Jugdown Sinha, (1895) 23 C. 372.

764

THE INDIAN PENAL CODE

[CHAP, XVII

Allahabad High Court in Daud Khatfs case (n) has dissented from the above view
and held that s. 404 contains no such express limitation as in Ss. 413 and 413 in that
criminal breach of trust cannot be committed in respect of immoveable property and
criminal misappropriation or conversion is easily possible of immoveable property
where (as in this case) the materials have been severed from the building and
removed.

Claim of right Where there was a dispute between the mother of a dead
male owner and one of the two minor childless daughters- in-law of the said owner
as to who was entitled to the assets left by the deceased and the mother took pos-
session of the moveables and claimed them as belonging to her and the Magistrate
convicted her and one of the debtors of her son whom she discharged from his
obligation under Ss. 404 and 424, the High Court of Madras set aside the
conviction and sentences (o).

Of Criminal Breach of Trust.

The offence of criminal breach of trust is defined in s. 405, the punishment
for the same is provided for in s. 406 and the offence of criminal breach of trust
is liable to aggravated punishment when committed by a carrier, wharfinger, or
warehouse keeper, (s. 407) by a clerk or servant or by such person employed as a
clerk or servant, and being in any manner entrusted in such capacity with property,
or with any dominion over property (s. 408) and by a public servant, banker, mer-
chant, factor, broker attorney or agent (s. 409).

405. Whoever, being in any manner entrusted with property,
or with any dominion over property, dis-
tnfst inunal breaCh ° f honestly misappropriates or converts to his
own use that property, or dishonestly uses
or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or
of any legal contract, express or implied, which he has made
touching the discharge of such trust* or wilfully suffers any other
person so to do, commits “ criminal breach of trust. ”

Illustrations,

(а) A, being executor to the will of a deceased person, dishonestly disobeys the
law which directs him to divide the effects according to the will, and appropriates
them to his own use. A has committed criminal breach of trust.

(б) A is a warehouse-keeper. Z, going on a journey, entrusts his furniture to

A, under a contract that it shall be returned on payment of a stipulated sum for
warehouse-room. A dishonestly selis the goods. A has committed criminal breach
of trust. *

(c) A, residing in Calcutta, is agent for Z , residing at Delhi. There is an express
or implied contract between A and Z t that all sums remitted by Z to A shall be
invested by A, according to Z's direction. Z remits a lakh of rupees to A , with
directions to A to invest the same in Company's paper. A dishonestly disobeys the
directions and employs the money in his own business. A 0 has committed criminal
breach of trust.

( d ) But if A, in the last illustration, not dishonestly but in good faith, believing
that it will be more for Z’s advantage to hold shares in the Bank of Bengal, disobeys

(n) (1925) 24 A. L. J. 153.

(o) In re, Kan Mangadu , (1914) M. W. N. 791 : 15 Cr. L. J. 60 2 : 25 I. C. 51 3.

SEC. 405 ]

OF CRIMINAL BREACH OF TRUST

705

Z's directions, and buys shares in the Bank of Bengal for Z t instead of buying Company’s
paper, here, though Z should suffer loss, and should be entitled to bring a civil action
against A, on account of that loss, yet A , not having acted dishonestly, has not com-
mitted criminal breach of trust.

(e) A, a revenue-officer, is entrusted with public money and is either directed
by law, or bound by a contract, express or implied, with the Government, to pay
into a certain treasury all the public money which he holds. A dishonestly appropriates
the money. A has committed criminal breach of trust.

(f) A, a carrier, is entrusted by Z with property to be carried by land or by
water. A dishonestly misappropriates the property. A has committed criminal
breach of trust.

Analogous law : — The corresponding provision of the English Statute 24 and
25 Viet., c. 96, s. 68 (Larceny Act, 1861) runs as follows : —

“ Whosoever, being a clerk or servant or being employed for the purpose of or
in the capacity of a clerk or servant, shall fraudulently embezzle any chattel, money
or valuable security which shall be delivered to or received or taken into possession
by him for or in the name of, on account of his master or employer, or any part thereof
shall be deemed to have feloniously stolen the same from his master or employer,
although such chattel, money or security was not received into the possession of such
master or employer, otherwise than by the actual possession of his clerk, servant or
other person so employed and being convicted thereof shall be liable, at the discretion
of the Court to be kept in penal servitude for any term not exceeding fourteen years,

or to be imprisoned and if a male under the age of sixteen years with or

without whipping. "

Morgan and Macpherson observe : “ This offence like the offence of criminal
misappropriation is characterised by an actual fraudulent appropriation of property.
There is not originally a wrongful taking or moving as in theft, but the offence con-
sists in a wrongful appropriation of property, consequent upon a possession which
is lawful.

“ The offence is distinguishable from criminal misappropriation, because the
subject is not property, which by some casaulty or otherwise but without criminal
means, comes into the offender’s possession ; but property which is entrusted to the
offender by the owner or by other lawful authority and which the offender holds
subject to some duty or obligation to apply according to the trust.

“ Cases of embezzlement under the English law appear to fall under this head
of the Penal Code ” (p). #

Scope : — This section does not cover misappropriation of the sale proceeds (q).
Balthasers case (q) of which the above is the first paragraph of the head-note has
been explained in Dwaruknath Haridass case (r) as follows : — “ But it will be
seen that the first paragraph of the head-note to that case is too wide and is not
justified by the terms of the judgment.”

" The offence is complete when there is dishonest misappropriation or con-
version to one’s own use or when there is dishonest user or disposal in violation of
any direction of law prescribing the mode in which the trust is to be discharged or
of any legal contract, express or implied which the accused has made touching the
discharge of the trust, or when the accused wilfully suffers any other person to do
so” (s). Mere retention of money is no offence under this section (t). Mere
obligation to pay any amount before or after realisation does not render a
person guilty of criminal breach of trust (u).

(p) Morgan and Macpherson * Penal Code ' p. 364.

(q) Balthasar , (1014) 41 C. 844 (848) : 19 C. W. N. 422: 15 Cr. L. J. 683 : 26
I. C. 131.

(r) (1928) 30 Bom. L. R. 1270.

(s) Per Mukerji, J., in Sunanda Dhone v. Lala Sante Prokash Nanley , (1924)
29 C. W. N. 435.

(t) Lala Reoji Mahala , (1928) 30 Bom. L. R. 650.

(u) Ratnaswami Reddy, (1930) M. *W. N. 790,

766 THE INDIAN PENAL CODE [ CHAP. XVII

Ingredients of the offence Mayne in his valuable commentary observes :

“ the two ingredients fii the offence are, first an original trust, and

secondly a dishonest appropriation of the trust property.

“ A trust may be defined as any arrangement by which one person is author*
ised to deal with property for the benefit of another. This definition will cover
both classes of the description of a trust given in s. 405 " (v).

The offence of criminal breach of trust i<* completed by the misappropriation
or conversion of the property, dishonestly, i\e., with the intention of causing wrong*
ful gain or loss. It is only the intention which is essential (w).

Distinction between criminal misappropriation and criminal breach
of trust : — In ‘ criminal misappropriation/ the offender dishonestly misappropriates
or converts to his own use any moveable property which has come to his possession
lawfully though the accused may have found the property by chance and he sub-
sequently misappropriates it ; but in the case of criminal breach of trust, the
offender is lawfully entrusted with property or with any dominion over property
which he afterwards dishonestly misappropriates or dishonestly disposes of^ in
violation of the trust, or wilfully suffers any other person to do so. In * criminal
breach of trust ' * criminal misappropriation ’ is involved but the essential factor
is the ‘trust* and the dishonest breach thereof is explained in s. 405.

Trust* is essential to constitute an offence under this section:— It

is a question of fact whether there has been an entrusting of the property, or
giving a dominion over it, sufficient to come within the purview of this section (x).

Where a partner made an untrue statement when asked as to the expenditure
of money he had received, the Calcutta High Court held that it was open to the
accused to spend the money, he had received and to account for it in dealing with
the partnership and where it was not satisfactorily made out that this was not done,
the accused could not be convicted under s. 406 as there was no dishonest con-
version (y), Where an Assistant Station Master of the North Western Railway
was convicted of an offence under this section for not having credited the excess
charge on tickets issued by him, held that the accused could not be convicted as
he was not a trustee within the meaning of this section (z).

Where payment was made to the accused of a debt owing to him, on condition
that he would return the bond, but the accused did not return the bond and subse-
quently denied receipt of the money, it was held that there was no dishonest mis-
appropriation of the money, because the accused had a right to retain the money nor
was there any trust on the accused which would bring him under the purview of s.
406 (a). Where the property which was the subject-matter of the counts under s. 406
was claimed and obtained by 5 as property to which he was himself entitled as being
his father’s heir and the will had not been admitted to probate there might be
difficulty in saying that S could have been convicted under s. 403 in respect of these
assets (b).

4 in any manner entrusted with property * The fact that the com-
plainant entrusted accused with hi; flock in order to evade payment of an execution
which might be issued is not a legal defence which will justify the accused in selling

(v) Mayne, ‘ Criminal Law of India, ’ 3rd Ed., pp. 754 and 755.

(w) In re. Ram Bilas, (1914) 38 M. 039 (041) : (I9J4) M. W. N. 894 : 29 M. L. J.

175 : 16 M. L. T. 505 : 15 Cr. L. J. 088 : 26 I. C. 136.

(x) Nagendra Lai Chatterjee v, Okhoy Coomet Shaw,bi W. R. (Cr.) 59 F. 13.
overruling Lall Chand Roy, 9 W. R. (Cr.) 37.

- (y) "Debt Prosad Bhagat v. Nagar Mall , (1908) 35 C. 1108.

(z) Kudrat Nath , (1922) 6 Lah. L. J. 125 : 24 Cr. L. J, 879 ; 75 I. C. 79 : A. I. R.
(4923) Lah. 295.

* (a) Gohttn Hussain, (1917) 22 C. W. N. 1005 : 20 Cr; L. J. 151 : 49 I/C. 34J.

(b) Susen Behari Roy , (1930) 58 C, 1058 (S. B.) (1059, 1060).

SEC. 405 ]

OF CRIMINAL BREACH OF TRUST

767

the animals and appropriating the sale proceeds to his own use (c) but where
goods are delivered in pursuance of a contract for their purchase, there is no entrust-
ment which would give rise to a trust and the mere fact that the person denies
receipt of goods delivered does not render him guilty of an offence either of
criminal misappropriation or criminal breach of trust (d).

The expression * entrusted ' here is used in its legal and not in its figurative or
popular use. The section makes no distinction between different kinds of
moveable property. If the expression ' entrusted * is applied to a thing which is not
money it would indubitably indicate that such thing continues to remain the pro-
perty of the prosecutor, during the period in which the accused is permitted to have
any domain over it (d 1 )*

“ 'Entrusted ’ is not necessarily a term of law. It may have different implica-
tions in different contexts. In its most general significance all it imports is a hand-
ing over the possession for some purpose which may not imply the conferring of any
proprietary right at all " (e).

The first essential of the offence under this section is that the accused should
be entrusted with the money (f).

Advance to brokers on pronotes —Loan or Trust Where A % a paddy
dealer entered into an agreement with B % the object of which was that A should
supply B with certain baskets of sound paddy at a particular village and to be
delivered at S’s mills, and the value of the paddy to be credited at the ruling market-
rate for the like paddy and B advanced A Rs. 10,000 to enable him to purchase this
paddy, and thereafter A executed five promissory notes payable on demand but
bearing no interest, a Full Bench of the Lower Burma Chief Court held that there
was no entrustment of the money to A within the meaning of this section, Ormund,
J., held further that in a prosecution for criminal breach of trust the fact of the
trust must be established beyond all reasonable doubt (g). The Lower Burma
Chief Court by a Full Bench held that a broker cannot be convicted under s. 405
when the real nature of the transaction was a loan (h).

Where the complainant advanced money to the accused for the purpose of a
motor car and sell it and return her the money with half the profits, but the accused

P ut the money into his own pocket and applied to other purposes, the Allahabad
ligh Court held that the accused was not guilty of criminal breach of trust (i).
Where the accused obtained a motor car from the complainant on a hire-purchase
agreement and the complainant obtained a decree against him for the price re-
maining due under the agreement, but no lien on the car was declared, the Calcutta
High Court held that the original contract having been merged in the decree, the
accused in disposing of the car did not commit an offence under s. 406, but that the
offence of the accused might amount to one under s. 206 (j).

(c) Chinna Karuppa Mopan, (1889) 1 Weir 403. *

(d) Valayalhuman Cheity , (1922) 24 Cr. L. J. 332.

(dl) Ghanshamdas, (1927) 108 I. C. 663 : A. I. R. (1928) Sindh. 106.

(e) Per Viscount Haldane, in Lake v. Simmon, (1927) L. J. K. B, 621 (625).

(f) Gouri Narayan v. Tilbikram Chetri , (1920) 25 C. W. N. 838: 23 Cr. L. T

220 : 65 I. C. 1004.

(g) Nga Fo Seik . (1912) 6 L.-B. R. 62 (F. B.) : 6 Bur. L. T. 143 : 13 Cr. L. J.

888 : 17 I. C. 824, followed in Hock Chock &> Co. V. Thaka Do, (1912) 7 L. B. R 16

(F. B.) 6 Bur. L. T. 13 : 14 Cr. L. J. 145 : 19 I. C. 145.

(h) Nga Po Ywet, (1913) 7 Bur. L. T. 209 (F. B.) : 7 L. B. R. 278 : 15 Cr. L T
452: 24 1. C. 332.

(i) William Cecil Keymar , (1914) 12 A. L. J. 730 : 15 Cr. 1.. J. 284 : 23 I. C.

492 .

(j) Alec Aran Cohen v. Sashibhusan Das, (1917) 18 Cr. L. J. 728,

768

THE INDIAN PENAL CODE

[ CHAP. XVII

Where goods are delivered to a person in pursuance of a contract for their
purchase and the complainant had, about the same time that the criminal case under
s. 406 was going on, instituted a civil suit and obtained a decree for the payment of
the price of the goods, the Madras High Court held that mere delivery of posses-*
sion was not an entrustment and that the accused could not be held either guilty
of criminal misappropriation or criminal breach of trust (k).

€ dominion over property * : —The section contemplates either entrustment
with property or ‘dominion over pioperty/ Now a person is entrusted with
dominion over property when the possession remains with the owner but he is given
power of attorney to dispose of it, e.£., as an agent, a shopman, manager of a mill,
etc. His dominion may be limited or unlimited, permanent or temporary and if
he dishonestly converts to his own use such property, he will commit this offence.

Where the prisoner, a miller whose duty was to obtain a ticket at the porter's
lodge specifying the quantity bought, in breach of his duty, ground grain without
such ticket, was indicted for embezzlement for having misappropriated money re-
ceived by him from persons who brought grain to be ground without a ticket, the
Court of Criminal Appeal held that a conviction could not be sustained as the
prisoner did not receive the money by virtue of his employment (1).

Where the applicant, who was a member of the municipality at Cawnpore and
one of his duties was to supervise and check the distribution of water, in other
words, had dominion over the water, deliberately misappropriated that water for his
own house and for the use of his tenants and did not pay tax for that, the Allahabad
High Court held that the applicant was clearly guilty of an offence under s. 408, and
further the conduct of the applicant in realising money from his tenants on account
of water-tax and misappropriating that money to himself clearly falls under
s. 406 (m). The Madras High Court has held that when a clerk in the service of
an estate who is authorised to receive moneys on their behalf and to pay them into
the estate treasury, recovers money and appropriates them, he becomes guilty of
criminal breach of trust and it is not open to him to say that the moneys were his
moneys and he had only to account for the same (n). The Calcutta High Court
in a civil case held that if a mortgagor in possession who is entrusted with the
dominion over property wilfully defaults and causes the property to be sold for
arrears of Government revenue for the purpose of defrauding the mortgagor, he is
liable to be punished for an offence under s. 405 (o).

Property: — Although this section does not describe in express terms
‘ moveable property/ it relates to moveable property in this and the subsequent
sections relating to the offence of ‘ criminal breach of trust/

It follows from the section that the property is not restricted to ‘moveable pro-
perty * as in s. 403, and the earlier decision of the Calcutta High Court in Ram
Manick Saha's case (u) has application to immoveable property as well. But the
Calcutta High Court in a later decision held that the * property * referred to in
s. 405, must as fn s. 403, be moveable property and that ‘ criminal breach of trust
cannot be committed in respect of immoveable property (p). Criminal breach

(k) In re. Velayutha Chetlv, (1922) 24 Cr. L. J. 332 : 72 I. C. J72 : A. I. R. (1924)
Mad. 510.

(!) Harris, (1 854) 6 Cox. 303.

(m) Bimalacharan Roy, (1913) 35 A. 301 (363) : 11 A. L. J. 369: 14 Cr. L. J.
415: 20 I. C. 239.

(n) In re. Pidripolu Venkata Subba Rao, (1920) M. W. N. 518 : 21 Cr. L. I. 824 :

58 1. C. 824. '

(o) Ram Manik Saha v. tirindaban , (1866) 5 W. R. (Civil) 230.

(P) Jugdown Singha , (1895) 23 C. 372, following Giridher v. DhermadUs, (1809)
0 Pom, H. C. R. (Cr. C.) 33, ^ '

SEC. 405 ]

OF CRIMINAL BREACH OF TRUST

769

of trust cannot be committed in respect of immoveable property (q). The
Bombay High Court in a case where a forest guard allowed a timber merchant
to cut trees without the permission of Government in the Government
forest of which he was in charge, held that the accused guard could not be said
to have been in any manner entrusted with the trees in the forest or with any domi-
nion over those trees as the trees were immoveable property (r). Where a certain
land on which there were standing crops, was entrusted to the accused to guard till
they were ripe, but the accused cut off the crops and disposed of them, it was held
by the Calcutta High Court that though at the time of entrustment, the property
was immoveable property, but it became moveable property when the crops were
cut and they still remained entrusted to the accused and by improper disposal
thereof he became guilty of criminal misappropriation within the meaning of
s. 405 (s).

This section does not cover misappropriation by a person of the sale proceeds
of the property entrusted to him. A person cannot be said to have disposed of the
property or the sale proceeds, in violation of his contract, dishonestly,* unless it is
shown that he had the intention of dishonestly appropriating that sale-proceeds on
the date of the sale (t). It may be pointed out that the above passage in
Ballhusar s case (t) has not been drawn from the head-note.

The Allahabad High Court held that a cancelled cheque is a ‘ property * as used
in this section even if it has no higher value than a mere piece of paper (u).

Partner ’ The Calcutta High Court by a Full Bench held that where it is
made out by the evidence that one partner was entrusted by his co-partners with
property, or with a dominion over it, and that he had dishonestly misappropriated
it, or dishonestly used it in violation cf the mode in which his trust v/as to be dis-
charged, or of the agreement between the parties as to the use he was to make of the
property, he is guilty of * criminal breach of trust ’ (v).

Where the complainant gave the accused a sum of five thousand rupees which,
added to a like sum contributed by the accused, was to be spent in a rice business
and the accused did not fulfil his contract and made an untrue statement as to the
expenditure of the money, it was held* that the contract established a partnership
between the two persons and the accused as a partner was plainly entitled to be
called upon for account and he had every right to spend the money end account
for it in dealing with the partnership and he could not be convicted under s. 406 (w).
Where the necessary ingredients justifying a prosecution are present, the law im-
poses no bar to the prosecution by a partner of his co-partner (x). Where the
prisoner who was a member of e co-partnership and it was his duty to receive money
for the co-partnership, and once a week to render an account and pay over the gross
amount received during the previous week, embezzled the money, held that it would
be very mischievous if, in such cases as these, servants could not be indicted for
embezzling the aggregate amounts for which they fail to account (?).

(q) Chandanlal. (1926) 27' Cr. L. J. 100 : A. I. R. (1926) Lah. 478: 9 5 I. C.
280, following Jugdawn Singha, (1895) 23 C. 372, which followed Girdhar Dharamdas,
C Bom. H. C. Cr. 33.

(r) Bhagu, (1897) Rat. Unrep. Cr. C. 928.

(s) Durga Tewari, 36 C. 758, following Bhagu, (1897) Rat. Unrep. Cr. C. 928.

(t) Balthasar , (1914) 41 C. 844.

(u) Mania Baksh, (1904) 23 A. 28.

(v) Nagendra Lai Chatterjee v. Okhoy Coomar , (1874) 13 B. L. R. 307 : 21 W. R.
69 (F. B.), overruling Lai Chand Roy , (1868) 9 W. R. (Cr.) 37.

(w) Debt Prasad Bhagat v. Nagar Mull (1908) 35 C. 1108.

(x) Bhudharmal Marwhri v. Ratnchandra Marwari , (1920) 1 Pat. L. T. 127:

21 Cr. L. J. 335 : 55 I. C. 874, •

(y) Edmuvd Balls, (1871) L. R. I V C. C. R. 328,

' * 55

770

THE INDIAN PENAL CODE

[CHAP* XVII

Where the defendant was convicted on an indictment under 31 and 32 Viet.,
c. 1 16, s. 1, and the charge drawn up was that the prisoner as a treasurer embezzled
money of a trading club and failed to pay over or account for it, it was held that the
prisoner was rightly convicted (z).

In England, this point is covered by legislation (Statute 31 and 32 Viet., c. 1 16).

Pledgee : — The Madras High Court has held that when the accused had
pledged certain promissory notes to the complainant as security for a loan and
subsequently took them back pretending that he required them to collect money
from his debtors with the aid of which he would pay cash to the complainant and
then dishonestly disposed of the pronotes in violation of the legal contract he had
made with the complainant, the accused was guilty of criminal breach of trust
inasmuch as there was both entrustment and dishonest misappropriation (a).

A pledgee has a perfectly legal right to deal with the pledged property in any
manner he chooses, so long as he is within the rights that a bailee can exercise as
regards the property which is the subject-matter of bail (b).

Hire-purchase agreement : — In a hire-purchase agreement the hirer is
under no legal obligation to buy, but has an option either to return the article or
to become its owner on payment in full. Therefore where a hirer of a sewing
machine without making payments in full sells it, he is guilty of an offence within
the meaning of this section (c). The Bombay High Court held that an accused who
was entrusted with a motor car under a hire-purchase agreement is guilty of the
offence of criminal breach of trust when the accused in violation of the agreement
mortgaged the car to other persons (d). The Allahabad High Court has recently
held that the hirer of an article under the hire-purchase system selling the article
before he had paid up all the instalments would be guilty under s. 406 (e). The
Lower Burma Chief Court by a Full Bench held that an accused could not be
convicted of criminal breach of trust when money was advanced to the accused,
a broker for the purchase of paddy where the contract was that the accused should
buy paddy at what rate he could and sell at the market rate (f).

The words of the section do not embrace the case of a person who has taken
an article on hire and fails to produce it. There must be some evidence that he
acted dishonestly. A person who fails to produce a meter installed by an electric
company is responsible for its price but is not guilty of criminal breach of trust (g).

Money paid to broker for making payment to a firm— appropriation
by him as brokerage : — Where the accused, who was a broker, was entrusted with
a sum of money by the complainant for the purpose of paying a certain
firm the price of some grains purchased through him, appropriated the
money himself and alleged that the sum was paid to him as brokerage and it was
proved that some money on that date was due by the complainant as brokerage

(z) Tankard, (1894) 1 Q. B. D. 548 (551).

. (a) In re. Venkataguru Hatha Sastri \ (1923) 45 M. L. J. 133: (1923) M W N.
313 : 24 Cr. L. J. 452 : 72 I. C. 612. ' ' ’ .

(b) Surju Prasad , (1922) 24 Cr. L. f. 10 ; 71 I. C. 58: A. I. R, (1922) Oudh

280.

(c) Maung Mya Gyi v. Mg Po Shtve , (1914) 7 Bur. L. T. 222 : 7 L. B. R. 298 :
15 Cr. L. J. 425: 24 I. C. 161 ; Cohen v. Sashibhusan Das. (1917) 18 Cr. L. I 728:
40 1. C, 728.

(d) Sillas Moses , (1915) 17 Bom. L. R. 670 : 16 Cr. L. J. 665: 30 I. C. 649.

(e) Cadd , (1923) 45 A. 588; 21 A. L. J. 510.

(f) Hock Chong <S* Co. v. Thaka Do . (1912) 7 L. B. R. 16 (F. B.l : 6 Bur L T.

13; 14 Cr. L. J. 145 : 19 I. C. 145 ; Nga Po Seik t 6 L. B. R. 02 (F. B.) : 5 Bur. L.' T.

143; 13 Cr. L. J. 888 : 17 I. C. 824.

(g) Mjmihl, (1932) A. L. J. 213 : 3S Cr. L. J. 806,

SEC. 405 ]

OF CRIMINAL BREACH OF TRUST

771

and it was not clearly proved on which account the money was paid to the accused,
the Calcutta High Court gave the accused the benefit of doubt and his conviction
under s. 406 was set aside (h).

Auctioneer : — The Calcutta High Court has held that an auctioneer is liable
for criminal breach of trust if he does not punctually carry out every term in
the agreement (i).

* dishonestly misappropriates or converts to his own use ’—See notes
under s. 403, supra .

Intention must be dishonest — The Madras High Court has held that the offence
of criminal breach of trust is completed by the misappropriation or conversion
of the property dishonestly. It is only the intention which is essential (j).

Where the Secretary of the Society for Prevention of Cruelty to Animals, to
whom a Magistrate made over a pony condemned by the Municipality, sold it to
an ekka-driver, it was held that he was guilty under s. 406 (k).

Bona fide disputes : — Creswell, J., held : “ Embezzlement necessarily

involves secrecy ; the concealment, for instance, by the defendant of his having
appropriated the money. If instead of denying his appropriation a defendant
immediately owns it, alleging a right or an excuse for retaining the sum de-
tained, no matter, how frivolous the allegation and although it should turn out that
there was no such custom as that set up, I do not say what species of offence this
may amount, but in my opinion, not to embezzlement " (1).

A person who pledges what is pledged to him may be guilty of criminal breach
of trust. Great caution ought to be used in drawing the inference of dishonesty
from breach of a duty imposed by civil law (m).

Where a director of a company in assenting to the payment of dividends
out of capital and to advances on improper security honestly relied on the judg-
ment, information, and advice of the chairman and general manager of the bank
by whose statements he was misled and whose integrity, skill and competence
he had no reason for suspecting, it was held that the estimate having been made
bona fide and without intention to defraud any body, the director could not be
liable when the company was wound up (n).

The Calcutta High Court held in a case that the accused should net be con-
victed of criminal breach of trust, on refusing to give the complainant money
which is claimed by another person as well as by the complainant and which, he
denies, is due to the complainant (o).

Where the chairman of a municipality was convicted of criminal breach of
trust in respect of Rs. 68 the Bombay High Court held that the mere delay of
payment did not imply any criminality and acquitted him (p). The same High Court
held that the Court should consider whether the wrongful detainer of money
was with a dishonest intention or only on a wrong opinion that the prisoner was
justified in keeping back money adjudged to him under a decree (q).

(h) Dull Chand Dahl, (1917) 18 Cr. L. J. 437 : 38 I. C. 997 (Cal.).

(i) Balthasar. (1914) 41 C. 844 (849).

j) In re. RambVas , (1914) 38 M. 639 : 29 M. L. J. 176 : (1914) M. W. N. 894
10 M. L. T. 506 : 15 Cr. L. J. 175 : 25 I. C. 130.

(k) Gauri Shanker, (1894) A. W. N. 197.

(l) John Norman , (1842) Car. and M. 501.

(m) 6 Mad. H. C. R. 28.

(n) Dovey v. John Cory , (1901) A. C. 477.

(o) Raj hi shore v. Joykjshore , (1900) 28 C. 30. ?

(p) Ardeshir Merwanji, (1889) Rat. Unrep. Cr. C. 484,

(q) Khanderao, (1894) Rat. Unrep. Cr. O. 700,

772

THE INDIAN PENAL CODE

[CHAP. XVII

A mere refusal by an accused to allow the removal of a box left in his house
unless some 'debt due to him by the complainant is paid does not amount to an
offence under this section (r).

The Calcutta High Court has held that where there was no entrustment of
property to the accused, he could not be convicted of criminal breach of trust.
The mere removal of a person’s labels from his bales of jute would not be cirminal
breach of trust of the jute, unless there is conversion of the bales to the use of the
accused (s).

* dishonestly uses or disposes of that property in violation of any di*
rection of law prescribing the mode in which such trust is to be discharged
or of any legal contract, express or implied, which he has made touching
the discharge of such trust 9 : — These expressions show that criminal breach of
trust is not restricted to the 1st clause of the section which says ‘ dishonestly mis-
appropriates or converts to his own use the identical language used in s. 403
(criminal misappropriation).

The word 4 use ’ is a very wide term and may mean temporary or permanent
use. The * use * or 4 disposal * must be dishonest. Dishonestly has been defined
in s. 24, supra .

The Madras High Court has held that in order to constitute wrongful gain
or loss, the property must be lost by the owner, or the owner must be wrongfully
kept out of it. Hence the pledgee of a turban, who deterioriated it by wearing it,
was held not guilty under this section (t). The Calcutta High Court has held that
a user of property comes within this definition when such user causes substantial
loss to the owner of the proj>erty or gain to the accused (u).

Under the English law a director of a company may be its clerk or servant (v).

Where some silver was entrusted to the accused for the purpose of making
ornaments and they introduced copper, the Bombay High Court held that the
accused, was guilty of criminal breach of trust and not cheating (w).

Moveable attached in execution of decree s— Where the accused was
entrusted by a Court officer with certain moveable property attached in execution
of a decree, but at the time of sale they did not produce the property and evaded
service of notice, the Allahabad High Court held that they could not be found
guilty of criminal breach of trust inasmuch as they did not misappropriate the
property or convert it to their own use or dispose of it in any manner contrary to the
terms of the trust, but the accused were guilty of contempt of Court under s. 172 (x).

Retention of money : — Where the accused, who was employed as an agent
for collection of taxes to the Union Committee, was under an agreement to take
10 p. c. of the collection as his remuneration and to hand over the balance to the
master or deposit it into the treasury, no period being fixed for the latter purchases,
it was held thqt a charge under this section could only be maintained after an
adjustment of accounts (y).

Money paid in satisfaction of a debt Where money is placed in the hands
of the accused by the complainant and is retained by the accused against a debt due

(r) In re.Adinarayah Iyer, (1907) 6 Cr. L. J. 330.

(s) SaniohchandA 1918) 40 C. 432, not followed in Khenchand Naroims, Bhavsar,
(1928) ;)OBom. L. R.I273 on the point under s. 197, Cr. P. Code.

(t) Anon, 3 Mad. H. C. R. (App.) 8.

(u) Keshab Chandra Boral v. Nityanund Biswas, (1901) 0 C. W. N. 203. ‘

(v) Jackson, (1844) 1 C. and K. 384.

(w> BuhajMn Dhau. (1807) 4 Bom. H. C. R. (Cr. C.) 46. *

x) Harnant Singh, (1918) 10 A. L, J. COO : 19 Cr. L. J. 976 : 47 I. C. 878.

(y) Narul Hassan, (1919) 21 Cr. X. J. 809 (Pat.).

SEC. 406 ]

OF CRIMINAL BREACH OF TRUST

773

from the complainant, held , the accused is not guilty under s. 406 (z). See the
case of Golam Hussain (a) noted at p. 789.

Retention of money by pleader A pleader's retaining fees the legal
recovery of which is time-barred is not guilty of criminal breach of trust (b).

Payment of rent by tenant —detention for abwab -Where the accused
who was the landlord of the complainant sent for the complainant by a nagdi ,
realised abwab and deducted that from the rent, the Calcutta High Court held that
no criminal offence was committed (c).

* wilfully suffers any other person so to do ’ ' This is another mode of

dishonest breach of trust mentioned in s. 405.

'*■

Where the accused, who was the tindal of a cargo-boat, was entrusted with
200 hides and on delivery on the steamer twenty-two hides were missing, it was
held that the conviction under this section should be set aside as dishonesty could
not be inferred from the fact that some of the hides disappeared from the boat (d).

Where the accused, the mother of a child, took 2 as. from a vaccinator who
wanted to get lymph out of her baby and promised to take the baby and go with
him to another village, but subsequently refused to take the child there, as her
husband angrily and positively refused to let them go, it was held that the accused
could not be convicted under s. 406 (e).

High Court Receivers A Receiver appointed by the High Court who has
under its order taken possession of property cannot be prosecuted for criminal
breach of trust in respect of that property without first obtaining the leave of the
Court (f).

Suit against Administrator— Permission of Court appointing him
necessary : — An Administrator, who was appointed under the Probate Act, ard
who under the orders of the High Court filed the accounts of the estate and an
inventory of the properties of the deceased, and was thereupon discharged but
the prosecution charged him under s. 406 on the allegation that the accounts filed
by the accused contained some false items and fraudulent entries, without obtain-
ing sanction from the High Court, it was held following the decision in Santok
Chand 9 s case (0 that the charge could*not be maintained except with the sanction
of the Court which appointed him administrator (g).

406. Whoever commits criminal breach of trust shall be
punished with imprisonment of either de-
raina”bSch of £ trust. rl " scription for a term which may extend to three
years, or with fine, or with both.

This section provides for punishment for the offence of criminal breach of
trust defined in s. 405.

For commentary see notes to s. 405 supra.

(z) Puran, (I02S) 27 Cr. L. J. 383 : A. I. R. (1920) A. 298.

(a) Golam Hussain, (1917) 22 C. W. N. 1005 : 20 Cr. L. J. 151 : 49 I. C. 343.

(b) Krishna Rao, (1923) 6 N. L. J. 119 : 24 Cr. L. J. 591 : 73 I. C. 335.

(c) Kumeda Charan Ghose, (1911) 15 C. L. J. 615: 13 Cr. L. J. 512: 15 I. C.

056. *

(d) Ramaya, (1904) 10 Bur. L. R. 170.

/e) Satawa, (1891) Rat. Unrep. Cr. C. 557.

(f) Santok CHand, (1919) 46 C. 432, following Aston v. Heron , (1834) 2 M. and
K. 390.

(g) Krishna Lai Dhar’v. Prafulla Kumar , (1920) 33 C. L. J. 252 : 22 Cr. L. J.

205: 60 I. C. 791. ,

774

THE INDIAN PENAL CODE

[CHAP. XVII

Procedure Cognizable— Warrant— Not bailable— Not comooundable—
Triable by Court of Session, Presidency Magistrate orvMagistrate of the first or
second class.

Overt act must be proved : — “As this offence necessarily involves secrecy and
the exact manner, point of time or place where the misappropriation, conversion,
user, disposal or sufferance takes place, remains more often than not, a matter
within the special knowledge of the accused himself. In this class of cases the
overt act of the accused showing his dishonesty is essentially necessary to be proved
to est|blish the offence, and till the time arrives when that act is done it cannot be
said with certainty that the offence was committed “ (h).

The Madras High Court has held that the offence of criminal breach of trust
is dornpleted by the misappropriation or conversion of the property dishonestly,
i.e., with the intention of causing wrongful gain or wrongful loss. It is only the
intention which is essential . Whether wrongful gain or loss actually results is
immaterial ; it is a consequence, but no essential part of the offence by reason of
it. The second part of s. 405 deals with dishonest use or disposal of property in
violation of law or contract. Where the complainant clearly charged dishonest
misappropriation to accused’s own use, and not use or disposal in violation of law
or contract, the offence fell under the first part of s. 405, and secondly , if it were
otherwise, the offence would be committed where the dishonest use or disposal
took place not where the contract was made or should have been performed (i).

The Calcutta High Court has held that before a person can be convicted
under this section it is necessary that the Court should be satisfied that the charge
framed against him has been established. If the prosecution could not prove how
the accused came by the money, they did not establish one of the first essentials
of the offence. If the case of the prosecution is false on the whole, the accused
is entitled to an acquittal whether the defence be true or not (j).

The prosecution has sot to prove—

(I) that the accused was entrusted with property or dominion over property.

Where no trust was proved, the accused cannot be convicted (k).

(2) That he being so entrusted with property or with any dominion over
property (a) dishonestly misappropriated, or ( b ) converted to his own use, or (c)
used it or (d) disposed of it.

(3) That he did so dishonestly.

(4) That he did so in volation of

(a) any direction of law prescribing the mode in which such trust is to be
discharged, or

(A) of any legal contract, express or implied, which he has made touching
the discharge of such trust, or that

(c) he wilfully suffered any other person to do so as in (a) or (A).

j jwedients of a criminal breach of trust are (I) entrustment of property,
and (2) either a dishonest misappropriation of property or a dishonest disposal of

v W 4 9 K U W' i * m ^ unanda phone v. Lala Santi Prokash Nanley, (1024)
29 C. W. N. 435, followed in Munnusamt Naina*, (1930) 55 M L T 643 "

(i) In re. Rambilas, (1914) 28 M. 639 (641, 642) : (1914) M. W N 894 • 29 M L I

175 : 16 M. L. T. 505 : 15 Cr. L. J. 688 : 26 1. C. 136. ' J '

(j) Oauri Narayan Barrue v. Tilbikram Chettri, (1921) 25 C W N 838 18411.
( nJ GoffpHnssain. (1917) 22 C.VV.N. 1005: 20 Cr. L. J, 151 : 491. C. : 343;

-o« * i- « . v ‘ Pntiimone y Beary, (1928) 52 M, 61 (63) : (1928) M. W. N.

*90 : 55 M. L. J. 499. '

715

SEC. 406 ] OF CRIMINAL BREACH OF TRUST

that property in violation of any contract which the accused has made touching
the discharge of such truajt dr wilfully suffering any other person so to do (1).

For the defence to succeed : — (a) Establish hy cross-examination or by
adducing defence evidence that the prosecution has failed to prove the points noted
above.

The accused does not owe any duty to establish his innocence.

Where it was the duty of the accused to pay over money at once or at any
different periods, his non-payment is prima facie evidence that he has dishonestly
misappropriated the money.

Where at the trial of an offence under this section, the accused admits leaving
received the money but defends himself by saying that he made it over to the proper
person, the onus does not lie on the accused to prove payment, but on the prose&htion
to prove non-payment, for it is only when that is proved that a presumption wifi
arise of misappropriation or breach of trust (m).

(&) Suggest by cross-examination or prove by evidence —

(1) That there was no trust which is the essential ingredient of the section (n).

(2) That the accused had no dishonest intention (o). The mere fact that the
payment was delayed is no ground for inferring a dishonest intention.

(3) That the contract in question is illegal.

(4) In cases of implied contracts, the accused may plead misunderstanding
or mistake.

(5) Where the accused is charged for ‘ wilfully suffering any other person to
do so, * etc., the accused should establish that he did not consciously connive at the
violation of any direction of law or derelection of duty, in other words did not
abet the offence.

(6) If there is a defect in the charge or procedure, take that plea.

(7) If there is a bona fide dispute, take the plea that the complainant should
be referred to the civil Court.

Evidence : — The usual evidence of breach of trust is that money entrusted
to the accused has not been paid, or that the accused who was under an obligation
to render account for the money haa either not rendered proper accounts or has
given a false account. In such cases, if the accused takes the plea that he admits
having received the money but that he made it over to the proper person, the onus
lies on the prosecution to show that he has not made the payment, and where there
was no evidence of any breach of trust, it is illegal to place the onus on the
accused (p).

The Calcutta High Court has held that non-payment cannot be proved by the
evidence of entries in books of account, regularly kept, and that the books them-
selves are not admissible in evidence for that purpose (q). This case has been
cited with approval by their Lordships of the Judicial Committee in Ram
Pershad Singh & Lakhipatis case (r). •

(m) Hari Dagdu, (1896) Rat. Unrep. Cr. C. 872, and Ramchandra Ganesh, Rat.
Unrep. Or. C. 800. followed in Prikchand , (1928) 30 Cr. L. J. 18 : A. I. R. (1928) Lah.
382

’ (n) Kudrat Nath. (1922) 6 L. L. J. 125 : 75 I. C. 79 : 24 Cr. L. J. 879 : A. I. R.
(1923) Lah. 295; Gotam flossaiv , (1917) 22 C. W. N. 1005 : 20 Cr. L. J. 151 : 49
I C 343.

(o) In re Rambilas, (1914) 38 M. 639.

(p) Ramchandra Ganesh , (1896) Rat. Unrep. Cr. C, 860 Hari Dagdoo t (1816) ;
Rat. Unrep. Cr. C. 872.

(q) . Srees Chandra Banerjee, (1884) 10 C. 1024.

(r) (1902) 30 C. 247 (P. C.).

776 * THE INDIAN PENAL CODE [CHAP. XVII

The mere fact that the payment was delayed is no ground for inferring a dis-
honest intention (s).

In a case where a servant, who received money for a specific purpose did not
use it for that purpose, but on being called to account, falsely said that he used it
for that purpose, it was held that he was guilty of criminal breach of trust (t).

Place of trial: —The jurisdiction of a Court to try an offence of criminal
misappropriation or breach of trust is governed by s. 181, sub-sec. (2) and not by
s. 179 of the Criminal Procedure Code ; and the loss, though a normal result, is not
an ingredient of the offence of criminal misappropriation or breach of trust, and
not therefore a consequence within the meaning of s. 179 of the Code of Criminal
Procedure (u). It is enough for the purposes of s. 181 (2), Cr. P. Code, if the
property which is the subject of the offence was received or retained by the accused
at a particular place to give jurisdiction to the Magistrate of that place to try the
case (v). The view of Rankin, C. J., in Pascal's case (w), where it has been held
that the offence of criminal breach of trust is triable by the Court within the juris-
diction of which any part of the property was received or retained or the offence
was committed, seems to be the correct view.

Charge : — “ Where the accused is charged with criminal breach of trust or dis-
honest misappropriation of money, it shall be sufficient to specify the gross sum
in respect of which the offence is alleged to have been committed, and the dates
between which the offence is alleged to have been committed, without specifying
particular items or exact dates and the charge so framed shall be deemed to be a
charge of one offence within the meaning of s. 234 :

“ Provided that the time included between the first and last of such dates shall
not exceed one year ” (x).

This proviso qualifies s. 234, Criminal Procedure Code.

Mookerji, J., has recently held in a case under s. 408, infra , as follows : — “ Now
the object of the amendment made by the introduction of sub-scc. (2) to s. 222,
Cr. P. Co, was not to amend the Penal Code, but merely to get rid of a technical
difficulty in framing a formal document, viz., the charge. By this amendment the
procedural law was altered to meet two difficulties. Under the law as it stood
before, there was very great difficulty in convicting when there was a running account
and where the prosecutions were unable to put tbeir hands on a specific item out
of which the particular sum was embezzled or to which it was attributable. The
other difficulty was what was experienced in the case of Pursotam Das, (1896), 24
C. 193. In that case there was a charge of embezzlement of Rs. 9,168-6 as. which
might have been made up of a hundred items under s. 234, Cr. P. C., as it was not
allowed to have more than three offences of the same kind, and so the charge could
not legally stand. The law on these two points was altered and altered for the better .
It was not intended either to throw the onus on the accused by bringing a charge
against him of a deficiency in his accounts or to do away with the necessity of

(s) BalthaSar, (1914) 41 C. 844, explained in Dwarakadas Haridas, (1928) 30
Bom. L. R. 1270.

(t) Golab Khan, (1868) 10 W. R. (Cr.) 28; Lalitmohan, (1894) 22 C. 313.

(u) Sinhachalam , (1926) 44 C. 912 : 21 C. W. N. 573 ; Colville, (1899) 20 C.

746 : 3 C. W. N. 598, followed by Mukerji, J., in Sunanda Dhone v. Lala Sanli Pro -
hash Nandey , (1924) 29 C. W. N. 432 ; Sunanda* s case was dissented from in Jivram
Savchand , (1930) 55 B. 59 (F. B.) : 32 Bom. L. R. 1195 : 32 Cr. LL. J. 831 (1930) 52
A. 894 and G. N. Pascal v. RajKiskore Mother, (1930) 35 C. VV. N. 320 ; Ali Mohammed
Kasim, (1931) 9 R. 339; Paul De Flonder ; (1931) 35 C. W. N. 809.

(v) Laxman, (1926) 51 B. 101.

(w) 5. W. Pascal v. Raj Kishore Mother, 1930) 35 C. W. N. 320 where Sunanda
Dhone v. Lala Santi Prohash Nundi, (1924) 41 C. L. J. 80. was doubted.

(x) S. 222 [2), Code of Criminal Procedure.

OF CRIMINAL BREACH OF TRUST

777

SEC. 406 ]

proving the elements of the offence as laid down in the Indian Penal Code " (y).
Special provisions 'art* made in s. 222 (2), Criminal Procedure Code, for a charge
or criminal breach of trust. They must be strictly observed and proof must be
given that the offence was completed between the dates given. Defect in it cannot
be cured by s. 537, Criminal Procedure Code. A completed act is necessary to
constitute the offence of criminal breach of trust " (z).

In a charge of criminal misappropriation when there were three counts and
each count specified the sum of money alleged to have been misappropriated by the
accused on a particular day, but in two out of the three cases, the total sum consisted
of three separate items in each instance, it has been held that a charge so framed
did not offend against s. 234, Cr. P. Code (a).

Where the charge against the accused was to the effect that he, on or before the
21st June 1907, committed breach of trust in respect of some deeds but he was con-
victed of embezzling not the deeds but amounts obtained by dealing with those
deeds, it was held that the conviction was bad and ought to be set aside (b). It was
held however, by the Allahabad High Court that an accused person may be charged
with criminal breach of trust in respect of a general deficiency, and that it is not
necessary in all cases to charge the accused with the embezzlement of a particular
sum received on a certain date from some particular person. It is enough if the
accused person has sufficient notice of the accusation he has to meet (c). But it has
been held by the Calcutta High Court that the offence of criminal breach of trust
involves entrustment with or dominion over property and dishonest misappro-
priation thereof, and it is not possible to find these elements unless one can form
a conception as to what that property is ; there must therefore be a definite finding
of a certain definite sum traced to the accused in order to form the basis of his
conviction (d). Following V amans case (e) and not Khirodes case (d), it has been
held that on & charge under this section it is sufficient if the prosecution estab-
lishes that some of the money mentioned in the charge has been misappropriated
by the accused, even though it may be uncertain what is the exact amount so
misappropriated (0- In Byramjee’s case (f) the order of acquittal was set aside
on appeal by the Local Government.

Form of charge I ( name and office of Magistrate, etc.) hereby charge
you ( name of accused ) as follows

That you, on or about the. day of at being

entrusted with (or with any dominion over) certain property’ to wit

••••••• ••• * ( mention the property) dishonestly misappropriated (or dishonestly

used) or (disposed of) such property in violation of any direction of law prescribing

the mode in which such trust is to be discharged, viz (or) of any legal

contract express or implied ( quote the contract) which the accused had made touching
the discharge of such trust (or) wilfully suffered any person so to do, and you thereby
committed an offence punishable under s. 406 of the Indian Penal Code, and within
my cognizance (or the cognizance of the Court of Session or the High Court).

(y) Khirode Kumar Mukherji, (1924) 29 C. W. N. 54 (55 5fi) no t fnll.,w P H in
Baramji Challwalle, (1927) 52 B. 280 : 30 Bom. L. R. 325. followed in Bhatkhande,
(1928) 63 B. 119.

(*) Promotha Nath Ray 17 C. \V. N. 479 : 14 Cr. L. J. 219 : 19 I. C. 315 ; see
Premnaram, (1930) 52 A. 941.

(a) Ishtixq Ahmed, (1904) 27 All. 09, following Gulzarilal. (1902) 24 All *34
_ fl>) Uiradamoni Fiewa, (1908) 12 C. W. N. 577, followed in

Balthazar . (1914) 41 C. 844,

(c) Kellie , (1895) 17 A. 133 which was foll.iwcd in
18 A. 116.

Buddhtt v. Babul a l,

(1895)

S ’SSstsr^Tt-i'^ c - w !> M:a c - *- >■ *“•

BuiLnT7&) C £S"M ' ml) “ B - ' m ' 20 L E ' ** “

778 THE HtjDiAN PENAL CODE [ CHAP. XVII

Arid* Thereby direct that, you be tried by the said G>urt (or by me) on the said
• charge. ; * ^

Charge to the Jury The question of dishonest intention is a question of
fact and should be left to the Jury (g).

Sentence : — The Allahabad High Court held that the special sentence under
$. 62 should not be passed in cases of embezzlement and in that case the fine in
addition to rigorour imprisonment was set aside (h).

407. Whoever, being entrusted with property as a carrier,
wharfinger or warehouse-keeper, commits
tr us*t bJTcarricr^c ° f criminal breach of trust in respect of such
property, shall be punished with imprison-
ment of either description for a term which may extend to seven
years and shall also be liable to fine.

This section provides for an enhanced punishment when the criminal breach
of trust is committed by carriers, wharfingers or warehouse-keepers.

For commentary on * criminal breach of trust ' see notes under s. 405.

Procedure : — Cognizable— Warrant— Not bailable— Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Place of trial When the accused was entrusted with the carriage of a
quantity of cofee from an estate in Mysore to a firm of merchants in Mangalore, and
a portion of the goods was abstracted and there was no evidence as to when and
where such abstraction took pace, held that the Sub-divisional Magistrate at
Mangalore had jurisdiction to try the accused on a charge under this section as
there was failure to deliver the goods at Mangalore in accordance with the terms
of the contract (i). In this case the order of an acquittal was set aside on appeal
by the Local Government.

Charge I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on cr about the day of , at ,

being entrusted with certain property to wif , (mention the property)

as a carrier or wharfinger or warehouse keeper committed criminal breach of trust
in respect of it, and you thereby committed an offence punishable under s. 407 of
the Indian Penal Code, and within my cognizance (or within the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Wharfinger : — 44 A wharfinger is he that owns or keeps a wharf, or hath the
over-right or management of it’* (Cowel) (j).

Now a 4 Wharf ’ is a word used in the Statute of 1 Eliz. c. 1 1 and other
Statutes and it is a broad place near to a creek or head of water upon which ‘

(g) Drewett, (1905) 69 J. P. 37.

(h) Amritalal, (1906) 29 A. 24, following Mahomed Akhir, (1869) 12 W. R.
(Cr.) 17.

(i) Public Prosecutor v. Podimoneel Beary, (1928) 52 M. 61 : (1928) M. W. N.
790 : 55 M. L. J. 499 where In re Rambilas, (1915) 38 M? 639, Krishnamachari v.
Shaw Wallace <&* Co , (1916) 39 M. 576; Bepu Daldt, (1882) 5 M. 23 was distinguished
on the ground that there the time and place of the dishonest conversion or disposal
were definite.

(j) Stroud’s Judicial Dictionary, 2nd Ed. Vol. Ill, 2232, where Chattock v.

Bellamy, 64 L. J. Q. B. 250, and The Tredagar Iron Co. Ltd v. 5. S. Calliope, (1891)
A. C. 11 are referred to. •

SEC. 408]

779

OF CRIMINAL- BREACH OF TRUST

goods and wares .are laid, which are to be shifted and transported from place to
place ” (k). '

408. Wh oever, being a clerk or servant or employed as a
f clerk or servant, and being in any manner

Criminal breach of entrusted in such capacity with property,

vant. or with any dominion over property, com-

mits criminal breach of trust in respect of that
property, shall be punished with imprisonment of either descrip-
tion for a term which may extend to seven years, and shall also
be liable to fine.

Criminal breach of trust — $. 405.

Analogous law : — As s. 381 deals with theft by clerk or servant and provides
for aggravated punishment for theft, this section provides for enhanced punishment
where criminal breach of trust is committed by a clerk or servant.

Macpherson and Morgan observe : “ A clerk or servant who takes his master’s
property is punishable for theft ( see s. 381). The present provision seems to
apply to cases in which there is some special trust, as where the clerk or servant
is entrusted with his master’s property that he may sell or dispose of it, or where
he is appointed to collect money and to pay it over to his employer, etc. The
criminal misappropriation by such person of the particular property entrusted to
him, is an offence here made punishable in the same manner as the taking of his
master’s property by a servant when the property taken is not in his possession
or charge in the line of his service or employment, as the theft by a menial servant
of money or other property from his master’s house. Confidential persons such
as are employed by bankers in the moffussil to convey remittances in specie, who
appropriate the money to their own use (alleging that it has been taken from them
by robbers) would it seems, be punishable under this or the last preceding
section ” (1).

Procedure : — Cognizable — Warrant — Not bailable — Not compoundablc —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

The Prosecution must make up their mind what amount they are prepared to
prove the accused has lawfully received and lawfully expended and what total
sum, and how that total sum is made up, he has either uniawfnlly expended or
failed to account for in such a way as to leave no doubt that he has been engaged
in criminal misappropriation (m).

Place of trial : — See commentary on s. 406, supra .

For other Procedure see also commentary on s. 406 un,der the heading

‘ Procedure \

In addition, the Prosecution must prove that the accused was the clerk or
servant or employed as such.

Charge : — See Sunanda Dhone's case (n) noted under this heading, s. 406,
commentary, supra . »

(k) Stroud’s Judicial Dictionary, 2nd edition Vol. Ill p. 2231.

(l) Morgan and Macpherson, ‘ Penal Code, ' pp. 308, 309.

(m) Mohan Singh, (1920) 42 A. 522 (524).

(n) » (1924) 29 C. W.,N. 432. followed in Yacoob Ahmed v. V. M. Abdul Gunny,
(1928) 6 R. 380.

780

THE INDIAN PENAL CODE . [CHAP. XVII

The Calcutta High Court in a circular ordered that the chttge under this
section must specify that the offence has been committed ** in respect of the
property entrusted to him as a servant " (o).

When an accused person was charged under this section with having committed
criminal breach of trust with respect to the gross sum of Rs. 67 realized by
22 rent receipts within the period of one year and the charge not only specified
the gross sum taken and the dates between which it was taken but also set out the
items, 22 in number, the Calcutta High Court held that by specifying the rent
receipts the charge went beyond what was necessary and was to that extent favour-
able to the accused and came within the provisions of cl. (2) to s.222, Cr P. Code (p).
Following this case, the Madras High Court held that the joinder in one trial of
charge of criminal breach of trust by a servant in respect of two distinct items
with a charge in respect of a gross sum is a joinder of three charges and is not bad
and the accused is not in a worse, but in a better, position when the items can be
and are specified, rather than when they cannot be and are not specified (q). Exact
amount misappropriated need not be found on a charge of criminal misappropria-
tion ; it is sufficient if the prosecution establishes that some of the money
mentioned in the charge has been misappropriated by the accused, even though
it may be uncertain what the exact amount so misappropriated is (r).

Form of charge: — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused ) as follows : —

That you, on or about the day of , at ,

being a clerk or servant (or employed as such) in the employment of XY and being
in any manner (state how ) entrusted in such capacity with (or with dominion over)

certain property to wit , committed criminal breach of trust with respect

to the said property, and thereby committed an offence punishable under s. 408 of
the Indian Penal Code, and within my cognizance (or within of the cognizance
of the Court of Session or the High Court).

And I hereby direct that you be tried, by the said Court (or by me) on the
said charge.

Misjoinder of charges Offences under s. 408 cannot be tried with an
offence under s. 477- A of the Code (s). It is , illegal to try a person on a charge
which alleges three distinct acts of criminal breach of trust and three distinct acts
of falsifying accounts (t). It is quite lawful to charge a person under s. 408 in
respect of a lump sum of money made up of three different items and to link with
that a series of charges of falsification of accounts under s. 477-A each of which
charges under s. 477-A is united with one of the items of embezzlement under the
charge under s. 408, provided the charges of embezzlement are linked together
into one sum and that linking together into one sum and that linking together also
effects the charges of falsification (u).

Abetment To support a conviction for abetment of criminal breach of
trust by a servant under Ss. 408 and 114, the prosecution must substantiate

(o) 3 W. R. Cr. (Circular letter) 12.

(p) Samiruddin Sarkar v. Nibaran Chandra Chose , (1904) 31 C. 928, following
Gulzarilal, (1902) 24 A. 254.

(q) Thomas, (1900) 29 M. 558, following Ishtiaq Ahmed, (1900) 27 A. 89.

(r) Byramji Jamsetji Chaewalla , (1927) 52 B. 280 : 30 Bom. L. R. 325, following
I Vaman, (1893) Rat. Unrep. Cr. C. 059; Vinayak Bhatkanda, (1898) 53 B. 119: 30
Bom. L. R. 1530.

(s) Sujauddin Ahmed , (1922) 44 A. 540 : 20 A. L. J. 320, following Sheo Saran
Lot, (1910) 32 A. 219 contra : 22 Cr. L. J. 236 : 00 I. C. 422.

(t) Kasiviswanathan , (1907) 30 M. 328; Raman Behari Das, (1913) 41 £. 722;
Profulia Chandra Khurghoria , (1930) 34 C. W. N, 925.

(u) Michael John, (1930) 10 P. 403. •

SEC. 408]

OF CRIMINAL BREACH OF TRUST

781

thatthe prisoner was acting dishonestly in relation to the transaction, that the tran-
saction was a dishonest one and that the prisoner abetted the servant (v).

Punishment:— Where accused convicted under this section was given the
benefit of s. 562, Cr. P. Code, by the trial Court and considerable time elapsed
before the case went up to the High Court, held f, though usually imprisonment
should be awarded it was not proper to interfere with the Magistrate’s discretion at
such a length of time (w).

Scope : — The offence under this section (s. 408) is committed even when the
act of the accused was to commit criminal misappropriation for a time (x). Mukerji,
J., held : “ The offence of criminal breach of trust involves entrustment or dominion
over property and dishonest misappropriation, conversion, use or disposal thereof.
It is not possible to find these elements unless one can form a conception as to what
that property is. There must therefore be a definite finding of a certain definite
sum traced to the accused in order to form the basis of his conviction ” (y).

Servant 2 — An apprentice though under the age of 18 has been held to be a
servant within the meaning of English Statute (39 Geo. Ill, c. 85) which extends
only to such servants as are employed to receive money (z). A person who is
nominated and elected assistant overseer by the warrant of two justices, and per-
forms the duties of an overseer, is well described in an indictment for embezzlement
as the servant of the inhabitants of the parish (a). The test, whether a person is a
clerk or servant used in many cases is, to ascertain whether the prisoner was bound
to obey the orders of his employer so as to be under his employer’s control (b). A
man is sufficiently a servant within the meaning of the English Statute, although
he is occasionally employed, when he has nothing else to do ; and it is sufficient
if he was employed to receive money, though receiving money may not be in his
usual employment, and although it was the only instance in which he was so em-
ployed (c). Where Hayden, the driver of a glass coach, being a servant to the
prosecutrix was alleged to have stolen purse containing £40 and the prisoner
Chuck received the same knowing it to have been stolen, it was held that the driver
of a coach for the day is not the servant of the party hiring it so as to bring
him within the Statute relating to larceny by servants (7 and 8 Geo., IV, c. 29,
s. 46) (d). Where the prisoner wao employed as a secretary of a friendly society
and had not duly counted according to the rules of the society the money that he
took upon himself to collect, he was answerable as a servant for embezzling
money (e). Under 24 and 25 Viet., c. 90, s. 68 it is embezzlement for a clerk or
servant to embezzle money received in the name or on account of his master or
employer and the assistant overseer of a parish council who is employed for the
purpose of collecting the poor rates is a servant of the inhabitants whose money
he collects and can be held guilty of embezzlement (f).

Director : — A director of a limited company, who is also employed as a servant
to collect moneys for them, is liable to be convicted of embezzlement as a * clerk

— ,, ’

(v) Bolgov inda Shaha , (1900) 4 C. W. N. 309.

(w) Khairati Lai, (1927) 29 Cr. L. J. 291 : 107 I. L. C. 775 : A. I. R. (1928) Lah.

926.

(x) Tulsidas Chhaganlal, (1900) 8 Bom. L. R. 951.

(y) KhirodeKumar Mukherji, (1924) 29 C. W. N. 54 (56), distinguished in Byram
Jamsetji Chaewalla, (1927) # 52 B. 380.

(z) William Mellish, (1805) R. and R. 80.

(a) Carpenter , (1866) L. R. 1 C. C. R. 29.

(b) Negus, (1873) L. R. 2 C. C. $*34 (30).

(c) William Spencer, (1815) R. StmCRy. 299.

(d\ Hayden and Chuck , (1836) 7 C. and P. 445.

Ye) Murphy, (1850) l Cox. 101 ; Proud, (1801) 31 L. J. (M. C.) 71.

(f) £ 'mailman , (1897) 1 Q. B. 4. Sec Carpenter, (1860) L. R. 1 C. C. R.

782

THE INDIAN PENAL CODE

[CHAP. XVII

or servant f of the company under 24 and 25 Viet., c. 96, s, 28 (g). But under the
Indian Penal Code a director of a company would be punishable under $. 409 (h).

Liquidator s—A liquidator who misappropriates money which has come into
his custody as liquidator cannot be said to be acting or purporting to act in the
discharge of his official duty and as such no sanction under s. 197, Cr. P. Code, is
required (i).

* employed as a clerk or servant * Where the prisoner, who was not
employed as a clerk to a local board but his father was, assisted him in his office,
in course of a loan raised by the board, managed the business of his father and
received the money from the mortgagees and appropriated a part to his own use,
was held guilty of embezzlement as he was employed as a clerk or servant (j).

A station master on the E. I. Railway station under an arrangement with the
company received a fixed allowance in respect of the marking, loading and unloading
work at the station. The accused K had been engaged by him as a marksman, and,
whilst so employed, tie received a sum of Rs. 5-10 as. as an overcharge or demurrage,
and embezzled the amount. The Allahabad High Court held that the accused not
having been employed as a clerk or servant of the Railway Company could not be
convicted under this section (k). Where the accused, a servant was ordered by his
employers in Calcutta to take certain bags of papers and forms to a yard in Garden
Reach and there to burn and destroy them and instead of doing this the accused
brought some of them to Bowbazar in Calcutta, it was held that the act of the
accused did not amount to criminal breach of trust under s. 408 (1). Where an
accused person was employed as a pay-clerk and his duties were to receive from his
masters cheques in respect of certain amounts which had become due and payable
on certain bills, and he had to cash the cheques, keep the proceeds with him and
from time to time make payments thereout as and when those bills were presented
to him, he was charged under this section for embezzlement in respect of Rs. 19,651
between April 30 and July 6, 1927, held, he was rightly charged under
s. 222 (2), Cr. P. Code (m).

A person who works for a firm in making purchases made by him is a servant
within the meaning of this section (n).

* being in any manner entrusted in sych capacity * s— Where a constable
was entrusted as a private individual with monies by the Court- Inspector which
instead of paying into the Collectorate he dishonestly converted to his own use,
although he afterwards restored them, the Calcutta High Court held that the
accused was guilty under this section (o). Where the secretary of a Benefit Build-
ing Society was in the habit of receiving monies and embezzled a sum so paid to
him, it was held that he might be convicted of embezzlement under the Statute 7
and 8 Geo. IV, c. 29, s. 47 as the course of business was evidenced that in addition
to his duties as secretary he was employed by the trustees as their servant to receive
such monies on their behalf (p). Where an accused, who was in the service *>f

(g) Stuart , (1894) 1 Q. B. 310. *

(h) Moss, (1894) 16 A. 88.

(i) Gulabmiya Dagumiya, (1930) 32 Bom. L. R. 1134 : A. I. R. (1930) Bom.

487.

(j) Foulkes , (1875) L. R. 2 C. C. R. 150.

(k) Karimuddin, (1918) 40. A. 565 : 16 A. L. J. 569 : ID Cr. L. f. 967 : 47 I. C.

367. t.

(l) Preonalh Chaudhury, (1902) 29 C. 489 ; Ini ad Khan, (1885) 8 A. 120.

(m) Bhaklakhanda, (1928) 63 B. 119: 30 Bom. L. R. 1530 : A. I. R. (1928)
B. 557 not following Mohan Singh, {1920)ySi2l'A. 522.

(n) Pyoji, (1919) 10 L. B. R. 31 : 12««fcL. T. 58 : 20 Cr. L. J. 613: 51 L C.
673, following Winnall, (1851) 5 Cox. C. C. 326.

(o) Banee Madhab Ghose, (1867) 8 W. R. (Ct.) 1.

(p) Hastif, (]863) 32 L. J. (M. C.) 63* * .

SEC. 408 ] OF CRIMINAL BREACH OF TRUST 783

zemindars and whose duty it was to pay revenue to the collectorate, received from
the zemindars a certain sum with no specific instructions as to its application and
paid only a portion of the money to the collectorate and then altered the chalan
showing that he had paid more money and was charged under Ss. 408, 407 and 481 ,
it was held that there was dishonest misappropriation of the difference to con-
stitute the offence under s. 408, and further held that he abetted the forgery of
the chalan and was properly convicted under all the sections except forgery (q).

A user of property comes within the definition of the offence when such user
causes substantial or appreciable loss to the owner of the property or gain to the
accused (r).

* or with any dominion over property 9 The conduct of a water-works
inspector in misappropriating municipal water and in realising money from his
tenants on account of water tax and misappropriating that money to himself
clearly falls within this section as he had dominion over the water belonging to the
municipality (s), but where the vice-president of a municipality received com-
mission from a firm on the purchase of goods made by the municipality, he was
acquitted of the charge under s. 409 and the appeal by the Local Government was
dismissed because the commission was paid to him personally (t).

Actual conversion not necessary to constitute the offence : — It has been
held in Dinas case (u) that actual conversion is not necessary. To constitute the
offence the intent or the mental act was the gist. There a tonga-driver was con-
victed under this section. He was engaged as a driver on a monthly salary of Rs. 1 5
to drive the tonga of his master in hire within the limits of Ludhiana Municipality
and he was to bring the tonga back each evening and pay over his earnings, but
he did not return on the evening of the day of occurrence. The Sessions Judge
acquitted him ; on appeal to the Local Government the order of acquittal was
set aside.

Failure to deposit money realised Where the petitioner had executed
a kflbuli yat in favour of the Government for granting fees in which theie was a
stipulation that if there be default in the Government should be competent
to realise the same from him or his surities, held , it was not open to the
Government to prosecute the petitioner of criminal breach of trust (v).

Retaining money for fifteen months ' The retention of money by a
servant or clerk for fifteen months after its receipt raises a very serious doubt of
bona fides against him, but the mere retention is not conclusive proof of criminal
misappropriation or criminal breach of trust (w).

Taking goods on approval under agreement to pay cash— sale before
such payment : — When a person takes goods on approval under an agreement
that property therein was to pass only if he exercised his option to take them and
Pj$id cash in full for his certain articles and in part for others, held, the trust con-
tinuertill the option is exercised and cash payment made, and he commits criminal
breach trust if he sells them without such payment (x).

Claim of right — good defence : — Where the complainant made over a pair
of diamond bangles and 2 other ornaments to a goldsmith to sell on her account

(q) Lalit Mohan Ghose, 22 C. 313.

(r) Keshub Chandra Boral v. Nityananda Biswas, (1901) 6 C, VV. N. 203 (206)

(s) Bimala Charan Roy , (1913) 36 A. 361.

(t) U . Moung Gale , (1926) 4 R. 128.

(u) (1925) 6 L. 267, following RMrafr, 36 P. R. (Cr.) 1889, Rex. v. Williams
7 C. and P. 338 and Lynch , (1864) 6*58*: C. C. 445.

(v) * Nripendra Nath.Das, (1927) 47 C. L. J. 442.

(w) Mathura Prasad , (1916) 18 Cr. L. J. 655: 40 I. C. 303.

(x) Kailash Chandra Deb Roy , (192*) 51 C. 796.

784

THE INDIAN PENAL CODE

[CHAP. XVII

in order to raise money required by her for the purchase of a house and instead of
selling, the accused goldsmith pledged the ornaments to a money-lender, and the
Magistrate convicted the accused for criminal breach of trust and ordered the
return of jewellery, it was held that the Magistrate was not justified in ordering
the return of the jewellery in the absence of bad faith on the part of the accused (y).

Servant making false representations is guilty : — Where the accused,
as the servant of a firm, obtained various sums of money from the manager of
the firm at various times by false representations that they were required for pay-
ing coolies but could not account for them afterwards, the Madras High Court
held that the accused was guilty under this section (z).

409# Whoever, being in any manner entrusted with property,
...... . , or with any dominion over property in his

trust by public servant, capacity or a public servant or m the way or
or agent 111 ^ cr> merchaftlt his business as a banker, merchant, factor,
broker, attorney or agent, commits criminal
breach of trust in respect of that property, shall be punished with
transportation for life, or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable
to fine.

Scope: — This section applies to persons entrusted with dominion over
property in the capacity of public servants (a).

This section cannot properly be construed as involving that any head of an
office, who is negligent in seeing that the rules about remitting money to the treasury
are observed is ipso facto guilty of the offence of criminal breach of trust ; but some-
thing more than that is required to bring home the dishonest intention, which is one
of the essentials of the offence. There should be some indication which justifies
a finding that the accused definitely had the intention of keeping the Government
out of the monies ; and ordinarily that would be shown by seme overt act, which
went beyond mere retention of money then should have been remitted to the
treasury (b). P

Procedure : — Cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

To sustain a conviction under this section the prosecution must prove the
elements requisite to constitute the offence and when the charge is that an accused
as a public servant in the employ of the Customs Department committed breach of
trust in respect of 34 bags of peacock feather over which he had dominion as such
public servant there must be clear evidence that the condition of the bags when
they were found by the police was the same as it was when they were in charge of
the accused (c). r

Prosecution proving receipt of money —Burden on accused to prove
non~conversion : — Where the prosecution has proved the receipt by the accused
of the several amounts, it is for the accused to show that he had not converted them
to his own use (d).

(y) R. M. P. A. Annamali Chetti v. Jiasch, (1021) 11 L. B. R. 217 : 23 C'r. L. J.
210 : 65 I. C. 1000 : A. I. R (1922) L. B. 17.

(z) In re Thcophilus Ramappa , (1911) .22 J#» L. J. 112 : 10 M. L. T. 617 : 13

Cr. L. J. 15 : 13 I. C. 108.

(a) Banee Mudhub Ghose, 8 W. R. (Cr.) 1.

(b) Lola Reoji Mohala, (1928) 30 Bom. L. R. 624.

(c) 1. G. Singleton, (1924) 29 C. W.«N. 260.

(d) Hemendra Kumar Ghose , (1928) 45 C. L. J. 207; Dewasi Khamani A sari,*
(1925) 23 M. L. W. 7l8 ; 95 I. C. 943 : A. I. R. (1926) M. 727.

sec. 409 ]

OF CRIMINAL BREACH OF TRUST

785

Autrafois acquit An acquittal on a charge under this section, of criminal
breach of trust of a certain sum of money committed between two specified dates,
docs not bar a subsequent trial for crimianl breach of trust, committed on an inter*
mediate date, of a separate sum which was not included in the amount of the subject
of the first trial (e).

Where the accused, the servant of a municipality, was tried under this section
in respect of embezzlement of Rs. 19 and found guilty and the Sessions Judge
quashed the conviction on the ground of the acquittal of the accused at a previous
trial where he had been tried under s. 409 in respect of Rs. 12 alleged to have been
misappropriated during the same period, the High Court of Bombay set aside that
order holding that where there have been defalcations in respect of different items,
in the course of twelve months, then the Court can try a man in respect of three
offences by selecting different items, combining these items into one lump sum and
making the selection so as to get at three sums, the appropriation of each constituting
an offence by itself, and held further that s. 222, Cl. (a), Cr. P. Code, modifies that
rule as to charges of criminal breach of trust, etc., but does not restrict in any way
the scope of s. 234, Criminal Procedure Code (0.

Effect of acquittal of a conspirator in a subsequent trial Mookerji,
J., has recently held : “ Regarding the acquittal of a conspirator in a sub*
sequent trial, it is now settled that it forms the ground of reversal of a con*
viction of one tried before ; on the other hand, the conviction of the latter is a
perfectly good one at the time that the judgment is pronounced against him, and
all the legal consequences of a valid conviction follow from it. As for the principle
relating to the acquittal of a conspirator following from the acquittal of the other
when the conspiracy is alleged only amongst the two and in a joint trial held in
respect of both, it is based upon rule of practice and procedure, which under the
English law appears to be well-settled, that repugnancy or contradiction on the
face of the record is a ground for arresting judgment or annulling a conviction, and

h a ground on which the accused can claim an acquittal It

has been held by this Court that repugnancy in the verdict of Jury in this countiy
is not by itself a sufficient ground for quashing a comiction, and there is no provi*.
sion in the Code justifying interference with a conviction on the ground of repug-
nancy in the record The acquittal of a conspirator in a subse-

quent trial has no effect so far as the other conspirator is concerned beyond suggest-
ing that some of the evidence upon which the latter was convicted, was in a
different trial of another accused person, found to be unworthy of acceptance. If,
on the merits, it is established that the evidence against the convicted conspirator
was weak or there were inherent improbabilities or infirmities in the case against
him, then perhaps it may be taken into consideration that the same witnesses were
disWieved— if it is sure that they were actually disbelieved in a subsequent
trial " (g).

.Abetment : — Where the offence of embezzlement was complete, subsequent
help to real offender to conceal embezzlement does not amount to abetment (h).

Punishment : — A sentence of rigorous imprisonment is obligatory ior an
offence under Ss. 409 and 420. When a lambardar is convicted for pocketing the
water-rate as an agent of the Government from the complainant he ought not to be
dealt with under $• 562, Cr. P. Code (i).

Nagendra Nath Bose , 50 C. 032 : 27 C. W. N. 578 : 25 Cr. L. J. 156.
Kashinath Bagaji Sali t (1910) 12 Bom. L. R. 226 : 11 Cr. L. J. 337 : 5 I. C.
970 Sat Narain Tewary, (1906) 32 C. 1086.

to) J. G. SingMon. (1924) 29 C. W. N. 200 (200. 207, 208) : 41 C. L. J. 87.
h) Pritchand.fA. I. R. (1928) Lah. 382 (390) : 30 Cr. L J. 18
(i) Sahan Singh, (1920) 27 Cr. L. J. 602 : A. I. R. (1928) Lah. 330.

56

786

THE INDIAN PENAL CODE

[CHAP. XVII

Charge !— Where the amount composed of four different sums payable in
respect of four different holdings was realised at the same time and for which one
receipt was granted by the petitioner for the whole amount, held that the charge
did not contravene the provisions of s. 234, Cr. P. Code (j).

“ S. 233 must be strictly followed save and except where the law itself pro-
vides an exception and the joinder of three, charges under s. 409, and three
charges under s. 477-A is not covered as was pointed out in the Madras ruling, 30
M. 328, by any of the exceptions provided in the subsequent sections of the
Code" (k).

Form of charge : — I ( name and office of Magistrate , etc.) hereby ch&rgeyou
(name of accused) as follows : —

That you, on or about the-; day of — , at ,

being in any manner entrusted with property to wit , (or. with any

dominion over property to wit ) in your capacity of a public servant

to wit , (or in the way of your business as a banker or merchant or

factor or broker or attorney or agent) committed criminal breach of trust in respect
of that property, and that you thereby committed an offence punishable under
s. 409 of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried by me (or by the said Court) on the said
charge.

Sanction — is necessary for the prosecution of a Municipal Councillor but
where the accused who was a Vice-Chairman of a Municipality had received certain
commission from a firm on the purchase of certain goods made by the Municipality,
the commission having been paid to him personally, held , there was no trust and the
accused was not guilty of offence under this section (1).

The prosecution must establish —

(1) Criminal misappropriation by an agent, etc.;

(2) Dishonesty or fraud on the part of the accused in order to prove a charge

under this sectiom (m).

There must be distinct proof of criminal misappropriation before the prisoner
can be convicted under this section. Mere retention of money in the absence of
dishonesty does not amount to criminal breach of trust (n). Prosecution must
prove that money was paid in trust and that it was not so applied (o).

Place of trial : — Where a commission agent in Calcutta of a limited company
in Allahabad was charged in a Magistrate’s Court in Ahmedabad with having com-
mitted an offence under this section in respect of sale proceeds of certain bales of
goods and was arrested in Calcutta by a C. 1. D. Officer of Poona under the provi-
sions of s. 54, Cr. P. Code, it was held that the charge was triable only in
Calcutta where the alleged offence was committed (p). An agent whose duty
it is to remit moneys and render periodical accounts to the Head Office commits the

(j) Hemendra Kumar Chose , (1928) 45 C. L. J. 207 : A. I. R, (1927) Cal. 409.

(k) Raman Behari Das t (1913) 41 C. 722 (725) : 18 C. W. N. 1152 : 15 Cr. L. J.

163, following Kashi Viswanathan, (1907) 30 M. 328 referred to in ManantK . Mehta .
(1925) 27 Bom. L. R. 1343; Profulla Chandra Khar ghoria. (1930) 34 C. W. N. 925.

(l) Mahammed Isnait v. Kanshi Ram , (1927) 8 L. r 647 see C/, Manj Sate , (1926)
4 R. 126.

(m) Daulat Rai, P. L. R. No. 164 of 1915 : P. W. R. No. 25 of 1915 : 16 Cr. L. J.
443 : 29 ' C. 75.

(n) ala Raoji Mahale, (1928) 30 Bom. L. R. 624.

(o) Pritchard. A. I. R. (1928) Lah. 382 : 30 Cr. L. J. 18.

(p) Dwarkadas Haridas v. Amhqfal Ganpitram, (1924) 28 C. W. N. 850.

SEC. 409 ]

OF CRIMINAL BREACH OF TRUST

787

offenceat that place, if he fraudulently misappropriates the funds having omitted
to remit them and account for them. To hold that the principal must ascertain
the place where the agent actually made use of his moneys (q). In Gobindrams
case (q), Ramratans case (r) was followed and Luxmans case (s) was distinguished.
In Luxmans case (s) it was held that even if the property is received quite properly
and innocently at one place and is subsequently dealt with at another place dis-
honestly by the accused, he can be tried at the place where he received or retained
the property.

Property here refers to moveable property. Standing teak tree is immoveable
prroerty and a Forest Officer cannot be convicted under this section in respect of
embezzlement of standing teak trees (t).

Property : — Property paid to a public servant ceases to be the property of the
persons who paid them (u).

* In his capacity of a public servant Public servant is defined in s. 21,
supra .

To convict a public servant under this section it is sufficient to prove that
he received the money in his capacity of a public servant and it is not necessary to
show that the money is the property of Government (v).

This section does not limit the mode in which a trust arises, whether by specific
order or by reason of its being part of the duty of a public functionary. Where
therefore it was proved that in his capacity as Nazir, accused was entrusted with
certain stamps and being so entrusted he committed criminal breach of trust in
that he made away with the stamps, he was held to be guilty under s. 409 (w).

Where a clerk in a record room passed out, through a hole in the netting
protecting one of the windows, a document forming part of a record in his
custody, to a person who was entitled to the document but who would have to
present an application on stamped paper in order to get a return in a legal manner,
the Allahabad High Court held that the clerk was rightly convicted under this
section (x).

Where a Court Inspector improperly delegated to a constable the custody of
Government moneys and the constable dishonestly converted the money to his own
use although he afterwards restored it, # the case was held to fall under s. 408 as the
constable was a servant of the Court Inspector under a special trust and his offence
did not come under this section (y). Where a constable dishonestly misappropriated
to his own use the payment of the salaries of the officers of a police out-station,
it was held that he was guilty of criminal breach of trust and his conviction under
this section was altered to one under s. 406 (z). A petty officer of the Salt Depart*
ment who was empowered to sell salt at the reduced rates to fish-curers and was
directed to enter the sales to such person by departmental orders in the Government
books but who really bought some salt for himself at the reduced rates entering the

(q) Gobindram Jashanmal, (1927) 29 Cr. L. J. 1033 : 112 I. C! 361 : A. I. R.
(1928) Sind. 160 see also Sunado Dhone v. Lola Santi Prokash Nandy, (1924) 29
C. W. N. 432 : 41 C. L. J. 80.

(r) Ramratan Chinilal , (1921) 46 B. 641 : 24 Bom. L. R. 46: A. I. R. (1922)
Boro. 39.

(s) Luxaman, (1926) 51 B. 101 : 28 Bom. L. R. 1292: 28 Cr. L. J. 44.

(t) Brindabon Patnaik. (1866) 6 W. R. (Cr.) 21.

(u) Jawala Prasad, (ft 84) 7 A. 174 (177, 178) F. B.

(v) Ramsoondar Poddar, (1878) 2 C. L. R. 516 not followed in Rtnguswami
A yy anger, (1888) 1 Weir 466 (467).

' (w) Ramdhan Dey, (1870) 13 W. R. (Cr.) 77.

(x) Ganga Prasad, (1904) 27 A. 260.

(y) Banee Madhdb, (1867) 8 W. R. (Cr.) 1.

(*) Subdar Meah, (1865) 3 W/R. (Cr.) 4|,

788

THE INDIAN PENAL CODE

[CHAP. XVII

sales in the Government books and misappropriated the difference, it was held
that he was guilty of an offence under this section (a). The Patna High Court
has recently held in a case where the Writer Head Constable^ who was entrusted
as a public servant with Government funds for the purpose of building some quarters
at the police station obtained the materials free of cost from somebody and ap-
propriated a certain amount to himself that the accused was guilty under this
section (b). Where the accused, a cattle-pound keeper, having levied Rs. 5 for
five buffaloes in his charge, gave a receipt for Rs. 4 in his account before^ the money
was paid into the treasury, altered his accounts and entered Rs. 5, it was held
that the conviction should have been under Ss. 409/511, (c). But though a
erson may have no jurisdiction to act in a particular transaction, still in drdefto

• « t i • . • i .1 i • .1 . •. / 1\

mm

YJTSrJil

Where the accused was convicted under this section for small sums of money
embezzled by him which it was his duty as patel to pay over as temple allowance,
the Bombay High Court held that the accused having fulfilled the trust reposed in
him and that he having. retained the money for a time, in the absence of any evi-
dence of dishonesty, his act did not amount to criminal breach of trust within
the meaning of this section (e).

Where a municipality undertakes to collect all night-soil and refuse from private
houses, through the instrumentality of the customary sweepers, the accused. Sani-
tary Inspector, whose duty it was to see that work of transport done, sold three
cartloads and pocketed the money, the Allahabad High Court held that the accused
was rightly convicted under s. 409 (0.

Where the accused was entrusted by the Superintendent of the Health Depart-
ment to destroy rice and who instead of destroying it sold the same to a third party
and retained the proceeds of the sale, it was held that the accused did not commit
the offence under this section (g). Where accused, the kemam of a Govern-
ment village, realised moneys from certain ryots and misappropriated the money
so received, it was held that he was not guilty under this section (h).

Postmaster,— V. P. articles Where the accused a Sub-Post-master
received V. P., letter to be delivered to the consignee on payment of the V. P.
amount and he handed over the same to the consignee without getting payment
on or before 20th October, 1925, and then altered his accounts so as to make it
appear that he only handed over the letter on 24th October, 1925, held that the
accused had been rightly convicted of criminal breach of trust and falsification of
accounts (i).

Banker : — Jessel, M. R., held that “ banking is not strictly a trade ” (j).

Under the Larceny Act (24 and 25 Viet. c. 96) of 1861, it is for the jury to
decide whether a person is a banker, merchant, broker, attorney or other agent (k).

a person is a banker, merchant, broker, attorney or other agent (k).
ful whether money deposited in the Bank by its customers and not

It is doubti

(a) Balaya, (1803) 1 Weir 467 (468).

(b) . Saiyid Mohotnedden, (1924) 6 P. L. J. 154: A. I. R. (1025) Pat 414*
Sitaram, (1919) 42 A. 204 : 18 A. L. J. 93 : 21 Cr. L. J. 316: 55 I. C. 475 '

(c) Bhula, (1893) Rat. Unrep. Cr. C. 632.

(d) 4 M. H. C. R. (App.) 32.

(e) Ganpat Tapidas, (1885) 10 B. 256.

(f) Hotilal ’ (1922) 45 A. 281 : 21 A. L. J. 149 : 25 Cr. L. J. 299 : 76 I C 971 s

A. I. R. (1023) All. 480. J

(g) Wilkinson, (1888) 2 C. W. N. 216.

(h) Rangaswami Ayyangat, (1888) 1 Weir 466.

(i) In re. Kandasami Aiyer, (1026) 52 M. L. J. 703.

(j) Smith v. Anderson , 15 Ch. D. 250.

(It) Bower man # 1 Q. B. 112.

SEC. 409 ] OF THE RECEIVING OF STOLEN PROPERTY 789

in any way ear-marked* could, after such deposit, be regarded as " property " of
the depositors (I).

Manager of Bank — deceiving share-holders as to profits — is guilty under this
section : — Where the manager of a Bank being entrusted with the property of the
Bank dishonestly used and disposed of some of the property, namely, Rs. 300,
which was not really profits contrary to Articles of Association of the Bank causing
the share-holders by deception to declare a dividend larger than the profits warrant-
ed, the Punjab Chief Court held that the accused was guilty under this section (m).
If is not necessary that the accused must have actually taken tangible property,
such as, cash from the possession of another to his own use. A dishonest transfer
of an account from the account of another person to the account of the accused
person may amount to criminal misappropriation (n).

Factor : — “ Factor is a substitute in mercantile affairs ; an agent employed
to sell goods or merchandise consigned or delivered to him by or for his principal,
for decompensation commonly called factorage or commission *’ (o). Chief Baron
Pollock says : “ As soon as it appears to be a breach of a party's business to sell the
goods of others on commission, that establishes him to be a factor ” (p). An agent
who is entrusted with the possession of goods for the purpose of sale, does not
lose his character of factor, or the right of lien attached to it, by reason of his acting
under special instructions from his principal to sell the goods at a particular price
and to sell in the principal's name (q).

Agent : — Where the owner of a sewing machine gives it to an agent to be sold
for money and the latter pledges it, held that it is not open to a criminal Court to
deliver possession of the machine to the owner on the ground that the agent had
exceeded his authority (r).

Wilful detention of money by servant : — Where it is a servant's duty to account
for and pay over the monies received by him at stated times, his not doing so,
wilfully amounts to embezzlement (s).

0 / the receiving of Stolen Property.

" The receiver of stolen property though not strictly a participator in the
offences by which the property has been acquired, facilitates the commission of
that offence or at least renders its detection more difficult, by aiding the thief in the
disposal of the property. But the Code does not treat receiver as an accessory or
abettor, or as an offender against public justice. It makes the offence of receiving
stolon property a substantive offence, and punishes the receiver, not always as it
punishes the principal offender, but with a punishment more or less severe accord-
ing to circumstances" (t).

(l) Moss, (1893) 16 A. 88

(m) Daulat Rai , (1915) P. L. R. No. 167 of 1915: P. W. R. No. 23 of 1915:
P. R, No. 28 of 1915 : 16 Cr. L. J. 473 : 29 I. C. 105, distinguishing Rashbekary Das ,
(1908) 35 C. 450 : 12 C. W. N. 581 : 7 Cr. L. J. 378; Jyotish Chandra Muhherjee,
(1909) 36 C. 955 : 14 C. W. N. 82 : JO Cr. L. J. 58 : 4 I. C. 416.

(n) Ramchandra Gowala , (1926) 27 Cr. L. J. 1383 : 98 I. C. 599 : A. I. R. (1926)
Lah. 385.

(o) Wharton, Law Lesieon, 11th Edn., p. 343.

(p) Whitfield v. Brand , 18 C. B. (N. S.) 467.

(q) Stevens v. Biller, (1883) 25 Ch. D. 31 (34).

(r) Singer Sewing Machine Co. v. Yen Kan, A. I. R. (1923) Rang. 68 ; Annamal
Chetty v. Mrs . Bosch, (1921) 23 Cr. L. J. 216 : 65 I. C. 1000 : A. I. R. (1922) L. B. 17.

(s) Chandra Prosad, (1926) 5 P. 578: 27 Cr. L. J. 611 : A. I. R. (1926) Pat.
299

(t) Morgan and Macpherson, " Penal Code, ” p. 370.

790

THE INDIAN PENAL CODE

[CHAP. XVII

410 . Property,* the possession whereof has been transferred
. by theft, or by extortion, or by robbery, and
property which has been criminally misap-
propriated or in respect of which criminal breach of^ trust has
been committed, is designated as “ stolen property, ” [whether
the transfer has been made, or the misappropriation or breach
of trust has been committed, within or without British _ India].
But, if such property subsequently comes into the possession off, a
person legally entitled to the possession thereof, it then ceases to
be stolen property.

Possession — s. 27.
Theft — s. 378.
Extortion — s. 383.

Criminal misappropriation — s. 403.
Criminal breach of trust — s. 405.
British India— s. 15. *■

Robbery — s. 390.

This section explains what is designated as 1 stolen property.'

Legislative changes : — The words " whether the transfer has been made
or the misappropriation or breach of trust has been committed within or without
British India were inserted by the Amending Act of 1882 in consequence of the
defect pointed out in Moorga Chetty's case (u).

Analogous law The corresponding provision of the English law is 24 and
25 Viet. c. 96, s. 95 of which runs as follows : —

" Whosoever shall receive any chattel, money, valuable security, or other property
whatsoever, the stealing, taking, obtaining, converting, or disposing, whereof is made
a misdemeanour, and may be indicted and convicted thereof, whether the person
guilty of the principal misdemeanour shall or shall not have been previously convicted
thereof, or shall or shall not be amenable to justice and every such receiver being
convicted thereof, shall be liable at the discretion of the Court to be kept in penal
servitude for any term exceeding seven year*. . . .or to be imprisoned, if a male under
the age of sixteen years, with or without whipping."

Whether the transfer has been made or the misappropriation or breach
of trust has been committed within or without British India t — Where the
accused had stolen cattle in the kingdom of Nepal but was found i ^possession of
them in British Territory, the Calcutta High Court held that the accused cduld not
be tried for theft in a British Court but could be convicted under s. 41 1 (v). It
may be pointed out that Sankcnr's case (v) is no longer good law. The Bombay
High Court in another case where the accused, a subject of a Native State,
committed tfyeft within British Territory at Rajkot and was found in possession
of the stolen property at Thana, held that Rajkot was not a part of British
India and as the offence was not committed in British India, the Session Court
of Thana had no jurisdiction to try the accused for theft but it was competent
to try him for dishonest retention of stolen property under this section (w).
Where the accused was found in possession of stolen articles at a place outside
British India, but the accused was placed on his trial before the Court in British
tributary having jurisdiction over the place where the theft took place, held that the
Britis Courts had no jurisdiction (x).

(u) (1881) 5 B. 838 (F. B.). . .

(v) Stinker Gope, (1880) 6 C. 307, following Adivigadu , 1 M. 171 and Lahhy *

GovindA 1875) 1 B. 50. «

SEC. 411] OF THE RECEIVING OF STOLEN PROPERTY 791

But if such property subsequently comes into tbe possession of a person
legally entitled to the possession thereof, it then ceases to be stolen property :

— This clause is in accordance with the English law, for in England property
“ ceases to be stolen or otherwise improperly obtained as soon as it comes into the
possession of tbe general or special owner, and if such general or special owner
delivers it to some one who delivers it to a person who receives it knowing of the
previous theft or other obtaining such a receiving is not an offence within the
article** (y).

If stolen goods are restored to the possession of the owner, and he returns
them to the thief for the purpose of enabling him to sell them to a third person,
they are no longer stolen goods, and that third person cannot be convicted of
feloniously receiving stolen goods, although he received them believing them to
be stolen (z).

411 * Whoever dishonestly receives or retains any stolen

bishonestiy receiv- property, knowing or having reason to believe
ing stolen property. the same to be stolen property, shall be
punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.

Procedure : Cognizable Warrant Bailable Not Compoundable

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class — Triable summarily if the value of the property stolen does not
exceed rupees fifty.

Under the Code of Criminal Procedure persons accused of an offence which
includes theft, extortion or criminal misappropriation and persons accused of
receiving or retaining or assisting in the disposal of concealment of property, pos-
session of which is alleged to have been transferred by any such offence committed
by the first named persons, or of abetment of or attempting to commit any such last
named offence may be jointly tried (a).

Jurisdiction Subject of Native State retaining property . — A subject of the
Native State, who is guilty of retaining stolen property within the Native State, is
not liable to be punished under the Code (b).

Place of trial r— A charge of receiving or retaining stolen goods may be
inquired into or tried either by the Court within the local limits ot whose juris-
diction any of them were at any time dishonestly received or retained (c).

Separate sentences : — See commentary on s. 71, supra .

The theft and the taking and retention of stolen goods form one and the same
offence and cannoi be punished separately (d). Where the accused was convicted
of dacoity and was separately sentenced under s. 412 the Calcutta High Court set
aside the conviction and passed sentence under s. 412 (e). A person convicted

(w) Abdul Latib Valad v. Abdul Rahiman, (1885) 10 B. 186.

(x) Maheswari Prosad Singh , (1914) 18 C. W. N. 1178 : 15 Cr. L. J. 537 : 24
I. C> 945.

(y) Steph. Cr. L. 28$ cited in Stroud’s Judicial Dictionary, p. 1680.

(z) Thomas Dolan, (1855) 6 Cox. 449, followed in Schmidt , (1866) L. R. 1 C. C. R.
15 and Villensky , (1892) 2 Q. B. 597.

(a) S. 239 of the Criminal Procedure Code.

(b) Gunna, (1926) 48 A. 687, following Kirpat Singh, (1887) 9 A. 523.

( c ) . S. 180, ill. (5), Criminal Procedure Code, Abdul Gani,

(d) Sreemunt Adup, (1865) 2 W. R. 63.

(e) Seeb Churan Haree , (1869) 11 W. R. (Cr.) 12.

THE INDIAN PENAL CODE

792

[CHAP. XVII

under this section and s. 4J I can be sentenced to consecutive periods of imprison-
ment (0.

Distinction between Ss. 411 and 414 When receipt or retention, not
necessarily for disposal is dishonest, s. 41 1 is th< appropriate section. If, # on the
other hand, dishonest receipt or retention cannot be proved but only dishonest
concealment or disposal, s. 414 is more appropriate (g).

Ss. 411 and 413 cannot be jointly tried : — Prisoners cannot be tried at the
same trial for receiving or retaining (s. 41 1) and habitually receiving or dealing in
(s. 41 3), these two offences not being offences of the same kind (h). >

Charge to the Jury : — The Jury ought to be told the circumstances that are
deposed to by witnesses — whether such omission is a misdirection depends upon
circumstances (i). In a charge to the Jury, a Sessions Judge must draw pointed
attention where a considerable time has elapsed between recovery of stolen property
from the person who had been put in possession and theft. But where the Judge
failed to draw their attention when the tinv elapsed was between 22nd September
and 4th October, held , it was not an omission of any importance (j). It has-been
held in Mothu Vcera V atari s case (k) whether possession is recent is a matter for
the Judge.

Where the Sesisons Judge in his charge to the Jury ask'd them to decide
whether the property was stolen, and whether it was retained by the accused, the
Bombay High Court held that it amounted to a misdirection. The Sessions Judge
should have summed up all the evidence in the case and directed the Jury that
before they could find the accused guilty under s. 41 1 it was necesrary for them to
find in the affirmative (I) that the property was stolen, (2) that it was dishonestly
retained and (3) that the accused knew or had reason to believe the same to be
stolen property (1).

Where property sufficiently identified to be the property of one person is found
to be in possession of another person without leave or license or any legal
permission of the owner, it is for the party in whose possession the property is
found duly to account for its possession and unless he can do so a jury might
fairly infer in such circumstances that it was with a guilty knowledge that the
prisoner took that which he knew to be not his own (m).

Where in explaining s. 114, illustration (a) of the Evidence Act, the Judge
charged the Jury that “ when it is proved, or it may be reasonably presumed , that the
property in question is stolen property, the burden of proof is shifted and the possessor
is bound to show that he came by it honestly , and if he fails to do so, the presumption
is that he is the thief or receiver according to circumstances, and that if the Jury
find that the accused have failed to account for their possession, then they may
presume that they have come dishonestly by stolen property,*' it was held to be a
misdirection (n).

Under the English law it is a presumption of fact, and not an implication of law,
for evidence of decent possession of stolen property unaccounted for, whether the

(f) Hamma Timma Bhandiwaddar , (1928) 30 Bom. L. R. 383 : A. I. R. (1928)
Bom. 140.

(g) Abdul Gani, (1920) 49 B. 878: 27 Bom. L. R. 1373: 27 Cr. L. J. 114:

A. I. R. (1926) Bom. 71. J

(h) In re UttomKundu , 8 C. 634.

(i) Sreemunt Adup t (1866) 2 W. R. 63.

(j) Mayandi Tevan , (1929) M. W. N. 577.

(k) (1929) M. W. N. 517.

(l) Balya Somya, (1890) 15 B, 369.

(m) Sheruffooddeen, (1870) 13 W. R. (Cr.) 26.

(n) Satya Charan Monna , (1924) 52 C. 223, following Hathem Mondal , (1920)
24 C. W. N. 619, followed in Bhutnath Mendal, (1930) 35 C. W. N. 291.

SEC; 411 ] OF THE RECEIVING OF STOLEN PROPERTY 793

offence of stealing, or of feloniously receiving, has been committed ' (o). The
Bombay High Court has held that the attention of the J&ry should be directed to the
necessity of their being satisfied that the possession of the stolen property was
clearly traced to the accused (p).

Trial by Jury— Conviction for an offence triable by Assessors s— Where
an accused person is tried by a Jury for an offence punishable under ?. 412, it is
competent to convict him for an offence under s. 41 1 (which is triable only with
the aid of assessors) even though no separate charge under s. 411 had been framed
at the trial (q).

Charge : — The charge should state that the articles found in the prisoner’s
possession was property stolen from AB the owner thereof (r).

The Calcutta High Court by a circular directed that the charge should set
forth that the accused knew or had reason to believe that the property he received
was stolen property (s). A charge under this section of having received six specific
animals belonging to five specific persons and stolen by five different acts of theft
is illegal and wholly vitiates the trial (t).

Where the appellate Court altered the charge under this section to one under
s. 457 and found the accused guilty under s. 457, the Allahabad High Court held
that the charge could not be so altered as to make it necessary for an accused to
meet an absolutely different case from that with which he was so charged and
acquitted the accused (u).

Autrofois acquit ; — Trial in respect of one item bars separate trial
in respect of others (v). Where there is no evidence that articles stolen from a
several persons were received on different dates, held , the dishonest receipt of the
same is a single offence under this section, and a person tried on a charge there-
under, in respect of the retention of some of the articles on a certain date, cannot be
tried on a similar charge in respect of other articles of which he was in possession
on such date (w). An acquittal of offence under Ss. 380 and 41 1 charged in the
alternative bars subsequent trial for an offence under s. 54-A of the Calcutta Police
Act (Beng. Act IV of 1866) in respect of the same act, or series of acts, which
formed the subject of the previous trial (x). The Common Law plea of autrofois
acquit, based on ground of public policy shields a man from being put twice in
peril for the same offence. Counterfeiting an a kuk mar k on stolen timber and
converting timber at a saw pit without license are offences connected with dis-
honest receiving of timber. A person acquitted of such charges under the Burma
Forest Act, ought not to be prosecuted again under the Indian Penal Code for
theft and dishonest receiving of stolen property (y). But it has been held that
the previous acquittal of A and B co-accused under s. 380 was no bar to the
subsequent trial of C who was also an accused in the case under s. 380, where
certain additional facts before the Court were ascertained subsequent to the trial
which supported the charge under this section (z).

(o) Langmead , (1864) 9 Cox. 464 ; Matmahone , (1876) 13 Cox. 276.

(p) Malhari , (1882) 6 B. 731 (732).

(q) Gulabchand Desaji, (1926) 27 Bom. L. R. 1416.

(r) Sidden Balnath , (1863) 1 B. H. C. R (Cr. C.) 95.

(s) (1866) 4 W. R.'(Cr. L.) 11.

(t) Hyder, (1924) 20 S. L. R. 3 : 91 I. C. 64 : A. I. R. (1921) Sind 129 ; Jahtl
A.I.R. (1933) Lah. 468.

(u) Mulla, (1926) 23 A. L. J. 924 ; see Dunki Ram . A. I. R. (1933) Oudh

316, where held, conviction cannot be had for an offence under s. 411 when charge

under s. 302 had failed and accused was not charged under s. 411 .

(v) Bisken Singh , (1924) 3 P. 603.

(w) Ganesh Sahu t (1923) 60 C. 594.

(x) Manhari Choudhurani , (1917) 45 C. 727 : 27 C. L. J. 434: 22 C. W. N.
199: 19 Cr. L. J. 198.

(y) # YlokKuk , (1928) 6 R. 386: A. I. R. (1928) Rang. 252; In re . Pundalik ,

(1924) 26 Bom. L. R. 440 : A. I. R. (1924) $om. 448.

(z) Deputy Legal Remembrancer v. Haiim Molla, (1906) 10 C. W, N. 1031.

794

THE INDIAN PENAL CODE

[CHAP. XVIt

Recovery: — Subject of. theft — acquittal — When the accused is acquitted of a
charge of theft and the property found with him is not found to be the subject
of theft, he is entitled to recover the property ; but if the property found with him
is the subject of theft, the stolen thing will not be delivered to him, his acquittal
being due to the incompleteness of evidence (a).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge
you (name of accused ) as follows : —

That you, on or about the day of— , at — ,

dishonestly received (or retained) stolen property to wit , belonging to XY ,

knowing (or having reason to believe the same to be stolen property) and that you
thereby committed an offence punishable under s. 41 1 of the Indian Penal Code,
and within my cognizance (or within the cognizance of the Court of Session or
the High Court).

And 1 hereby direct that you be tried by me (or by the said Court) on the said
charge.

Sentence — see Reformatory Schools Act, s. 31, quoted in the Appendix.

Essential ingredients of the offence under this section : — In order to
constitute an offence under this section it is necessary to establish —

(1) that the property in question was stolen property ;

(2) that it was dishonestly received or retained ; and

(3) that the accused knew, or had reason to believe that it was stolen
property (b).

Property in question— stolen property The matter received or retained
must be stolen property as mentioned in s. 410 and which has not been abandoned
by its owner. Where a bull had been set at large by some Hindus in accordance
with Hindu religious usage at the time of SradK it was held that the bull being
' nullius proprietas * was not ‘ property ' and as such a person should not be
convicted under this section for receiving such bull (c).

Money obtained upon forged handnotes is not * stolen property ’ within the
definition given in s. 410, supra (d). €

A missing bullock could not be stolen within the meaning of s. 410 when no
offence was committed with reference to it by theft or by extortion or by robbery,
etc., but ths*ftdhteed person could be convicted under s. 403 (e).

a Where the finding was that the stolen bajri ears were similar to the crop from
which the ears were stolen, it was held that the finding was insufficient for a con-
viction under this section. The finding must be that the property stolen (f),
although it has been held that proof of theft is not necessary for conviction under
this section (g).

Under the Indian Contract Act a sale by a thief even to a bona fide purchaser
does not give the latter a legal title to the possession of the article sold (h).

Possession of stolen property It is of the essence of the offence under
this section to show that the person who was in possession of the stolen property

(a) Rasul Khan, 44 C. L. J. 205 : 28 Cr. L. J. 59 : A. I. R. (1927) Cal. 01.

(b) Balaya Somya , (1890) 15 B. 369 (370). *

(c) Bandhu, (1880) 8 A. 51, followed in Nithal , (1887) 9 A. 248 (1887). see

Harris , (1918) 40 A. 348.

(d) Monmohun Roy , (1875) 24 W. R. (Cr.) 33.

(e) Phul Chand Dube, 28 A. L. J. 220 : A. I. R. (1929) All. 917.

(f) Bava Chella, (1886) Rat. Unrep. Cr. C. 227.

(g) Ismail , (1920) 27 Cr. L.J. 1013 : 901. C. 809 : A. I. R. (1926) Lali. 040.

(h) Indian Contract Act IX of 1872, a. 108, illustration (a).

SEC. 411] OF THE RECEIVING OF STOLEN PROPERTY 796

knew or had reason to believe that it was stolen property. Where the stolen pro-
perty was traced to the accused’s possession nearly two months at least after the
theft, the presumption under s. 1 14 of the Evidence Act can hardly be applied (i).

Possession of properties identified as belonging to different owners

Where a person was found in possession of stolen property belonging to different
owners and there was no evidence that he had received the same at different times,
held, he could not be convicted separately in respect of property identified by each
owner. The onus in such a case lies on the prosecution (j).

Owner of property may not be known but there must be evidence
that property is stolen property : — It may be taken as settled law that a person
cannot be called upon to account for the possession of property when there is no
evidence whatever that the property has been stolen and it has not been established
to whom the property belonged (k).

Merely pointing out stolen property by the accused is insufficient for
conviction : — Where the only evidence against the accused was that he took three
of the village lambardars to a gfrave-yard where he pointed out certain utensils,
part of the stolen property which lay buried there, the Punjab Chief Court held
that such evidence is not sufficient for conviction under this section (1).

Evidence as to the value of the stolen property is necessary ' The

Court should insist on having a direct evidence of value as the accused is entitled
in every case to have some sworn testimony of value which he can cross-
examine (m).

Identification of stolen property : — W here the proceeds of a theft consisted
of cloth, the fact that rome pieces found in the hou?e of the accused answered to
the general description given by the complainant, the Lahore High Court held
that in the absence of some distinguishing marks the said fact was insufficient to
establish the identity of the pieces as stolen property (n).

Identification of cereals s — Where the stolen property consisted of cereals
and the identification of cereals which were recovered from the house of the accused
had not been established, the Patna High Court held that the conviction of the
accused was an impossibility (o).

Property must not necessarily 'be stolen in British India — See commentary on
s. 410, supra .

4 that it was dishonestly received or retained 9 r— The language of the
section is ’whoever dishonestly receives or retains any stolen property/ ‘Dis-
honestly* has been defined in s. 24, supra.

The Allahabad High Court quashed the conviction of an accused person who
was convicted under this section by the Magistrate as there was no evidence that
they had dishonestly or otherwise received or retained the property (p).

(i) In re. Ramud Iyer , (1922) 44 M. L. J. 243 : 32 M. L. T. 318 : 24 Cr. L. J.
426 (427) : 72 I. C. 638: A. I. R. (1923) Mad. 366.

(j) Hayat, (1928) 10 L. 168 : 107 I. C. 660 : A. 1. R. (1928) Lah. 637.

(k) Yasinkyan, (1923) 19 N. L. R. 176 : 24 Cr. L. J. 960 : 75 1. C, 544 : A. I. R.
(1924) Nag. 48, following Budhankhan, 14 Bom. L. R. 893 : 13 Cr. L. J. 792 : 17 I. C.
537.

(l) Mehru , , (1913) P. L. R. No 315 of 1913 : P. W. R. No. 32 of 1913: 14

Cr. L. J. 602 : 21 I. C.^474, following Hakiman, P. R. No. 20 of 1905 (Cr.) : P. L. tt.

No. 61 of 1905 : 2 Cr. L. J. 230 ; Gobinda, (1895) 17 A. 576 ; Indar Singh, 24 Cr. L. J.
587.

(m) Mahboob, (1920) 21 Cr. L, J. 552 : 56 I. C. 856.

(n) Mahandu, (1919) 1 Lah. 102 : 1 L, L. J. 182 : P. L. R. No. 89 of 1920 :

21 Cr. L. J. 599: 57 I.*C. 167.

(o) Sharafat , (1920) 1 P. L. T. 727 : 21 Cr. L. J. 673 : 57 I. C. 913.

(p) Kirpal Singh , (1887) 9 A. 52#; Gunna, (1926) 48 A. 687.

796

THE INDIAN PENAL CODE

[CHAP, XVII

It has been held that proof of theft is not necessary for conviction under
this section (q), but where theft is proved, the next step is to prove that the stolen
property was either received or retained by the accused (r).

Where the stolen property is found concealed in a loft in the house of the
accused, the Bombay High Court held that this would be sufficient to raise a pre-
sumption that he knew the property to be stolen property, but not to support the
finding of the Jury that he knew that it had been acquired by dacoity (s). The
Allahabad High Court held that an accused person cannot be convicted under this
section merely on showing that he was in possession of certain property and failed
to account for its possession. The prosecution must prove both that the property
was stolen and that the accused received it or retained it dishonestly. If the
possession of an article is proved, the Court may presume that the person in posses-
sion of the stolen goods soon after the theft is either guilty of theft or of receiving
the goods knowing them to be stolen unless he can account for possession (t). The
Madras High Court has held that the gist of the offence under this section con-
sists in guilty knowledge at the time of the receipt where the charge is 4 dishonest
receipt of stolen property* but the offence of ‘^dishonest retention of stolen pro-
perty * may be complete without any guilty knowledge at the time of receipt (u).

Plowden, J., observed : “ The use of the alternative expression ‘ dishonestly
receives or retains/ in one and the same section relieves the prosecutor of proving
more than that the accused * either received or retained * the property (of course
in either case dishonestly), that is to say, the prosecutor need not prove that it was
dishonestly received as distinct from dishonestly retained, or dishonestly retained
as distinct from dishonestly received : it is enough to prove facts which justify
the inference that the accused either dishonestly received the property or having
received it honestly, dishonestly retained it” (v).

The mere fact that a person points out a place where stolen property is con-
cealed, if that place is not in his own house or in his own field, but of another
man, is not sufficient to entitle the Court to find that the person who pointed out
the stolen articles had received or retained it knowing it to be stolen (w).

Knowledge of the place of concealment s— ' The mere knowledge of the
place of concealment does not necessarily lead to the conclusion that the person
having such knowledge actually received the articles or participated in the act of
concealment (x).

It is no| necessary to prove actual delivery to the accused There is
a receiving within the meaning of the Act — whenever a person, knowing that goods
are stolen, has possession of them for a bad purpose, it is immaterial whether he
claims any property in them (y).

Where the accused was found in possession of a package containing some
piece goods at the railway station which were delivered to him by the station
master on production of the railway receipt, but he did not in fact remove the goods
from the station, the Calcutta High Court held that the accused was rightly con-
victed under this section (z).

(q) Ismail, (1926) 27 Cr~ L. J. 1013 : A. I. R. (1926) Lah. 640 : 96 I . £. 869.

(r) Bava Chela , (1886) Rat. Unrep. Cr. C. 227.

(s) Malhari, (1880) 6 B. 731.

(t) Bhaross, (1923) 21 A. L. J. 836 : A. I. R. (1924) All. 192, following Burks,
(1884) 6 A. 224.

(u) (1869) 4 M. H. C. R. (App.) 42.

(v) Muhammad , (1899) P. R. No. 14 of 1899.

(w) Govinda, (1896) 17 A. 676, followed in Paimulla, (1911) 16 C. W. N, 238.

(x) Buta Singh , (1916) P. R. No. 1 of 1917 : 18 Cr. L, J. 490 : 39 I. C. 330.

(y) Per Lord Campbell, in Wiley, 2 Den. 37 : 24 L. J. (M. C.) 4.

(z) Shewdhui Sukut, (1913) 40 C. 990* 14 Cr. L. J. 318: 19 I. C. 1006.

SEC. 411] OF THE RECEIVING OF STOLEN PROPERTY 797

Exclusive possession is necessary Dishonest receipt or retention
implies possession and possession mustbe actual, exclusive and not constructive
in order to bring an offender within the purview of this section. The word
4 possession ' in this connection must be conscious possession as the section uses
the expressions ' knowing or having reason to believe the same to be stolen pro-
perty/

Joint family : — The manager of a joint Hindu family is prima facie respon-
sible for the illegal possession of stolen articles found in his house unless the
presumption is rebutted upon the particular facts and circumstances of the
case (a). Where stolen property is found in a room which had no shutters and
to which access may readly be had by any member of a joint family, it cannot
be said, in the absence of further evidence incriminating any particular member,
that the possession is of one member rather than of another and it was held that the
accused could not be convicted under this section (b).

Father and son living together— keys with father, son not liable : — Where there
was no evidence to show that the son was in possession of property which he knew
or had reason to believe was stolen except that he had said to the police that there
was no stolen property in the house, it was held that the accused could not be
convicted under this section (c). Where stolen property consisting of a bale of
cloth was found on search by the police in a house coccupied by the accused, his
father and his son and the son was found to be the managing member of the
family, and the key of the room in which the stolen property was found was pro-
duced by him, the Allahabad High Court held that knowledge of the presence in
the house of stolen property having been established against the house master,
he must be presumed to have been in possession of it, and the conviction of the
accused under s. 411 was correct (d).

House occupied by several persons The mere fact that the box which
was alleged to be stolen property was found in the house in which the accused lived
with his brothers is not enough to establish that he retained it in his possession or
custody. Where stolen property is found in a house occupied by several persons,
it is not enough to show that the property was found in the house to convict a
member of the family who may have had nothing to do with bringing or keeping
it there (e). Where some stolen art jeles were recovered from a cattle-shed which
belonged to three brothers of whom accused was the youngest and which was in the
immediate charge of a servant who had been previously convicted of having kept
some stolen articles in his own house, the Lahore High Court held that tire accused
could not be convicted under this section (f). Where in a house occupied by a
joint family including several male and female members, certain stolen property
was found in a locked box, the key of which was in the possession of one of the
women, who however was not in the house, the Allahabad High Court held that
the husband could not be convicted under this section as it could not be presumed
that in every case of this kind the possession of the wife is per se the possession
of the husband (g). *

Under English law a wife cannot be convicted (h).

(a) MusaiKamat, (1912) 1 Pat. L. T. 431 : 21 Cr. L. J. 757: 58 I. C. 341.

(W Ram Autar, '(1125) 47 A. 511 : 23 A. L. J. 421, following Sangam Lal t (1883)
15 A. 129 and Nirmal Das , (1900) 22 A. 445.

(c) Farrukh Hussain (1920) 23 Cr. L. J. 428 : 67 I. C. 588 (2).

(d) Budh Lai , (1907) 29 A. 598, following Sangan Lai , (1893) 15 A. 129 (131).

(e) Bashir AhmedKhan , (1919) 21 Cr. L. J. 40 : 54 I. C. 248 ; Ram Autar , (1925)
47 A. 511: 23 A. L. J. 421.

(f) Ganeshi Lai . (1923) 4 L. L. J. 484 : 24 Cr. L. J. 767 : 74 I. C. 271.

(gV Khushi Ram , (1^21) 20 A. L. J. 162 : 23 Cr. L. J. 386 : 67 I. C. 338 : A. I. R
(1*22) All. 83.

(h) Af'Clartnc*, 3 Cox. 425 ; 1 Hale, *P. C. 516,

798

THE INDIAN PENAL CODE

[CHAP. XVII

* If a husband knowing that his wife has stolen certain goods received them from
her, he may be convicted of receiving goods knowing them to have been stolen (i).
A husband and wife were jointly indicted for receiving stolen goods* There
was evidence that the wife had received part of the stolen property from
one of the thieves ; there was no evidence that the husband was present at the time,
and there was no evidence that the wife was acting under his compulsion. It was
held that the wife was properly convicted of receiving stolen goods (j).

Production of stolen property from a jungle insufficient to sustain
conviction : — Where some thans (rolls) of cloth, the stolen property, were produced
by the accused from a hole in a nullah in a jungle not far from his house, the Punjab
Chief Court held that such production was insufficient to establish his guilt under
this section (k).

Receiving stolen property of a particular person : — Where it is proved
that the accused is a receiver of stolen property knowing it to be stolen and the
evidence fell short of showing that this offence was a repeated offence when the
charge was that the stolen property was received at different times from different
persons, the Allahabad High Court held that a conviction for receiving the parti-
cular person's property could not be sustained (1).

‘that the accused knew or had reason to believe that it was stolen
property 9 : — The next essential ingredient of the offence is that the accused
knew or had reason to believe that the property was stolen and it must be clearly
proved that he received or retained the same with guilty knowledge (m).

The accused need not have actual positive knowledge that it was stolen pro-
perty. The expression ‘ or having reason to believe the same to be stolen property 9
imports that the accused must have reasons to believe or, in other words, ought
to have been made aware of the nature of the property, which under the English law
would amount to knowledge. So Bramwell, B., in a case told the Jury that M the
knowledge charged in the indictment need not be such knowledge as would be
acquired if the prisoner had actually seen the lead stolen, it is sufficient if you think
the circumstances accompanying the transaction were such as to make the prisoner
believe that it had been stolen ” (n).

The onus is on the prosecution to prove su$h guilty knowledge : — As Melvill, J.,
said : It lay upon the prosecution to prove that the accused person knew or had
reason to believe that the bullock was stolen property. It was not sufficient to show
that the accused was careless or that he had reason to suspect that the property was
stolen, or that he did make sufficient enquiry to ascertain whether it had been
honestly acquired. The word (i) * * 4 believe * in s. 414 is a very much stronger word
than ‘ suspect ' and it involves the necessity of showing that the circumstances were
such that a reasonable man must have felt convinced in his mind that the property
with which he was dealing must be stolen property " (o). This case was followed
by the Madras High Court which has held that the correct test of the accused's guilt
under this section is whether he 4 knew or had reason to believe ' that the property
was stolen. Mere suspicion is not enough (p).

(i) Me. Athey, (1862) 32 L. J. N. S. M. C. 35.

(j) Baines, (1900) 19 Cox. 524. *

(k) Pirbaksh, (1911) P. L. R. No. 40 of 1912 : P. R. R. No. 29 of 1912 ; 13

Cr.L. J. 28: 18I.C.220.

(l) Hira, (1912) 9 A. L. J. 370 : 13 Cr. L. J. 254 : 14 It. C. 606.

(m) Meet Year , (1870) 13 W. R. (Cr.) 70; Balaya Somya, (1890) 15 B # 369.

(n) White, (1859) 1 F. and F, 665.

(o) Rango Timaji , (1880) 6 Bom. 402, followed <n Cagecombe , A. I. R. (1928)
Cal. 264,

(p) Kanniappa Naicker, (1913) M. W, N, 690 : (1913>* 14 Cr. L. J. 69: 2l 1«C.

383 .

SEC. 411] OF THE RECEIVING OF STOLEN PROPERTY 799

Guilty intention necessary : — As the section uses the expression * dis-
honestly ” guilty intention must be found. So the Lahore High Court held that
in order to sustain a conviction under this section it must be found that they
were stolen articles dishonestly with the knowledge or with reason to believe that
they were stolen property (q).

Guilty knowledge is essential ' The mere fact that a person was in posres-
sionofa stolen horse and he sold it to another is not in itself sufficient to warrant
a conviction under this section. His denial of having any connection with the
animal although goes much against him is by no means conclusive of guilt specially
when there is some enmity between the alleged vendor and the vendee (r) To
shew guilty knowledge other instances of receiving the goods of the same prosecutor
may be given in evidence (s). The offence of * receiving stolen property * under
this section is constituted only on proof of the accused’s knowledge or belief that
the property was stolen and of his having received the goods in that state of mind.
It is not enough to prove that the accused must have suspected that the property
was stolen (t).

It makes no difference whether a receiver receives for the purpose of profit
or advantage or whether he does it to assist the thief (t x ).

On an indictment against A for stealing and for receiving goods, evidence
that on various former occasions portions of the commodity stolen have been missed,
and that the prisoners have, after such occasions, been found selling such a commo-
dity and that on the last occasion it was a part of which was stolen, it was held
sufficient to fix the receiver with a guilty knowledge (u).

Under English law it was held that it was not admissible evidence that the
accused had in his possession other stolen goods of the same sort as those mentioned
in the indictment, but belonging to a different owner and that those goods had been
stolen from such owner (v). But such evidence under certain restrictions is now
admissible in England by 34 and 35 Viet., c. 112, s. 19.

Upon the trial of a prisoner for receiving stolen property with a guilty know-
ledge, evidence was admitted that shortly before the stealing of the property in
question he had been in possession of other stolen property of a similar character
though he had parted with the possession of such other property before the date of
the stealing of the property charged, it was held that such evidence was
inadmissible (w).

Under the Indian Evidence Act such evidence would be admissible. S. 14,
illustration fa) provides :

( a ) A i9 accused of receiving stolen goods knowing them to be stolen. It is
proved that he was in possession of a particular stolen article.

The fact that at the same time, he was in possession of many other stolen articles
is relevant, as tending to show that he knew each and all of the articles, of which he
was in possession, to be stolen.

(q) Arjun Das , (1923) 25 Cr. L. J. 291 : 76 I. C. 963 : A. I. R. (1923) Lah. 340.

(r) Allu t (19J4) P. L. R. No. 229 of 1914 : P. W. R. No. 34 of 1914 : 15 Cr. L. J.
654 : 25 I. C. 982.

(s) Henry 1826) 1 Mood. 146.

(t) Sankara Namyana Chetti, (1916) 17 Cr. L. J. 312-35 I. C. 488 following
Rang a Timaji, 6 B. 402.

. (ti) Davis, (1833) 0C. and P, 177.

(u) William Nicholls and John Clark, £1858) 1 F. and F. 51.

(v) Oidy, (1851) 2 Den. 264 : 20 L. f. (M. C.) 198.

(w) Carter, (1884) 12 Q. B. D. 622 ; Drage, (1878) 14 Cox. 86.

(x) Malhari, (1882) 6 B. 731.

(y) Jehri (1001) M A. 266 (287 and £68).

800

THE INDIAN PENAL CODE

[CHAP. XVII

The fact of stolen property being found concealed in a loft in a man’s house
wduld be sufficient to raise a presumption that he knew the property to be stolen
property but not to support thefinding of the Jury that he knew that it had been
acquired by dacoity (x).

The retention by the thief of stolen property is not an offenceunder s. 411.
This section is clearly directed against some person other than the thief (y).

Presumption arising from possession soon after theft ' The Court
may presume that a man who is in possession of stolen goods soon after the theft
is either the thief or has received the goods knowing them to be stolen, unless he can
account for his possession (z).

Where a common brass drinking cup was stolen in October 1883,and was traced
to the possession of the accused in September 1884, the Calcutta High Court held
that possession 1 1 months after the theft by itself afforded but a slight presumption
against the accused and he ought not to have been called upon to explain how his
possession was acquired (a).

. Maule, J., said : “ If a man go into the London Docks sober, without means
of getting drunk and comes out of one of the cellars very drunk, wherein are a
million gallons of wine, I think that would be reasonable evidence that he had
stolen some of the wine in that cellar, though you could not prove that any wine
was stolen or any wine was missed ” (b).

Where in a house occupied by the accused it were found hidden inside a pillow
case two chains of gold necklace and some gold 4 cocoanut flower * ornaments and
inside a pot of £a/ai were found one chain of a gold necklace and some cocoanut
flowers, and the accused admitted that the property was found as stated by the
prosecution but denied all knowledge of it, the Calcutta High Court set aside the
conviction (x).

Duty t*> account for possession— Explanation by accused ^Where
the prisoner is charged with receiving stolen property, when the prosecution has
proved the possession by the prisoner, and that the goods had been recently stolen,
the Jury may be told that they may, not that they must, in the absence of any
reasonable explanation, find the prisoner guilty. The onus of proof is always on the
prosecution ; that onus never changes (d).

«r

Possessing property some time after theft Where the property was
discovered long after the theft and the keys were very ordinary keys which might
have been brought to the accused’s house quite innocently and the accused disclaimed
all knowledge of those keys and there was no evidence to fix him with the knowledge
of the keys or how they came there, the Calcutta High Court held that there was no
presumption under s. 1 14 of the Evidence Act and set aside the conviction of the
accused (e).

Where a considerable time has elapsed between a theft and the discovery
of the stolen property, possession itself does not require any explanation (f).

(z) S. 114 (a), Indian Evidence Act.

(a) I'na Sheikh, (188S) 11 C. 160 ; Guzzaln Hanuman, (1002) 26 M. 407.

(b) Cooper, (1862) 3 C. and K. 318; Partridge, (1836),. 7 C. & P. 551, followed

in Ina Sheikh, (1885) 11 C. 160. V

(c) Ishan Mochi, (1808) 15 C. 611 (not argued at the bar) not followed in Nga

Kawet, (1900) 1 L. B. R. 29. «.

(d) Hathem Mondal, (1920) 24 C. W. N. 619 : 31 C. L. j. 310 : 21 Cr. L. J. 646 :
56 I. C. 849, followed in Salya Charan Manna, (1924) 52 C. 223 and Kabatulla, (1926)
42 C. L. j. 212.

(e) Joyennulla Bepari, (1917) 22 C. W. N. 697 : 19 Cr. L. J. 702 : 46 I. C. 158.
if) Disi. Magt. of Bellary v. Obbayfy (1912) M. W. N, p29 ; 13 Cr. L. J. 696: 16

I C. 104.

SEC. 411 ] *0F THE RECEIVING OF STOLEN PROPERTY 801

Twelve days after theft Where stolen property was found on the neck of
accused’s sister 12 days after the theft and accused and his sister were living in the
same house, it was held that possession was rightly traced to the accused (g).

Where stolen property was found in the house of the accused on the neck of
his sister 12 days after the theft, and the accused's sister was living in the same house
with the accused, the Jury found the accused guilty of being in possession of stolen
property, the Calcutta High Court held that the possession was rightly traced to the
accused (h).

Two months after theft : — Where stolen property was traced to the accused
nearly two months at least after the theft, the Madras High Court held that the pre-
sumption under s. 1 14 of the Evidence Act hardly applied (i).

Four months after theft : — Where sundry articles of stolen property were traced
to the accused nearly four months after the theft, it was held that from no point
of view could a conviction for more serious offence than under s. 41 1 be upheld (j).

Five months after theft : — Where the nature of the articles is such that they
may be constantly changing hands and the articles were recovered five months after
the theft, it was held that the presumption under s. 114, Evidence Act, did not
apply (k).

Seven months after theft — Possession of currency notes : — The complainant
lost some currency notes and more than seven months after the loss one of the notes
was traced to the accused who carried on the business of a shroff at Bombay and his
explanation was that he received it from a Mahomedan whose name he did not know.
The Magistrate did not issue process. The Calcutta High Court held that the
possession not being recent, the order of the Magistrate was right (1).

Nineteen months after theft : — Possession of stolen property by a person 19
months after the burglary does not raise the presumption that such person is either
a thief or an receiver of stolen property knowing it to be stolen (m).

Two years after theft : — Where it was proved that nearly two years after the
owners loss of property the accused was found in possession of stolen property
knowing it to be stolen property, but there was no evidence as to when he had first
acquired such possession, it was held that the accused was guilty under this
section (n). •

Three years after theft : — Where a property viz. % timber is alleged to have been
stolen some three years before it is found in possession of a person, very clear
evidence in such cases is required to show that he must have known it to be stolen
property (o).

Evidence : — It is not necessary to prove who the actual thief was and it is not
proper to quote in the charge that the goods were stolen by AB from whom the
prisoner received them as the prisoner might be entitled to an acquittal if it appeared
that he had not received from AB or that AB was not the thief (p).

• _

(g) In re. Lai Singh, (1910) 9 M. L. T. : 12 Cr. L. J. 48 : 9 I. C. 288.

(h) Arshed Molla, (1919) 29 C. L. J. 325 : 20 Cr. L. J. 525 : 51 I. C. 685.

(i) In re Ramudu A iyer, (1922) 44 M. L. J. 243 : 24 Cr. L. J. 426 : 72 I. C. 538 :
A. I. R. (1923) Mad. 365.

(j) Dusthoo Ghulunt, (1911) 10 M. L. T. 237 : 12 Cr. L. J. 549: 12.1. C. 525.

(k) Hart Ram. (1921) 22 Cr. L. J. 695 : 62 I. C. 867 {Lah.).

(l) Ramcharan Saha 'I. Haji Miah Haji Abdulla, (1913) 17 C. W. N. 1129: 14
Cr. L. J. 571 : 21 1. C. 171.

(m) Nagli, (1926) 27 Cr. L. J. 807 : 95 I. C. 471 : A. I. R. (1926) Lah. 528.

(n) Ram Pershad, (1924) 2 R. 80.

(o) Lai Singh, P. L. R. No. 113 of 1914 : P. W. R. No 18 of 1914 : 15 Cr. L. J.
521 : 24* I. C. 833 ; Sant Stngh, A. I. R. (1923) Lah. 460.

(p) Elsworthy’s case, (1830) 1 Lewin 11 J,

. 47

802

THE INDIAN PENAL CODE. [ CHAP. XVII

There must be proof of actual receiving and it has been held in England that to
constitute the offence of receiving there must be some proof that some person other
than the prisoner had possession of the goods before the prisoner got possession of
them ; otherwise, possession of them is only proof of stealing (q).

On an indictment against an accessory, a confession by the principal is not
admissible in evidence to prove the guilt of the principal (r).

The prosecution must prove (1) That the property in question is stolen pro -
perty.

Before a man can be convicted of receiving property knowing it to be stolen
it must be shown that property has been stolen (s).

There can be no conviction under this section unlesss there is evidence
of theft (t).

(2) That the stolen property was dishonestly received or retained by the accused.

44 The presumption arising from possession soon after theft * comes under this
head * — see commentary on this section under that * head \ * Joint family property ’
* property in possession of husband or wife/ 4 house occupied by several persons/
etc., come under this 4 head ' and have been commented upon.

Evidence must be given of dishonest receipt or retention. Where a man
steals an article he cannot also be convicted of receiving it (u).

The prosecution is not relieved from the obligation of proving beyond reason*
able doubt that he property was stolen and that the accused received it dishonestly (t).

After these two essential ingredients of the section are complied with, evi*
dence must be adduced by the prosecution that the accused knew or had reason to
believe that the property was stolen property or that guilty knowledge or belief
must be proved (v).

In considering whether the accused had guilty knowledge or belief, the nature
of the property is material as for instance the defence may successfully take the plea
that the property in question is an ordinary article , not of an unusual character and
such as easily pass from hand to hand (w).

Direct evidence must be given of the value of the article and the Court should
insist on having direct evidence, as the accused is entitled to have some sworn
testimony of value which he can cross-examine (x).

Next where the accused has come by possession by purchase evidence may be
offered on the following points : (a) why was the property sold or bought or (A)
was the sale made publicly and (c) what was the price paid by the accused ?

412. Whoever dishonestly receives or retains any stolen
Dishonestly receiving property, the possession whereof he knows
property stolen in the or has reason to believe to have been trails-
commission ot aflacoity. by the commission c f dacoity, Or

dishonestly receives from a person, whom he knows or has reason
to believe to belong or to have belonged to a gang of dacoits,

(q) R. v. Cordy , Russel, on Crimes and Misdeamenour followed in Ishan Muchi,
(1888) 15 C. 611 (1888) followed in Makhan , (1893) 16 A. ,317 : 13 A. W. N. 101.

(r) John Turner , (1832) 1 Moody, 347.

(s) Ishan Chandra Chandra t (1898) 21 C. 328 ; Burke, (1884) 6 A. 224.

(t) T. Burke, (1884) 6 A. 224.

(u) Guzzala Hanuman, (1902) 26 M. 467.

(v) Meer Yar, (1870) 13 W. R. (Cr.) 70 ; Balaya, (1890) 15 B. 889.

(w) Rauaji , (1892) Rat. Unrep. Cr. C. 694 ; Ina Sheikh, (1866) 11 C. 160.

(x) Mahboob, (1920) 21 Cr. L. J. 5«5 (All.) : 56 I. C. 856.

SEC, 412 ] OF THE RECEIVING OF STOLEN PROPERTY 803

property which he knows or has reason to believe to have been
stolen, shall be punished with transportation for life, or with
rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.

Dishonestly — s. 24. Possession — s. 27.

Receives or retains — s. 41 1 . Reason to believe — s. 26.

Stolen property— s. 410. Dacoity — s. 391 .

This section punishes the offender severely because the stolen property received
or retained is transferred by the commission of dacoity t in other words, it is an
aggravated form of the offence punishable under the last section, and has been
enacted to stamp out dacoity.

Scope : — The essence of an offence under s. 41 1 or s. 412 is the act of receiving
or retaining stolen property (y).

Mere possession of stolen articles of trifling value does not warrant the presump-
tion that the receiver knew them to have been the proceeds of a dacoity, or had
acquired them from one whom he knew or believed to be a dacoit (x).

Where stolen properly is found in the possession of dacoits, the offence of
* knowingly having in possession ’ is to be considered as included in the original
offence of dacoity unless there are circumstances which clearly separate the one
crime from the other — length of time — or distance for example (a).

Procedure: — Cognizable — Warrant— Not bailable — Not compoundable —
Triable by Court of Session.

To support a conviction under this section it is not sufficient to show that the
accused knew that the property was stolen property but that they knew its posses-
sion had been transferred by dacoity (b). It is necessary to prove that the prisoner
knew or had reason to believe that dacoity had been committed or that the persons
from whom he acquired the property was the person or one of the persons who
committed the dacoity (c). In order to support a conviction under this section
proof of mere guilty knowledge is sufficient — it must be proved that the prisoner
received or retained plundering property knowing it to be plundered property (d).

Where persons are found, within 6 hours of the commission of a dacoity, with
portions of the plundered property in their possession, the presumption of law is
that they were participators in the dacoity and not merely receivers (e).

Separate conviction : — A person convicted of dacoity cannot be convicted
under this section when there is no evidence of commission of more than one
offence (0*

A person found in possession of stolen property indentified as belonging to
different owners cannot be convicted separately in respect of property identified

(y) Sheocharan, (1923) 46 A. 485 (486) : 21 A. L. J. 389 : 24 Cr. L. J. 632 : 73

L C. 620 : A. I. R. (1923) All. 647. „ _

(z) Samiruddin , (1872) 18 W. R. (Cr.) 26 (26) ; Guzzala Hanutnan, (1902) 28

M. 487. .

(a) Per Glover, J., \n*Abool Hossain , (1864) 1 W. R. (Cr.) 48.

(b) Daji Mahadu , (1896) Rat. Unrep. Cr. C. 766.

(c) Jogeshm Bagirn, (1867) 7 W. R. (Cr.) 109.

(d) Bishoo Manjee , (1868) 9 W. R. (Cr.) 16.

(e) Casy AfWj*<1865) 3 W. R. (Cr.) 10.

(f) * Sahabut Sheikh , (f870) 13 W. R. (Cr.) 42,

804 THE INDIAN PENAL CODE pCHAP. XVII

by each owner unless there is evidence to prove that they were received by him
at different times (g).

Charge : — Where the prisoner was apprehended eight days after the dacoity,
with part of the plunder in his possession, there was as good ground for charging
him with the dacoity as with having received or retained with guilty knowledge ana
he might probably have been convicted in the alternative form (h).

Where an accused is tried by a Jury for an offenco under this section, it is
competent for the Court to convict him for an offence under s. 41 1 which is triable
with the aid of assessors (i).

Form of charge : — I ( name and office of Magistrate, etc.) hereby charge you
(name of accused) as follows : —

That you, on or about tho day of , at ,

dishonestly received (or retained) stolen property to wit , belonging

to XY whereof you knew or had reason to believe, to have been transferred by the

commission of dacoity (or dishonestly received from a person named X Y-

whom you knew or had reason to believe to belong or to have belonged to a gang or
dacoits), certain property to wit which you knew (or had reason to be-

lieve to have been stolen) and that you thereby committed an offence punishable
under s. 412 of the Indian Penal Code and within the cognizance of the Court of
Session.

And I hereby direct that you be tried by the said Court on the said charge.

Charge to jury : — Whether the possession of stolen property was recent
enough to warrant a conviction for the substantive offence was a matter entirely
for the jury and it was a clear misdirection to the jury to direct them that the
finding of a stolen shirt with the accused two months after the dacoity was ‘so short*
a time as to justify them in convicting the accused of the dacoity itself G).

Sentence : — Transportation commuted under s. 59, supra, in a conviction
under s. 412 cannot exceed 10 years (k).

413. Whoever habitually receives or deals in property which
Habitually dealing in he knows or has reason to believe to be stolen
stolen property. property, shall bepunished with transporta-

tion for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

This section punishes habitual dealer in stolen property. The gist of the offence
lies in the habit of receiving or dealing in stolen property and the maximum sentence
provided here is transportation for life.

Scope ‘ The very essence of the offence is the habitual, i.e„ constant receipt
of or dealing in goods which the prisoner knew or had reason to believe were
stolen. A person cannot be said to be habitually receiving stolen goods who may
receive the proceeds of a dozen different robberies from a dozen different thieves on
the same day, but in addition to the receipt from different persons there must be a
receipt on different occasions and different dates (1).

(g) Sheo Charon, (1923) 46 A. 486: 21 A. L. J. 389: 24 Cr. L. J. 632 : 73
I. C. 620 : A. I. R. (1923) 674, following Makhan, (1893) 16 A. 317 which followed
I shan Much i, (1888) 16 C. 61 1 .

(h) Motee Jolaha, (1866) 6 W. R. (Cr.) 66.

(i) Gulabchand Dosaji, (1926) 27 Bom. L. R. 1416, following Prabkusanhar,
(1901) 26 B. 680 : 3 Bom. L. R. 278 (F. B.).

(j) Guzzala Hunuman, 26 M. 467.

(k) MohanandaBhundary (1866) 6 W. R (Cr.) 16. See NaUtt, (1874 A. 43
(F. B.).

(l) Baburam Kantari, (1891) 19 C. 1(»0,

Stec. 414] OF THE RECEIVING OF STOLEN PROPERTY 805

Procedure s — Cognizable— Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

Joint trial of an accused charged under s. 411 and s, 413 not legal A

prisoner cannot be tried at the same trial for receiving or retaining (s. 411) and
habitually receiving or dealing in ($. 413) stolen property, these two offences not
being offences of the same kind (m).

How to prove habit ? — Where the accused has been previously convicted,
that fact may be proved as required by s. 51 1 of the Code of Criminal Procedure.

Habit must be proved by an aggregate of acts (n).

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of , at , were a

habitual receiver of (or dealer in) property which you knew or had reason to believe
to be stolen property, and that you thereby committed an offence punishable under
s. 413 of the Indian Penal Code and within the cognizance of the Court of Session
(or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

414. Whoever voluntarily assists in concealing or disposing
Assisting in conceal- of or making away with property which he
ment of stolen pro- knows or has reason to believe to be stolen
pcrty property, shall be punished with imprison-

ment of either description for a term which may extend to three
years, or with fine, or with both.

Voluntarily — s. 39. Reason to believe— s. 26.

Stolen property — s. 410.

This section punishes assisting in concealment or disposal of stolen property.

Scope Taking the sections themselves and Chapter XVII, in which
they stand, it would appear that Ss. 378 to 409 deal with various criminal
methods by which the property may be dishonestly taken from the posses-
sion of the lawful owner, that is theft, extortion, robbery and dacoity, criminal
misappropriation of property and criminal breach of trust. The next portion
of the Chapter deals with subsequent criminal acts with stolen property as defined
in s. 410. Stolen property when it passes may be first received or retained and
then finally concealed or disposal of, and it is with offences in this chronological
sequence that Ss. 41 1 to 414 in my opinion deal. When receipt or retention not
necessarily for disposal is dishonest, s. 41 1 is the appropriate section. If on the
other hand, dishonest receipt or retention cannot be proved but only dishonest
concealment or disposal, s. 414 is more appropriate ” (o). This section is intended
to apply to cases in which the offence does not come within the purview of s. 41 1
but where a person is shown to stand in such a relation to stolen property as falls
short of possession by him of such property, but his manner of dealing with the
property is such as would warrant a charge of assisting in concealing o t disposing
of or making away with the property with a guilty knowledge (p). This section

(m) UttomKundoo , (1§82) 8 C. 634.

(n) Savaidas , (1888) Rat. Unrep. Cr. C. 418 (case under S. 401 Supra ) ; Kasem
Ali, (1919) 47 C. 164.

(o) Per Madgavakar, J. f in Abdul Gani . (1926) 49 B. 878 (886) : 27 Bom.
L. R. 1373 (1383).

(p) Khona, (1879) P,* R. No. 31 of 1879; Subha Chand, (1881) P. R. No. 39 of

1RR1 t

806

THE INDIAN PENAL CODE

[CHAP. XVII

t Procedure : — Cognisable- — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class — Triable summarily where the value of the stolen property does not
exceed fifty rupees.

The prosecution must show—

(1) that the property is stolen property, and

(2) that the accused had guilty knowledge.

If on the other hand, the accused can put forward any alternative hypothesis
reasonably possible or even moderately probable, the accused is entitled to the
benefit of the doubt and the case against him must fail (r).

To convict an accused under this section it is necessary that the property that
is the subject of the charge should be stolen property and further that the accused
should have known or had reason to believe that it was stolen property which they
were trying to conceal or make away with. The finding that the property in ques-
tion is stolen property is an essential finding for a conviction It may

sometimes be inferred indirectly from circumstantial evidence (s).

Joint trial Under the amended Code of Criminal Procedure of 1923 persons
accused of offences under Ss. 411 and 414, or either of those sections in
respect of stolen property the possession of which has been transferred by one
offence may be jointly tried (t).

Separate conviction A person cannot be convicted both for theft as well
as for concealing (u), or disposing of (v) the same stolen property.

Separate sentence : — Where an accused is convicted under s. 41 1 and under
this section separate sentence under both the counts is illegal (w).

Charge : Fawcett, J., in a recent decision has held that illustration (j) to
s. 235, Criminal Procedure Code, supplies a conclusive answer to the contention
that a person who has dishonestly received stolen property cannot possibly be charged
and convicted of voluntarily concealing or disposing of stolen property (x).

Fom of charge : I (name and office of Magistrate, etc.) hereby charge
you (i name of accused) as follows

That you, on or about the day of , at —

voluntarily assisted jn concealing for disposing of or making away with) property,

to wit which you knew (or had reason to believe) to be stolen property,

and that you thereby committed an offence punishable under s. 414 of the Indian
Penal Code, and within my cognizance (or the cognizance of the Court of Session
or the High Court).

And I hereby direct that you be tried by me (or by the said Court) on the said
charge.

(q) Alu Kala (1891) Rat. Unrep. Cr. C. 553.

(r) Abdul Gant * Bahadur Bahi, (1925) 49 B. 878

27 Bom. L. R. 1373: (1377),

33 M. ( L. T. 182; A. I. R. (1924)

(sj In re Samachari, (1923) 45 M. L. J. 7 28 :

Mad. following Rango Titnaji , (1882) 6 B. 402.

(t) S. 239, cl. (f), Criminal Procedure Code.

(u) Nga PoKyaw , (1885) S. J. L. B. 334.

(v) • Zinda, (1896) P. R. No. 15 of 1896.

(w) Sakharam, (J889) Rat. Unrep. Cr. C. 449; Alu Khan, (1891) Rat. Unrep.
Cr. C. 553.

(*) Abdul Cani, (1926) 40 B. 878^(897): 27 Bom. L. R. 1378*

OF CHEATING

807

SEC. 414]

• voluntarily assists in concealing or disposing of or making away with
property 9 : — “ This section applies only when there has been no actual receipt
of the stolen property. The offence punishable under s. 414 is that of voluntarily
assisting in disposing of stolen property and therefore must necessarily form part
of the same transaction as the receipt by the person to whom it is so disposed, of.
It necessarily involves manifest criminality in both persons at one and the same time
when both offences are committed ” (y).

In the commission of an offence under this section it is sufficient that the accused
be proved to have voluntarily assisted in concealing, disposing of or making away
with property which he knew or had reasor to believe was stolen property (z).

€ knows or has reason to believe to be stolen property 9 ' The word
“ believe ” in this section is a very much stronger word than “ suspect/* and it
involves the necessity of showing that, the circumstances were such that a reason-
able man must have felt convinced in his mind that the property with which he was
dealing must be stolen property (a).

Of Cheating.

“ The provisions for the proper punishment of some of the aggravated forms
of cheating are contained in other Chapters of the Code than the present one (of
offences against property) wherein cheating is defined, viz., in the Chapter of
offences relating to coin, to weights and measures, to documents and to trade
or property marks.

“ The practising of intentional deceit for purposes of gain or to induce a
person to act in such a way as to cause damage or harm to himself is an offence
made punishable by the Code under this head.

M It is important th t the law should in no case encourage deceit or falsehood,
and that it should impose restraints on those who practise deception. But the
legislator cannot go so far as to establish the rule of morality as a part of the rule
of law. Many false pretences and many representations calculated and intended
to mislead are morally wrong and deserving of punishment, but a Penal Code can-
not adopt so severe a standard as the moral law whereby to measure the conduct
of men. It is by public opinion, the opinion of the great body of the people, that
restraints and punishments must, in ‘such cases, be imposed. * It would be highly
inexpedient to punish as a criminal every dependent who obtains pecuniary favours,
every legacy-hunter who. obtains a bequest by cajoling a rich testator ; every debtor
who moves the compassion of his creditors by oyer-charged pictures of his misery,
every petitioner who, in his appeals to the charitable, represents his distresses as
wholly unmerited, when he knows that he has brought them on himself by intem-
perance and profusion/ In dealings between buyers and sellers, frequently even
intolerably honest transactions, there happens an exaggeration on the one side and
a depreciation on the other of the value of the thing sold which may be morally
reprehensible but with which the penal law cannot deal. #

“ If all the misrepresentations and exaggerations, in which men indulge for
the purpose of gaining at the expense of others, were made crimes not a day
would pass in which many thousands of buyers and sellers would not incur the
penalties of the law. It happens hourly that an article which is worth ten rupees
is affirmed by the seller to be cheap at twelve rupees, and by the buyer to be dear

(y) Jethalal , (1904) 29 B. 449 (463), following Sakharam , (1889) Rat. Unrep.
Cr. C. 449; and Alu Khan , (1891) Rat. Unrep. Cr. C. 653 ; (1868) 4 M. H. G. R.
App. XIV.

(z) \Rameswar Rai t (1877) 1 A. 379.

(a)T Rango Titnaji, (*880) 6 B. 402 (403), followed in Kanniappa Naicker , (1913)
M. W. N. 69&: 14 Cr. hi h Ml : 21 I. €. 8g3.

808

fttE INDIAN PENAL CODE t CHAP. XVli

at eight rupees. The seller comes down to eleven rupees, and decares that to be
his last word. The buyer rises to nine, and says that he will go no higher. The
seller falsely pretends that the article is unusually good of its kind ; the buyer that
it is unusually bad of its kind ; the seller that the price is likely soon to rise, the
buyer that it is likely soon to fall. Here we have deceptions practised for sake
of gain, yet no judicious legislator would punish these deceptions. A very large
part of tlw ordinary business of life is conducted all over the world, and nowhere
more than in India, by means of a conflict of skill, in the course of which, deception
to a certain extent perpetually takes place. The moralist may regret this : but the
legislator sees that the result of the attempts of the buyer and seller to gain an unfair
advantage over each other is that in the vast majority of cases, articles are sold for
the prices which it is desirable that they should fetch ; and therefore he does not
think it necessary to interfere. It is enough for him to know that all that great mass
of falsehood practically produces the same effect which would be produced by
truth ; and that any law directed against such falsehood would, in all probability be
a dead letter, and would if carried into rigorous execution, do more mischief in
a month than all the lies which are told in the making of bargains throughout
all the bazars of India produce in a century.

44 One probable result of such a law would be that every sale of goods where
the buyer made default in payment and every loan or money where the
borrower made default, would become the subject of criminal prosecution by the
disappointed credited ” (b).

415 .

Cheating.

Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived
to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived, and
which act of* omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property, is
said to “ cheat. ”

Explanation . — A dishonest concealment of facts is a deception
within the meaning of this section.

Illustrations .

(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z,
and thus dishonestly induces Z to let him have on credit goods for which he does not
mean to pay. A cheats.

(b) A , by putting a counterfeit mark on an article, intentionally deceives Z
into a belief that this article was made by a certain celebrated manufacturer, and
thus dishonestly xhduces Z to buy and pay for the article. B cheats.

(c) A , by exhibiting to Z a false sample of an article, intentionally deceives Z
into behoving that the article corresponds with the sample, and thereby dishonestly
induces Z to buy and pay for the article. A cheats.

{d) B, by tendering in payment for an article a bill on a house with which A
keeps no money, and by which A expects that the bill will 1» s dishonoured, intentionally
♦deceives Z, and thereby dishonestly induces Z to deliver the article, intending not
to pay for it. A cheats.

(e) A , by pledging as diamonds articles which he knows are not diamonds,
intentionally deceives Z, and thereby dishonestly induces Z to lend money? 4A cheats.

(b) Morgan and Macpherson, ‘ Penal Code * pp. 375, 870, 377.

Sfic. 415]

Of CHEATING

809

(/) A intentionally deceives Z into a belief that A means to repay any money
that Z may lend to him and thereby dishonestly induces Z to lend him money, A
not intending to repay it. ^cheats.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a
certain quantity of indigo plant which he does not intend to deliver, and thereby
dishonestly induces Z to advance money upon the faith of such delivery. A cheats ;
but if A , at the time of obtaining the money, intends to deliver the indigo plant, and
afterwards breaks his contract and does not deliver it, he does not cheat, but is liable
only to a civil action for breach of contract.

(i h ) A intentionally deceives Z into a belief that A has performed A's part of
a contract made with Z , which he has not performed, and thereby dishonestly induces
Z to pay money. A cheats.

(t) A sells and conveys an estate to B. A, knowing that in consequence of sugh
sale he has no right to the property, sells or mortgages the same to Z, without dis-
closing the fact of the previous sale and conveyance to B, and receives the purchase
or mortgage money from Z. A cheats.

This section defines cheating.

Distinction between cheating, criminal breach of trust and criminal
misappropriation : — In 4 criminal misappropriation * the possession of the
owner has accidentally ceased ; in 4 criminal breach of trust ’ the person entrusted
with property dishonestly misappropriates or converts to his own use such property
or disposes of that property in violation of law ; whereas in 4 cheating * the posses-
sion is obtained by deceit or fraudulent means. But in all these cases 4 dishonestly *
is the common factor.

Cheating and extortion When a person is induced by deceitful or fraudu-
lent means to part with property, the offence is 4 cheating 4 whereas when he is
compelled to part with property by threats, the offence is 4 extortion/ The offence
of 4 cheating 4 like that of 4 extortion 4 is obtained by wrongfully obtained consent,
in the case of the former offence, the offender obtains consent by deception, in the
case of the latter offence, the offender obtains consent by intimidation.

The Authors of the Code observe : 44 The offence of 4 cheating * must, like
that of ‘ extortion, 4 be committed by the wrongful obtaining of a consent. The
difference is that the extortioner obtains the consent by intimidation, and the
cheat by deception. There is no offence in the Code with which we have found
it so difficult to deal as that of 4 cheating.* It is evident that the practising of inten-
tional deceit for purposes of gain ought sometimes to be punished. It will hardly
be disputed that a person who defrauds a banker by presenting a forged cheque,
or who sells ornaments of paste as diamonds, may with propriety be made liable
to severe penalties. On the other hand, to punish every defendant who obtains
pecuniary favours by false professions of attachment to a patron, every legacy-
hunter who obtains a bequest by cajoling a rich testator, every debtor, who moves
the compassion of his creditors by overcharged pictures ot his misery, every peti-
tioner wno, in his appeals to the charitable, represents his distresses as wholly un-
merited, when he knows that he has brought them on himself by intemperance and
profusion, would be highly inexpedient 44 (c).

Scope: — In the definition of * cheating 4 in s. 415 there are set forth two
separate classes of acts which the person deceived may be induced to do. In the
first $lace, he may be induced to deliver any property to any person or to consent
that any person shall retain any property. In order to constitute the offence of
cheating, the person who induces another to do this class of acts must fraudulently
or dislw^egily induce the person deceived to do that kind of act. The second

(c) Note N.

810

THE INDIAN PENAL CODE

[ CHAP. XVII

class of acts set forth in the section is the doing or omitting to do anything which
the person deceived would not do or omit to do if he were not so deceived. In order
to constitute the offence of cheating with regard to this class of acts, the person who
induces another to do them must intentionally induce him to do them. In the first
class of cases, the inducing must be fraudulent or dishonest. In the second class
of acts the inducing must be intentional (d). Mere breach of contract cannot
give rise to a criminal prosecution (e).

The ingredients required by this section are tr*

1 . Deception of any person.

2. (a) Fraudulently or dishonestly inducing that person —

(i) to deliver any property to any person, or
(it) to consent that any person shall retain any property ; or *

(b) intentionally inducing that person to do or omit to do anything which
he wound not do or omit if he were not so deceived, and which act or
omission causes, or is likely to cause, damage or harm to that person in
body, mind, reputation or property (e x ).

This section is composed of two parts : —

(1) " Whoever by deceiving any person fraudulently or dishonestly induces

the person so deceived to deliver any property to any person

is said to cheat.

(2) “Whoever by deceiving any person. ...... .intentionally induces the

person so deceived to do or omit to do anything which he would not do
or omit if he was not so deceived, and which act or omission causes, or
is likely to cause, damage, or harm to that person in body, mind,
reputation or property, is said to cheat" (0.

‘Whoever by deceiving any person This clause governs both the parts.

In an action of deceit, the plaintiff must prove actual fraud. Fraud is proved
when it is shown that a false representation has been made knowingly or without
belief in its truth, or recklessly, without caring whether it be true or false. A
false statement made through carelessness and without reasonable ground for be~
lieving it to be true, may be evidence of fraud but does not necessarily amount
to fraud (g).

The essential ingredient of this section is that the prosecutor must have been
deceived (h). The essence of the offence of cheating is that the party should be
deceived (i).

Under the Code * cheating * is effected by the assertion of something which the
person representing knows as a matter of fact to be false and it is immaterial whether
the fact asserted is represented as something which is existing or is about to take
place, vide Illustrations (/) and (g) to this section.

' The prosecution must show that the accused held out the representation
which was false to his knowledge (j). In England, it has been held that a wilful

_ (d) Kishori Lai Chatter jee, (1005) 9 C. W. N. 764 (767, 768).

(e) Jemadar Rui, A. I. R. (1930) Pat. 504.

(el) Raman Behan Roy , (1923) 50 C. 849 (851) : 28 C. W. N. 252 ; Charu Chandra
Chose , (1923) 28 C. W. N. 414 (421) : 39 C. L. J. 122. * *

(f) Supdt. and Remembrancer , Legal Affairs, Bengal v. Manmatha Bhusan
C halter jee (1923) 51 C. 250 : 28 C. W. N. 160 : A. I. R. (1924) Cal. 495.

(&) Derry v. Peak , (1889) 14 App. Ca. 337.

(h) Mills, (1857) 1 Dears, and B. 205.

(i) Kalee Modah , (1872) 18 W. R. (Cr.) 61.

(j) Ebrahimji Mulla Jewanji , (J912) f l§ Bom. L. R. 297 (300).

SEC. 415 ]

OF CHEATING

811

misrepresentation of a definite fact with intent to defraud cognizable by the
senses— as where aseller represents the quantity of coals to be fourteen Cwt. whereas
it is in fact only eight Cwt. but so packed as to look more ; or where the seller by
maneuvering, contrives to pass off testers of cheese as if extracted from the cheese
offered for sale, where it is not, is a false pretence, indictable under 7 and 8 Geo.
IV, c 29, s. 53 (k).

To constitute the offence of cheating, there must be a deception which must
precede and induce, under the first part of this section, the delivery or retention of
property or the act or omission referred to in the second part (1).

A person professing to tell fortunes published advertisements in various
newspapers offering to cast nativities, give yearly advice and answer astrological
questions and was convicted as a rogue and vagabond under 5 Geo. IV, c. 83, s. 4
as it was established on evidence that there was an intention on the part of the
accused in professing his ability to tell the fortune of a person (m).

An indictment for obtaining money by false pretences cannot be sustained,
if the prosecutor when he parted with his money knew the representation to be
false (n).

A man may be guilty of an attempt to cheat although the person he attempts to
cheat is forewarned and is therefore not cheated (o).

In the case of 4 Hensler ' (o) Blackburn, J., said : “ You may attempt to steal
from a man who is too strong to prevent you,” and Meller, J., said “Or an attempt
may be made to steal a watch that is too strongly fastened by a guard. Here the
prosecutor had the money, and was capable of being deceived and the prisoner
attempted to deceive him.*'

The Bombay High Court has held for cheating there must be deceit. Where
the accused who had sold goods worth Rs. 2-13-0 to a customer and received from
him two currency notes, one of Rs. 2-8-0 and the other Re. 1 but tendered as
change only 0-9-3p. saying that the notes were not worth their face value and
that 1 anna and 9 pies was charged by the shop-keeper on that account ; the accused
pleaded guilty to the charge of cheating and he was convicted and sentenced but
applied to the High Court in revision. The High Court held that the admission
of the facts in the particular case was not an admission of the offence and the
evidence not supporting deceit, the conviction should be set aside (p).

4 Any person* : — The words in this section are ‘ delivery to any person ’ which
include even an agent and the Post-office can be deemed to be such an agent
vis-a-vis (q).

Accused .may be convicted whether the prosecutor had means of
detecting thedeceit or not : — A person, who fraudulently offers a £\ bank
note as a note fo? £5 and gets it changed upon that representation, may be
convicted under the Statute for obtaining money by false pretences, although the
party to Whom it was passed could read and the note upon the face of it afforded
clearly the means of detecting the fraud (r). It is no bar to a cbnviction that the
accused intended to cheat the complainant if he could (s).

(A) Thomas Goss, (1860) 8 Cox. 262.

(l) Ramnath Kalapahar , (1906) 2 C. L. j. 624 (613).

(m) Penny v. Henson , (1887) 18 Q. B. D. 478.

(n) William Mills, (1067) 7 Cox. 263.

(o) (1870) 11 Cox. 670, followed in The Govt, of Bengal v. Umesh Chandra
Mittcr, (1888) 16 C. 310.

(p) Murarji Raghunalh , (1919) 43 B. 842 : 21 Bom. L. R. 763 : 20 Cr. L. J. 684 :
52 I. C. 604.

(q) . M. A.Kaleek , alias James Cooper , (1927) M. W. N. 221 : 62 M. L. J. 511.

(r) Jessop, (1858) 7 Cox. 399.

(s) Hudson , 1 Bell C. C. 263. »

612

THE INDIAN PENAL CODE t CHAP. XVlt

False representation need not be in words To constitute the offence
of cheating it is not necessary that the deception should be by express words, but
that it may be by conduct or implied in the nature of the transaction itself (t).
Although there might not have be&t any words used to tell the complainant that
the accused was a police-officer yet from the facts that the accused wore a khaki
shirt and threatened to take the complainant to the thana, it could be inferred that
the accused gave the complainant to understand that he was a police-officer which
he was not, and that he had the authority to take him to the thana which
authority he did not possess, and this was held to amount to 4 deception * (u).
The selling of milk and water in about equal proportions as pure milk will support
a finding of cheating (v). Where the offence charged, consisted of selling or pawn-
ing sundry coins' which had been gilt or covered with gold, the Allahabad High
Court held that the offence would be one of cheating and not an offence under
* Chapter XII of the Code (w). The complainant who was a tenant of the accused
was sent for by the accused by a nagdi and the accused demanded payment of rent ;
the complainant went home to fetch money and paid the same to the accused who
drove him away refusing to give iakhilas or return the money until Rr. 25 were
paid towards Swadeshi subscription by the complainant, the accused was there-
upon convicted under Ss. 406 and 417. The Calcutta High Court held that there
was no misrepresentation but an illegal demand and the case did not come within
the purview of criminal law (x). Where the accused in order to create false evi-
dence that he had paid off a sum of Rs. 650 which he owed to the complainant sent
to the complainant blank sheets of paper in an insured letter after writing on the
cover * Insured for Rs* 650 * and the complainant gave a receipt to the Post Office
acknowledging the letter, it was held that the accused was guilty of attempt to
cheat the complainant (y). A contrary view has been held by the Calcutta High
Court where it has been held that a person who handed over to the Post-master an
insured letter purporting to contain Government currency notes but which on receipt
by the addressee is found to contain only a letter advising the despatch of notes and
pieces of waste paper is not guilty of cheating (z).

The defendant sent for sale to a public market pigs which he knew to be infected
with a contagious disease and they were exposed for sale subject to a condition
that no guarantee would be given and no compensation would be made in respect
of any fault. No verbal representation was fnade by or on behalf of the defendant
as to the condition of the pip. The plaintiff bought the pigs and put them with
other pigs which became infected. Lush, J., held that merely sending infected
pigs is not a deceit on the public, but unless the evidence shows that the defendant
thought that they have no disease, he was not liable to the plaintiff (a). It is not
necessary to show that the false representation by which a person if*cheated is made
to him individually or that there was any intention to defraud generally (b).

•t '+ >4

Where the Directors,, Manager and Accountant put before the share-holders
a false balance-sheet knowing the insolvency of the Bank and at die time they issued

(t) Kkodabux v. Bakeya Mundari, (1905) 32 C. 941 : 9 C. W. N. 1006 : 2 Cr. L. T.

764, followed in Ramchand v. Jai Dial, (1914) P. W. R. No. 18 of 1915 ; 16 Cr. L T.
657 : 30 I. C. 641. . ’ J

(u) AH Hussain , (1932) 56 C. L. J. 73. *

(v) Nana , (1880) Unrep. Cr. C. 145.

(w) Khusali, (1906) 29 A. 141

(x) Ashutosh v. Kumeda Charan Ghose, (1911) 15 C* L. J. 515 ; Birjaj Mar war i L

(1913) 17 C. W. N. 294. \

(y) Sadholal, (1916) 1 P. L. J. 391 ; Arura , P. L. R. No. 299 of 1913.

(z) Raman Behari Roy , (1923) 50 C. 849 : 28 C. W. N. 252 : 24 Cr. L. T. 686;

73 I. C. 780 : A. I. R. (1924) Cal. 215. J ^

(a) Ward v. Hobbs , (1877) 2 Q. B. D. 331.
o) Per Lord Russell, C. J., in SUverhck , (1894) 2 Q. B. 766,

OF CHEATING

813

SEC. 415]

the balance-sheet they concealed the true condition of the Bank and thereby
induced depositors to allow their money to be deposited in the Bank, the Allahabad
High Court held that the accused were guilty of cheating under s. 418 (c).

Dishonest concealment of facts explanation to this section says :

“ A dishonest concealment of facts is a deception within the meaning of this
section." In other Words, no body can be said to have dishonestly concealed facts
unless he has suppressed facts which it was his legal duty to disclose.

Bramwell, B., observed : “ The fraud must be committed by the affirmance
of something not true within the knowledge of the affirmer or by the suppression of
something which is true and which it was his duty to make known " (a). Follow-
ing this English case, the Allahabad High Court held that the vendor of immoveable
property cannot be convicted of cheating if he refrained from disclosing the exists
ence of the incumbrance but it would be fraudulent if it i9 shown either that he was
asked by the vendee whether the property was encumbered and said it was not,
or that he sold the property on the representation that it was unencumbered (e).

The expression # material defect * in s. 55 of the Transfer of Property Act
includes a defect in the title to an estate (f).

No concealment is dishonest within the meaning of this section unless the
pereon concealing is legally bound to disclose it (g).

A dishonest concealment of facts is deception within the meaning of s. 415 (h).

Silence as to defects : — Although the acts of exposing in a market for sale of
animals destined for human food does not imply a warranty that they are free from
disease so as to make the seller responsible if they should turn out to be infected,
whether he knew of their condition or not ; it does amount to a representation that
as far as he knows they are not so infected, and when he does this with knowledge
that they are tainted with a contagious or infectious disease he is as much guilty of
deceit as if he had made the representation in words (i). It is submitted that mere
silence as to a defect known would not be a deception within the meaning of s. 415.

Every false representation is not * deceit ’ amounting to cheating

A simple misrepresentation of the quality of goods is not a false pretence within
the Statute 7 and 8 Geo. IV, c. 29, s. 43 provided the goods are in specie that they
are represented to be. Thus in a case where the prisoner in order to obtain an
advance of money on a large quantity of plated spoons, represented to a pawn-
broker that they were of the best quality equal to Elkington’s A and that the
foundation was the best material and that they had as much silver upon them as
Elkington’s A, knowing that to be untrue, the Jury found the prisoner guilty of
fraudulently representing wilfully false representations, held that the conviction
was wrong, and tha| the representation being a mere exaggeration or putting of the
quality of the {goods in the course of a bargain it was not a false pretence within the

a* * "

(c) Moss, am) 18 A. 88, see also Esdaile, 1 F. and F. 213 ; Burch, 4 F. and F.
407 ; Bumes v. Pennell , 2 H. L. C. 497.

(d) Horsfall v. Thomas, (1882) 31 L. J. Ex. 322 (328).

(e) Bishan Das, (1905) 27 A. 561 : (1905) A. W. N. 98: 2 A. L. J. 268: 2
Cr. L. J; 218, followed in Karachi Municipality v. Bhojraj , (1915) 9 S. L. R. 97 : 16
Cr. L. J. 718: 30 I. C. 994; Gendanlal v. Abdul Aziz, (1904) 27 A. 302.

(f) Transfer of Property Act IV of 1882, S. 55.

(g) Haji Essa SullemcM v. Dayabhai , (1895) 20 B. 522 ; (civil case) followed
in Karachi 4 Municipality v. Bhoja Raj, (1915) 9 S. L. R. 97 : 16 Cr. L. J. 706 : 30
j t c, 904

(h) T. C. S. Martindale, (1924) 52 C. 347 : 29 C. W. N. 447 (468) : 40 C. L. J.
256 : A. I. R. (1926) Cal. 14 Soda Ram, (1920) 18 A. L. J. 408.

6) -Ward v. Hobbs, (1877) 2 6. B. D. 331 (335), following Emmerton y. Mathew,
31 L. J. (Ex.) 139,

814

THE INDIAN PENAL CODE

[CHAP. XVII #

Statute (j). Wtiere the Magistrate convicted the accused under s. 417 for falsely
telling his masters brother that his master was ill in a certain village and so inducing
him to go to that village, it was held that the conviction could not be upheld unless
it appeared that the accused 4 fraudulently or dishonestly 'induced the complainant's
brother to do a certain thing which he would not have done, if not so deceived and
which act caused or waslikely to cauae damage or harm to him in body, mind, repu-
tation or property (k). Where a person fraudulently gave his false name and
address to the Sanitary Inspector in order to shield himself from prosecution for an
offence and there was no evidence that the accused gave a false name * fraudulently, 9
it was held that he could not be convicted under s. 417 (1). C was convicted^ of
obtaining potatoes from the prosecutor by falsely pretending that he was then in a
large way of business and that he was in a position to do a good trade in potatoes,
and that he was able to pay for a large quantity of potatoes as soon as the same might
be delivered to him : the evidence consisted of a letter by C. It was held affirming
the conviction that the words of the letter were fairly and reasonably capable of a
construction supporting the pretences charged (m). Where the accused agreed
to let her daughter on hire to the complainant for concubinage for a period of one
year in consideration of paying Rs. 70 and in pursuance of this agreement the
complainant paid Rs. 55 in advance, but the accused, four or five days later
refused either to deliver her daughter to the complainant or to return Rs. 35 and
was convicted of cheating, the Bombay High Court held that the contract being
for immoral purpose, the complainant would not be entitled to obtain relief trom
civil Court for its breach and so he could not be allowed to prosecute and the con-
viction was set aside (n). A mere breach of contract is not prime facie evidence of
an original intention to defraud (o).

Where the prisoner induced the prosecutor to buy a chain by knowingly and
falsely asserting 4 it is 15 carat fine gold, and you will see it stamped on every link 9 ,
in point of fact, it was little more than 6 carat gold, it was held that the above
assertion was sufficient evidence of the false representation of a definite matter
of fact to support a conviction (p).

On an indictment for obtaining money by false pretences it was proved that
the prisoner, a travelling hawker, represented to the prosecutor's wife that he was
a tea-dealer from Liecester, and induced her tp buy certain packages which he stated
to contain good tea, but three fourths of the contents of which was not tea at all, but
a mixture of substances unfit to drink and deleterious to health. The Jury found
that the prisoner knew the real nature of the contents of the packages that it was not
tea, but a mixture of articles unfit for drink, and that he designedly falsely pretended
that it was good tea with intent to defraud and the prisoner was. convicted ; it was
held that the conviction was right (q). %

• fraudulently or dishonestly induces the person so deceived to deliver
any property to any person or to consent that any person%b*U retain any
property 9 : — There must be a fraudulent or dishonest intention and* the fraud
must have produced either of the results mentioned in this section (s. 415) and lastly
the prosecution is to show that the person on whom fraud was practised, was as a

(j) Bryna, (1857) 26 L. J. (N. S.) M. C. 85: 7 Cox. 3 13, followed i$ Levine,
(1867) 10 Cox. 374 and W . H. Da Costa v. J. P. Deefholts , (1924) 29 C. W. N. 362
(364).

(k) Punja, (1888) Rat. Unrep. Cr. C. 423. •

(l) Ladha, (1893) Rat. Unrep. Cr. C. 635. *

(m) Cooper, (1877) 2 Q. B. D. 510.

(n) Jani Hira t (1912) 14 Bom. L. R. 603. *

(o) Kadir Bux, (1871) 3 N. W. P. H. C. R. 16. t

(p) John Ardley, (1871) 12 Cox. 23. « ' •

-fy) Foster, (1877) 2 Q. B. D. 301.

SEC. 415]

OF CHEATING

815

matter of fact deceived and that as a result of the fraud he did the act or omitted to
do what he would have done, were he not thus deceived.

* Fraudulently ’ has been defined in s. 25 and ' Dishonestly, 4 in s. 24.

These words do not control the whole section, which is divided into two
clauses of which the second provides for the case of a person who by deceiving
another intentionally induced the person so deceived to do an act which causes or
is likely to cause damage or harm, although the deceiver has not acted
fraudulently (r).

Where a person who purchased Government rice from a Famine Relief Officer
on condition that he should sell it at the rate of 15 seers per rupee but he sold.a
large portion at 12 seers per rupee and the Magistrate convicted him under s. 420
the Calcutta High Court set aside the conviction (s).

The definition of “fraudulently” (S. 25) is ^ obviously imperfect as it leaves
undetermined the word ” defraud”. The word “ fraudulently ’’ being used in die
section together with the word “ dishonestly ” must mean, if it is to have any
meaning at all, something different from ” dishonestly ” (t). A Full Bench
decision of the Calcutta High Court held that the word “ fraudulently ” is
used in Ss. 471 and 464 together with the word “dishonestly "and presumably
in a sense not covered by the latter word. If, however it be held that
‘ f raudulently ’ implies deprivation either actual or intended, then apparently
that word would perfoim no function which would not have been fully discharged
by the word “ dishonestly ” and its use would be mere surplusage. The word
” fraudulently ” should not be confined to transactions or which deprivation*
of property forms a part (u). The Madras High Court by a Full Bench decision
agreed with the decision of the Calcutta High Court (v).

This section does not require and does not say that the wrongful gain must be
made out of the person deceived. The Code provides that it may be either wrongful
loss to the person deceived or wrongful gain to the person who deceived (w).

Where the accused induced the complainant to part with 98 bags of gram on
the distinct representation that the price would be paid in course of the day and
that he would stay with the complain<mt until the money arrived but he decamped,
it was held that the definition of cheating in s. 415 requires that there should be
deceit at the time when the delivery is taken and that the seller should be fraudujently
and dishonestly induced to deliver the property in consequence of such a deceit (x).
A owed B a debt, of which B could not get payment. C, a servant of A went to
A's wife and obtained two sacks of malt of her, saying that B had bought them of A
C knew this to be false, but took the malt to B, his master to enable him to pay
himself the debt, Coleridge, J., said to the Jury in summing up " Although
prima facie every one must be taken to have intended the natural consequence
of bis own act, yet if in this case you are satisfied that the prisoner did not intend

to defraud A but only to put in his master’s power to compel hiAt to pay a just

(r) Makabat, (1889) P. R. No. 20 of 1889, following Giridharee, (1876) P. R
No. 16 of 1876.

(s) Per Couch. C. J., in Lai Mahomed, 22 W. R. (CrJ 82 (83).

(t) Baburam Rai, (1906) 32 C. 776 (779) : 1 C. L. J. 469.

(u) Abbas Alt, (1894) 26 C. 612 F. B. (621), overruling Haradhan, (1892) 19 C.
880 ; see Soshibkusan, 16 A. 210 (21 7).

(v) Kotamraju, (1905) 28 M. 90 (F. B.). following Abbas AH, (1890) 25 C. 512

\'w) In re. Venn Gopala Mudaly, (1916) 16 Cr. L. J. 762 : 31 I. C. 363 (Mad.).

(x) . Nga Mya, 4 Bur. J.. T. 14 : 12 Cr. L. J. 84 (86) : 9 I. C. 458 ; Deputy Legal
Remembrancer v. Ijjatkulla Hast, (1906) 10 C. W. N. 1005 (1009),

816

THE INDIAN PENAL CODE

[CHAP. XVII

debt, it will be your duty to find him not guilty. It is not sufficient that the pri-
soner knowingly stated that which was false, and thereby obtained the malt, you
must be satisfied that the prisoner at the time intended to defraud A" (y).

Under the English Statute the crime consists in obtaining an article by false
pretences * with intent to cheat or defraud any person of the same \ Under the
Code the offence consists in fraudulently or dishonestly inducing the person so
deceived to deliver any property or consent any person to retain any property.
It follows therefore that the period of time for which the property delivered was
to be kept is immaterial whereas under the English law * intent to cheat * or de-
fraud cannot be established where the possession is not permanent and where there
ia*no loss to owner.

The important question to consider in a case of cheating is whether the intention
of the accused at the time when he received the money was to defraud the com-
plainant (z).

Where a cook received an advance of half a month's pay and travelling expenses
and was engaged for six months but absconded after serving for 24 days, it was
held that there being no evidence to show that at the time at which the accused
person induced the complainant to part with his money he had no intention of acting
fraudulently or dishonestly, the conviction under s. 417 was set aside (a).
A debtor when oppressed by his creditor promised to send him money insured
and the insured cover when opened by the creditor consisted of Kbilafat notes
instead of Government Currency Notes, it was held that whatever other offence
it might be, the act of the accused did not amount to cheating or attempt to cheat (b).
Where accused sent an insured cover purporting to contain eight Government
Currency Notes of Rs. 100 each but the addressee on opening the same found no
Currency Notes in it, the Calcutta High Court held that the accused was not guilty
of cheating as all that the person deceived had been induced to do was that he had
signed a receipt acknowledging the delivery of a cover (c).

Where a mortgagee had purchased a certain land with trees standing thereon
after bringing the land to sale under his mortgage but meanwhile the accused
mortgagor had given the trees m suit to other persons as compensation for certain
trees which the mortgagor had wrongfully aut down and the finding was that the
complainant would not have paid anything for the trees if he had known of these
circumstances, the Allahabad High Court held that the accused was rightly convic-
ted of dishonestly concealing the facts as contained in explanation tos. 415(d).

Delivery or retention of property must be illegal To induce a son
to pay his father's debts by acting merely on the fear of conseauence to his father,
is not cheating. To describe them to be more serious than, in fact, they were likely
to be, may be to deceive, but if a fraudulent or dishonest design, which is an
essential element of the crime of cheating, is not apparent in the person deceiving,
he does not cheat (e).

To constitute the offence of cheating there must be a deception which must
precede and induce, under the first part of this section (s. 4)5) the delivery or

(y) Williams, (1830) 7 C. and P. 354.

(z) Deputy Legal Remembrancer v. Ijjathnlla KazL (1906) 10 C. W. N. 1005

(1009). *

(a) Viraswami, (1881) 1 Weir 478.

(b) Tula Ram, (1923) 21 A. L. J. 865 : A. 1. R. (1924) All. 205.

(c) Roman Behari Roy, (1923) 50 C. 49 : 28 C. W. N. 252 : 24 Cr. L. J. 684 :
73 I. C. 780.

(dj Dorilal, (1911) 17 A. L. J. 500: 20 Cr. L. J. 331 : 50 I. C. 067. '

(e) Raj Coomat Banerjee, (1864) W. # R. (Cap. No. 25),

SEC. 415]

OF CHEATING

817

retention of property or the act or omission referred to in the second part. The
deception may be by words or conduct (f).

Meaning of property The word “property*’ in s. 420 does include
money (g). Property in this section and s. 420, infra , refers only to moveable pro-
perty^ (h). A health certificate has been held to be * property * within the meaning
of this section (i). Railway wagons are no doubt property (j). A certificate that
a person has passed an examination is property within the meaning of Ss. 415 and
420 (k).

Return of ornaments — Dissolution of Marriage : — Owing to the disparity c I
age between a husband and a wife, the father of the husband called a Panchayat
of leading men who determined the marriage and accordingly ornaments were
returned to the bride’s father on taking a formal receipt. The bride’s father there-
after charged the bridegroom’s parents for cheating. It was held that in the
absence of dishonest inducement, the charge could not be entertained (1).

No inducement — no offence : — Where in a proceeding under r. 107, Cr.
P. Code, the pleader of the 1st party having agreed to pursuade his client to give
an undertaking for the protection of the property in dispute the opposite party
withdrew from the proceeding and the first party on his pleader’s persuasion was
willing to file an undertaking but as a matter of fact did not file it owing to the
opposite party not accepting it, held that the pleader cannot be charged under
s. 417 (m).

The inducement must be shown to have been intended for and must have
actually induced him (n). But where the inducement is alleged to be the result of a
series of statements made at different times, it is a question of fact to find whether
these statements were so connected together as to constitute one pretence (o).

Inducement must not be too remote : — Where the accused by making a
false representation that he was an employee of the Calcutta Corporation obtained
asubeription of Rs. 10 from the Health Officer towards the funds of the
Harinampradayini Sabha the object of which was to feed the poor on the occasion
of the opening of the new Municipal office and made over the money to the charity,
the Calcutta High Court set aside the conviction under s. 420 holding that there
was no deception as to cause wrongful loss to the complainant or wrongful gain
to the accused (p). •

Where the prisoner by falsely pretending and representing himself to be a naval
officer, induced the prosecutrix to enter into a contract to lodge and board him at a
guinea, a week, and under this contract he was lodged and supplied by her with
meat and drink for about a week, it was held that the supply of the articles of food
was too remotely the result of the false pretence to support a conviction for obtaining
them by a false pretence (q).

(f) Ramanath Kalapahar, (1905) 2 C. L. J. 524 (531).

(g) Birendra Lai Bhaduri, (1904) 32 C. 22.

(h) Abdul A had, (1882) A. W. N. 6.

(i) In re . Packianathan , 21 Cr. L. J. 478 : 56 I. C. 510, following Ramaswami
Myar, 1 Weir 8; Sashibhusan, 15 A. 210 : (1893) A. W. N. 97.

/f <j) Supdt. and Rembr. of Legal Affairs , Bengal v. Manmatha Bhitsan Chatter jee,
(1923) 51 C. 250 : 28 C. W. N. 1§0 (166) : A. % R. (1924) Cal. 495.

(k) Local Govt . v. Gangaram , 18 N. L. R. 52 : 23 Cr. L. J. 433 : 67 I. C. 619 :
Soshibhusan, 15 A. 210.

(l) Jumman , (1922) 21 A. L. J. 321 A. I. R. (1923) All. 431.

(m) Nrisingha Kumar Mukherjec v. Kumudendu Muhheriee, (1916) 20 C. W. N

U12: 18Cr.L. J.50: 37 I.C. 34. ' '

(n) Rouse , 4 Cox. C. C. 7.

(o) Martin , L. R. 1 C. C. R. 56.

(p) • Ashutosh Mullich , 83 C. 50.

(q) Gardner , (1856) 25 L. J. C. 100, ,See Lamer , (1880) 14 Cox. 497.

5$

816

THE INDIAN PENAL CODE

[ CHAP. XVII

4 intentionally induces the person to be deceived to do or omit to do
anything if he were not so deceived and which act or omission causes or
is likely to cause damage or harm to that person in body, mind, reputation
or property 9 : — Although there is no decided case on the point, one might safely
contend that a person will not be held guilty of cheating if the person to be deceived
were induced to do or omit to do something which is illegal e.g., gambling, because
$. 43, supra , defines * legally bound to do whatever it is illegal in him to omit/

Where certain clerics of the E. I. Railway by false manipulation of the ledgers
and by making unauthorised entries in other documents procured the supply of
more wagons to a colliery aiding than it was entitled to and were convicted on
charges under s. 420 for cheating the said Railway by fraudulently and dishonestly
inducing the same Company to deliver more wagons for the carriage of coal or soft
coke 9 and under s. 417 for cheating the Company by intentionally inducing the
Company to supply the colliery a larger number of wagons than it wa? entitled to
receive which the said Railway would not do if not so deceived and which would
cause or was likely to cause damage or harm to the said Railway in its reputation
and the accused were charged under s. 120-B, the Calcutta High Court in upholding
the order ot acquittal passed by the Sessions Judge held that as the colliery sidings
belong to Railway Company it could not be said that the wagons ever go out of
possession and control of the Railway Company and as such there was no ‘delivery
of property ’ and on the second count of the charge held that damage to reputation
had not been proved and that the charge of conspiracy in so tar as it was based
mainly on suspicion of bribery was unsustainable as bribery had not been proved (r).

Richardson, J„ in Manmathas case (r) held : 44 1 come now to the two forms
of cheating defined in s. 415. They are as follows : —

(1) ‘Whoever by deceiving any person fraudulently or dishonestly induces the

person so deceived to deliver any property to any person is said to

cheat/

(2) ‘Whoever by deceiving any person intentionally induces the

person so deceived to do or omit to do anything which he would not do or omit
if he was not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property, is said to
cheat/ In the first of these forms, cheating i 8 punishable under s. 420 which says :
‘ whoever cheats and thereby dishonestly induces the person deceived to deliver any

property to any person shall be punished with imprisonment,

etc/ * In the second form the offence is punishable under the more general
s. 417 “whoever cheats shall be punished with imprisonment/* etc.

“ Property as it appears to me is delivered when something in the ownership
or possession of one man is delivered into the ownership and the ownership or

possession of another ** on the first charge as the materials on the

record did not substitute it, the learned Judge held that the accused were rightly
acquitted. Next the learned Judge observed: “There remains the charge of
cheating in the second form. In that form the offence does not necessarily involve
fraud or dishonesty. The words of the definition are undoubtedly wide and if
pushed to the full limit of their mear^g might embrace acts which the man in the
street would hardly regard as crimiiiil offences. That observation, however, raises
a question of appropriate punishment in the particular case rather than of con-
struct ion. ^

“CF. 392 of Lord Macaulay’s draft corresponds to the first part of s. 415.
The second part would appear to have been added at some later date after the Code

(r), Superintendent and Remembrancer of Legal Affairs , Bengal v. Manmatha
Bhusan Chatterjee , (1023) 61 C. 250 : 28 £. W. N. 160 : A. I. R. (1928) Cal. 495.

SEC. 415 ]

OF CHEATING

819*

had left its hands and the hands i f the Indian Law Commissioners. The illustra-
tions throw no light on what is meant by damage or harm in body, mind or reputa-
tion and so far as such damage is concerned the offence is not very appropriately
placed in the chapter of the Code relating to offences against property. The essence
of the offence would seem to lie in the possibility of damage or harm being caused

in the said respects or in property But cheating in the second form has

this (additional) peculiarity. The damage is to be caused by the person deceived
to himself. Indirectly it may be the damage is to result from the deceit, but
immediately it is to result from the induced act of person deceived. This no doubt
explains why the word ‘ injury * defined in s. 44 of the Code as ‘ any harm whatever
illegally caused to any person in body, mind, reputation or property ’ was not
employed in s. 415.

“ It does not appear to be necessary that the resulting damage or likelihodd of
damage should have been within the actual contemplation of the accused, when
the deceit was practised. But Authorities in this Court lay down : —

(1) That the person deceived must have acted under the influence of

deceit, Ramanath v. King Emperor , (1905) 2 C. L. J. 524 and Milton
v. Sherman, (1918) 22 C. W. N. 1001 ;

(2) That the facts must establish damage or likelihood of damage, Baburam

Rai v. Emperor , (1905) 32 C. 775 ;

(3) That the damage must not be too remote Mojey v. Queen Empress , (1890)

17 C. 606 ; Kishori Lai Chatterjee , (1905) 9 C. W. N. 764 ; Mahadev
V. Dhonraj , (1908) 12 C. W. N.750 ” (s).

4 cause or is likely to cause damage/ etc. " The word ‘ cause * doubtless
excludes damage occurring as a mere fortuitous sequence unconnected with the
act induced by the deceit, except as every event is connected with preceding events
in an unending chain. On the other hand, the definition as it stands, is wide enough
to include all damages resulting or likely to result as a natural consequence of the
induced act " (n).

There must be damage or harm to the complainant in body, mind,
reputation or property To constitute the offence defined in the second part
of s. 415, (1) there must be deception practised upon a person, (2) by that deception
the person must be induced to do or omit to do something which he would not have
done or omitted to do, had he not been so deceived, (3) such act or omission must
cause, or be likely to cause to the person deceived, damage or harm in body, mind,
reputation or property (t).

Where the complainant, a licensed book-maker allowed the accused to take
bets on credit by reason of the latter giving the complainant a cheque in discharge
of past debts on an assurance of the accused that the cheque would be honoured,
but the cheque was dishonoured on presentation, it was held that the case did not
come within the four corners of this section, because it could pot be said that
the act which the complainant was induced to do by reason of the deception, caused
or was likely to cause loss or damage as it did not follow that had the complainant
refused to take bets on credit, the accused would have made the same wagers in
cash (u). #

Damage must not be too remote : — To constitute the offence under s. 415,
the damage or harm caused or likely to be caused to the person deceived in mind,

(s) Per Richardson, J. in Supdt. and Rembr, of Legal Affairs, Bengal v. Manmatha
Bhutan Chatterjee, (1923) 51 C. 250 : 28 C. W. N. 160 (168) : A. I. R. (1924) Cal. 495.

(t) Muhammad Shah, P. R. No. 34 of 1918 : 20 Cr. L. J. 77 : 48 I. C. 877.

lu) * H. K. Bhedwar v.*Rao Shahat. C. S. R. Rao, 27 C. W. N. 919 : 39 C. L. J

273: 24 Cr. L. J. 748; 74 I. C, 76 : A. I, R* (1924) Cal. 111.

820

THE INDIAN PENAL CODE

[CHAP. XVII

body, reputation or property must be the necessary consequence of the act done by
reason of the deceit practised or must be necessarily likely to follow therefrom (v).

A prostitute suffering from syphilis and communicating the disease to a person
who has sexual intercourse with her may be charged with cheating under s. 417
or 420, if the intercourse was induced by any misrepresentation on her part (w).

Where the accused falsely represented to a person that a woman was of a
higher caste than she really was and thereby induced that person to marry her, the
conviction under s. 420 cannot stand if the complainant was not really deceived.
But a conviction under s. 420 cannot be reversed solely on the ground ex turpi~
causa non oritur actis. The maxim is not a sufficient excuse for a man who acts
in opposition to the provisions of a penal statute (x). Where the accused passed
off a girl as Brahmin and took Rs. 175 from a man engaging her and to solve his
doubts about the caste of the girl made a Brahmin eat the food cooked by her, it
was held that the offence under s. 420, had been committed (y).

Evidence of similar transactions is admissible to prove dishonest
intention under clause (1) : — On the trial of an indictment for endeavouring
to obtain an advance from a pawn-broker upon a ring by the false pretence that it
was a diamond ring, evidence was admitted that two days before the transaction in
question the prisoner had obtained an advance from a pawn-broker upon a chain
which he represented to be of gold, but which was not so and endeavoured to
obtain from other pawn-brokers advances upon a ring which he represented to be
a diamond ring, but which, in the opinion of the witnesses, was not so. It was
held that the evidence was properly admitted (z). In the case where the prisoner
was found guilty of the misdemeanour of attempting to obtain money by the false
pretences, evidence was admitted to prove that the prisoner a few days afterwards
attempted to obtain money by similar false pretences (a). Where the acts did not
show a systematic course of fraud but merely a fraudulent disposition, such evi-
dence was held inadmissible (b). In a case of cheating it is open to the prosecution
to show that the acts charged against the accused were parts of a series of similar
acts committed by him, or in which he was concerned, at or about the time in
question. Evidence of such other acts, whether previous or subsequent to the
frauds charged against the accused, is relevant for the purpose of showing whether
or not the intention of the accused was honest or fraudulent (c). Where three
persons were charged with having cheated B and P and thereby obtained from them
various sums of money by making bogus proposals of loan transactions, it was held
that evidence was admissible that the same three persons had on other occasions
made proposals of much the same kind to other persons to whom they made similar
misrepresentations (d). On a charge against the accused of cheating by falsely
representing that he was the dewan of an estate and could procure for the com-
plainant appointment to the vacant post of manager to the estate, and thereby obtain*
ing a sum of money as a pretended security deposit, evidence of instances of similar

(v) Mojey, (1890) 17 C. 606; Kishorilal Chatter jee t (1906) 9 C. W. N. 764;
Mahadev v. Dhanraj, (1908) 12 C. W. N. 760 ; Mahammad Shah , 20 Cr. L. J. 77 : 48
I. C. 877 : P. R. No. 34 of 1918 ; Harendra Nath Das v. Jyotish Chandra Duit, (1924)
82 C. 188 : 40 C. L. J. 283.

(w) Rakma, (1886) 11 B. 69.

x) Bhati Bechar, (1886) Rat. Unrep. Cr. C. 301.

(y) Komal Das, (1866) 2 W. R. (Cr.) 7. ,

(z) Francis, L. R. 2 C. C. R. 128.

(a) Roebuck, D. and B. 24 : 26 L J. M. C. 101.

(b) Fisher, (1910) 1 K. B. 149. See Indian Evidence Act, Act I of 1872 S* 14;
Prabhudas, 1 1 Bora. H. C. R. 90.

(c) Girdhari Lai, (1910) 11 Cr. L. J. 428 : 6 I. C. 904 : P. W. R. No. 20 of
1910 (Cr.).

(d) Yakub AH, (1917) 39 A. 273,

V

sfec. 416]

oe CHEATING

821

but unconnected transactions with other persons, before and after the date of the
offence charged, is admissible under Ss. 14 and 15 of the Evidence Act, not to
establish the factum of the offence but to prove that the transaction in issue was
one of a systematic series of frauds, and that the intention of the accused on the
particular occasion in question was dishonest and fraudulent (e). On the trial
of an indictment for obtaining eggs by false pretences, it was proved that the
prisoner had falsely represented by advertisements in newspapers that he was
carrying on a bona fide dairymans business. Evidence was admitted that subse-
quent to the transaction in question he had obtained eggs from other persons by
means of similar advertisements. It was held that the evidence was properly
admitted (0* Where the accused living under the certificated guardianship
of his mother, borrowed money from the complainant between the ages 18 and
21 concealing the fact of his minority, it was held by Pigott, J., upholding the
conviction under this section that the evidence of the previous loan transactions
by the minor are relevant under s. 14 of the Evidence Act, as bearing on the inten-
tion, knowledge and good faith on the reverse, of the accused in his subsequent
transaction with the complainant for which he had been convicted (g).

416. A person is said to “ cheat by personation ” if he
„ . cheats by pretending to be some other person,

tion. 6411118 by persona ' or by knowingly substituting one person for
another, or representing that he or any other
person is a person other than he or such other person really is.

Explanation . — The offence is committed whether the individual
personated is a real or imaginary person.

Illustrations ,

(a) A cheats by pretending to be a certain rich banker of the same name. A
cheats by personation.

(b) A cheats by pretending to be B, a person who is deceased. A cheats by
personation.

.

This section defines 4 cheating by personation/

Cheating by personation : — It was held in England that the offence of
* personation 4 is complete when at an election of town councillors the accused, who
is not a voter, hands in a nomination paper to the polling office. To 4 personate *
is equivalent to 4 pretend to be a person * (h). If a person at Oxford, who is not a
member of the University, go to a shop for the purpose of fraud wearing a com-
moner’s cap and gown and obtain goods, this appearing in a cap and gown is sufficient
to constitute the offence although nothing passed in words (i). Where A falsely
represented himself to be B at an university Examination, got a hall ticket under
B s name, and handed and signed answer papers to questions with B’s name, it was
held that A committed the offence of forgery and cheating by personation (j).
Where two girls were bought by the prisoners on speculation, taken to a foreign
and distant district, palmed off as women of a much higher caste than they really
were, and married to two Rajputs after receiving the usual bonus, it was held that the

(e) Debendra Prasad % (1909) 36 C. 573.

(f) Rhodes, (1899) l Q. B. 77.

(g) Sada Ram , 18 A. L. J. 408 : 21 Cr. L. J. 749 : 58 I. C. 253.

(h) Per Crompton. J., in Hague , (1864) 33 L. J. (M C.) 81.

(i) . Barnard , (1837) *C. and P. 784.

(j) Appasamt , (1889) 12 M. 151, followed in Soshibhusan, 15 A. 210.

g22 THE INDIAN PENAL CODE [ CHAP. XVII

prisoners could not be convicted under s. 373, but of cheating and false personation
under Ss. 415 and 416 (k).

Where the accused represented to the prosecutor that a girl was a Brahmin
and thereby induced him to part with his money on consideration of the marriage of
the girl to his brother, when the girl really was of the Sudra caste, it was held that
he was guilty ot cheating by false personation under this section (1). Where the
accused travelled in a railway without a ticket and on arriving at the destination
presented a forged railway pass in the name of the servant of the Assistant Auditor,
a description which never applied to him, it was held that the attempt to cheat by
personation being not successful, the conviction ought to be one under Ss. 419
and 51 1 of the Indian Penal Code (m). Where a person represented a girl to be the
daughter of one woman when she was within his knowledge, the daughter of
another woman, it was held that he was guilty of cheating by personation under this
section (n). A misrepresentation by false description of one's position m life falls
under the heading of cheating and not under that of forgery. Where therefore,
a document purported to have been signed by G. L. Putwaree, and it was said that
it was signed by G, L. but at a time when he was not a putwaree, it was held that
the document was not a forgery within s. 464 of the Penal Code ( o). Mere persona-
tion with no fraudulent or dishonest intention is no offence. For instance where a
servant purchased a stamp paper for his master, giving his master's name as if it had
been his own, it was held that although there might have been personation there was
no cheating as there had been no fraudulent intention fp). Where A intended to
register a deed but was too ill to do so, and B who was known to A personated A
and had the deed registered in her name, it was held that in the absence of anything
to prove that it was intended to defraud any body A was not guilty under s. 419 (q).
Where a witness falsely deposed in his brother's name to avoid the necessity of the
latter's appearance, he was convicted for giving false evidence under s. 193 and not
for cheating under Ss. 416 and 419 (r).

417. Whoever cheats shall be punished with imprisonment
Punishment for cheat- of either description for a term which may
ing- extend to one year, or with fine, or with

both.

Scope : — This section punishes ordinary cases of cheating. The second form
of cheating, viz , clause 2 of s. 415 is punishable under this section. The first
form of cheating viz ., clause I of s. 415 is punishable under s. 420 (s) Ths sec-
tion is confined to simple case'? of cheating. An accused person who obtains pro-
perty by cheating another person is punishable under s. 420 (t). S. 417 deals with
cheating generally, but s. 420 deals with that aggravated species of cheating which
involves delivery of property or destruction of valuable security (u).

(k) Debee Singh, (1867) 6 W. R. (Cr.) 65.

(l) Mohim $hunder Sil, (1871) 16 W. R. 42 (43) Puddomonee, (1806) 5 W. R.
(Cr.) 98.

(m) Govtndaswami Naidu, (191 U 21 M. L. J. 748: 12 Cr. L. J. 406 . II I. C.

600.

(n) Dhunput Ojha, (1867) 7 W. R. (Cr.) 51.

(o) Joykrishna Singh v. Man Putuck, (1874) 21 W. R. (Cr.) 41.

(p) Keruppanna . (1883) 1 Weir 480.

(q) Loothy Bewa, 11 W. R. (Cr.) 24.

(r) Prema Bhika. (1863) 1 Bom. H. C. R. 89.

(s) Per Richardson, J., in Supdt. and Remembrancer Legal Affairs, Bengal v.
Manmatha Bhusan Chatterjee, (1923) 51C. 260 : 28 C. W. N. 160 (168) : A. I. R. (1924)
Cal. 496.

(t) Shew Singh, (1928) 10 L. 513.

(u) Belli Rangayya v, Samappa , (1924) 25 Cr. L, J. 1193 : 82 I. C. 57 : "A. I. R»

(19 25) Mad. 367. ,

OF CHEATING

SEC. 41 7 ]

823

In order to constitute the offence of cheating it is essential, in the first place,
that the person who delivers property should have been deceived before he makes
delivery and in the second place, that he should have been induced to do so fraudu-
lently or dishonestly. The deception may be by words or by conduct (v).

Procedure: — Non-cognizable — Warrant Bailable Compoundable when

permission is given by the Court before which the prosecution is pending (w)— Triable
by Presidency Magistrate or Magistrate of the first or second class.

As this section provides for punishment for the offence of cheating as defined
in s. 415, cl. (2) the prosecution is to prove : —

(1) That the accused deceived some person. The deception may be by
conduct or implied in the nature of the transaction itself and need not be by ex-
press words (x).

(2) That the accused induced the person so deceived to do or omit to do
anything which he would not do or omit to do if he were not so deceived.

(3) That the accused so induced that person intentionally (y).

(4) That such act or omission caused or was likely to cause damage or harm to
that person in body, mind, reputation or property (z).

For the defence — establish by cross-examination or by adducing evidence : —

(1) That the accused did not deceive the complainant.

(2) That assuming that the accused deceived the complainant, the person
deceived had not acted under the influence of deceit (a).

(3) That the accused did not induce the person deceived to do or omit to do,
etc.

(4) That the facts or the evidence for the prosecution did not establish damage
or likelihood of damage (b).

(5) That even if damage is established try to establish that the damage is too
remote (c).

(6) That the damage is not the natural consequence of the induced act (d).

(7) That the person deceived had not suffered any damage or harm in body,
mind, reputation or property. t

Attempt to cheat There is a wide difference between the preparation and
an attempt to commit an offence. The preparation consists in devising or arranging
means necessary for the commission of an offence, an attempt is the direct move-
ment towards the commission after the preparations arc made until a man has done
all in his power to let his action be out of his control, so that the commission of the
sin or the crime would be a natural effect of the actions already committed, there is

(v) Deo Dhari Mahto , 2 Pat. L. T. 211 : 22r. Cr. L. J. 109 : 59 I. C. 921 : A. I. R.
(1922) Pat. 12.

(w) These words in Italics were substituted for “ Not compoundable ** by Act
XVIII of 1923.

(x) Ramchandv. Joylal , 10Cr. L. J. 507 : 30 I. C. 041 : P. W. R. No. 18of 1015.

(y) Nand Lai . (1888) P. R. No. 30 of 1888.

(z) Muhammad Shah , P. R. No. 34 of 1915 : 20 Cr. L. J. 77 : 48 I. C. 877 ;
Rakma, (1880) 11 B. 59.

(a) Ramanath, (1905) 2 C. L. J. 524 ; Milton v. Sherman, (1918) 22 C. W. N.
1001 . •

(b) Baburam Rat, (1906) 32 C. 775.

S Mofey, (1890) 17 C. 000 ; Kishori Lai Chatterji , (1905) 9 C. W. N. 704 ;
v v. Dhonraj , (1908) 12 C. W. N. 750 ; Harendra v. Jyotish , (1924) 53 C. 188 :
40: C.L.j.283.

(d) * Supdt, and Remembrancer . Legal Affairs, Bengal v. Manmatha Bhusan
Chatter jee, 51 C. 250 : 28 C. W. N. 100.

824

THE INDIAN PENAL CODE

[CHAP. XVII

still a mere preparation for the commission and not an attempt to commit the
offence or the sin (e). Where the petitioner owned money to the complainant and
sent a registered and insured packet purporting to contain currency notes in
settlement of the debt but the packet contained waste paper and when the complai-
nant sued the petitioner for the debt the petitioner filed an application in the Court
of the Subordinate Judge to receive the complainant's signed acknowledgment of
the receipt of the packet as collateral evidence in proof of satisfaction the petitioner
was convicted of offences under Ss. 417, 51 1 and 193, held, in revision, that the only
offence committed by the petitioner on the facts found was an offence punishable
under s. 193 and that the S. D. 0. could not take cognizance of that offence withort
sanction from the Subordinate Judge (f).

Where an accused falsely representing himself to be a member of the com-
plainant's firm induced the pleader of the firm to write a letter cancelling certain
contract but which letter was not despatched by the pleader on discovery of the
fraud, it was held that the accused committed the offence under Ss. 417 and 51 1
as he fraudulently induced the pleader to write the letter which he would
otherwise not have done and if the fraud had been successful, it must necessarily
have caused injury to the pleader in mind, reputation and perhaps in his business
and might have involved him in litigation (g). But it has been held in Sheo Pra-
sad's case (h) that taking thumb impression on a blank piece of paper is mere
preparation and as such, not punishable.

In a prosecution on a charge of attempting tc cheat a person, that person need
not be the complainant (i).

An accused cannot be convicted under Ss. 417 and 51 1 unless a dishonest
mind or dishonest purpose is proved on the part of the accused (j).

Abetment Partners in a firm were convicted under s. 417/109 where
it was found that they acted in concert throughout the transaction and had dis-
honest knowledge that a cheque issued by the partners of accused No. 1 would not
and could not be paid (k).

Compounding of offence— offence cannot be compounded by the wife of the
person cheated although she happened to be the complainant (1).

Charge Where the accused (1) forged the registration, endorsement and
stamp on the back of a kflhala by which he kold certain lands to D, (2) produced
before a Sub-Registrar a forged mortgage-deed whereby he purported to mort-
gage to D the identical lands uold under the k<d>ala and (3) produced the said
mortgage-deed before the Secretary of a loan office, in order to induce that office
to> grant him a loan and was tried in one trial on charges under Ss. 467 and 468
with regard to the alleged forgery under Ss. 467 and 471 with regard to the mortgage
deed, and under Ss. 471 and 417-51 1 with reference to the attempt to cheat the
loan office, it was held that as the alleged forgery of the hcbala and the presenta-
tion of the mortgage-deed to the loan office could not be said to be the parts of the
same transaction, there had been a misjoinder of charges (m). Where the accused
acting in concert* made separate representations to each of two sets of persons
present at the same time and induced each to pay individually larger sum of money

(e) Lakshmi Prasad , 23 Cr. L. J. 108 : 65 I. C. 492 : A. I. R. (1923) P. 307.

(f) Vathianatheswami Ayyer, (1926) 51 M. L. J. 800.

(g) MahadevZalv. Dhonraj, (1908) 12 C. W. N. 750.

(h) (1926) Pat. Supp. C. W. N. 110. «

(i) Mahadevlal v. Dhonraj Maisri, (1908) 12 C. W. N. 750.

(j) Briaraj Marwari, (1913) 17 C. W. N. 294 : 14 Cr. L. J. .120 : 18 I. C. 680.

(k) Keshavji Madhavji, (1930) 32 Bom. L. R. 562.

(l) Dajiba, (1926) 51 B. 512: 29 Bom. L. R. 718: A. I. R. (1927) Bom. 410.

(m) Birendra Lall Bhadury, (1903) 30 C. 822. * *

SEC. 417 ]

OF CHEATING

625

than was actually due from him, and where they were tried together under two
charges of cheating, each relating to one of the sets, under s. 420, it was held that
there, should have been as many charges as there were persons cheated, but that
the defect had occasioned no failure of justice (n).

An accused person is entitled to know with certainty and accuracy the value
of the' accusation brought against him. The omission to state the manner
of the cheating is regarded as material or not according as the accused has or has not
in fact been misled by the omission and the omission has or has not resulted in a
miscarriage of justice (o).

Joinder of charge of conspiracy to cheat and offences committed in
consequence: — In an indictment against two persons, there were three heads
of charge. The first head charged both the accused of being members of a criminal
conspiracy to cheat ; and the second and third charged them individually with
cheating or abetting the offence of cheating in pursuance of such conspiracy, held
that the joinder was neither illegal nor the trial bad, if the first charge was not
proved (p).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused ) as follows : —

That you, on or about the day of , at , cheated

XY by deceiving him and intentionally inducing the said XY to do (or omit to do)

something to wit , which the said XY would not do (or omit to do) if he

were not so deceived which caused him (or was likely to cause him) damage (or
harm in body, mind, reputation or property), and that you thereby committed
the offence punishable under s. 417 of the Indian Penal Code and within my
cognizance (or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by me (or by the said Court) on the
said charge.

Place of trial : — Loss is not a necessary element of the offence of cheating.
There must be intention to cause wrongful loss or wrongful gain, but it is not
essential that loss should be caused. Therefore it is the Court within whose
jurisdiction the offence is committed and not the one within whose jurisdiction
loss is caused, that is competent to try a case under s. 417 (q).

It has been held that the deceit* and the delivery in consequence of the deceit
were complete when the money was handed over to the post office at Hyderabad
and the subsequent delivery by the post office to accused was not a necessary
ingredient of the offence, and that therefore the Madras Court had no jurisdiction
to try the accused (r).

Civil dispute : — Where accused, a creditor in whoss favour three bonds for
Rs. 170 were drawn up, is alleged by the prosecution to have accepted Rs. 116
in fqll discharge of all three bonds but to have returned only two bonds and not
the third, and was charged under this section, it was held that the dispute was of a
civil nature (s). See commentary in s. 415, supra.

Where the dispute between the parties seems to be of a civil nature, held 9
the conviction on a charge of cheating is unsustainable (t).

(n) Kailash Chandra Pal , (1918) 46 C. 712.

(o) Kedamath Chakravam, (1924) 29 C. W. N. 408: 41 C. L. J. 173.

(p) Satyanarain MahUta, (1927) 66 C. 858.

(q) Raghubir Saran v.Kurukhetra Motor Service Co., 23 Cr. L. J. 447 : 67 I. C.
623 A. I. R. (1923LLah. 90.

(r) Kaleek. (1926) 62 M. L. J. 611.

(s) Mansaratn, P. L. R. No. 327 of 1913 : P. W. R. No. 26 oi 1913 ; 14 Cr. L. J.
524; 20 I. C. 1004 ; see Amarnath, A. I. R. (1928) Lah. 945.*

(t) ThahurDas. (1927) 28 Cr. L. J. 834 : 104-1. C. 450 : A. I. R. (1928) p. 13

82 6

THE INDIAN PENAL CODE

[CHAP. XVll

418 . Whoever cheats with the knowledge that he is likely
thereby to cause wrongful loss to a person
ledM^ha/wronrfS'io^ whose interest in the transaction to which
may* eiwue the cheating relates, he was bound either by

r s h b°o S ^nd t t e o r pr t otfc e t nder Jaw, orby legal contract, to protect^shall
be punished with imprisonment or either
description for a term which may extend to three years, or with
fine, or with both.

This section punishes the abuse of trust on the part of the cheat who has
knowledge that he is likely thereby to cause wrongful loss to the perron whose
interest in the transaction to which the cheating relates, he was bound either by
law or by a legal contract. It therefore applies to the cases of directors of a limit-
ed company, a trustee, manager, agent, etc .

Procedure Non-cognizable — Warrant Bailable — Compoundable when

permission is given by the Court before which the prosecution is pending (u) — Triable
by a Court of Session, Presidency Magistrate or Magistrate of the nrst or second
class.

■

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of y at — y

cheated XY by f specify , the act constituting the offence with the knowledge that
you were thereby likely to cause wrongful loss to the said XY whose interest in the
transaction to which the cheating related you were bound by law (or a legal con-
tract) to protect, and that you thereby committed an offence punishable under
s. 418 of the Indian Penal Code, and within my cognizance (or the cognizance of
the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Courtj^bn the said charge.

False Balance-sheet : — Where the Directors, Manager and Accountant of
a Bank, dishonestly, that is, to obtain wrongful gain for themselves or to cause
wrongful loss to others put before the share-holders balance-sheets which they
knew to be materially false and misleading and likely to mislead the public as to
the condition of the Bank, and concealed its true condition, and thereby induced
depositors to allow their money to remain in deposit in the Bank, it was held that
they were guilty of cheating in the aggravated form made punishable by s. 418 (v).

419 . Whoever cheats by personation shall be punished with
Punishment for cheat- imprisonment of either description for a term
ing by personation. which may extend to three years, or with
fine, or with both.

, * v ■■ ...

This section provides for the punishment of the offence of * cheating by
personation ’ defined in s. 416. See commentary under s. 416, supra.

Procedure : — Cognizable — Warrant — Bailable — Compoundable when permission
is given by the Court before which the prosecution is pending (w) — Triable by Coiltt
of Session, Presidency Magistrate or Magistrate of the first or second class.

(u)

IMS.

These wdfds were substituted for ‘Not compoundable ^ Jjy JLct XVIII of

Vs

(V) Moss, (1893) If A. 88. 1

(w) These wofdswere substituted tor ‘Not

1*83. ' '• -V '

compotKidah'e ’ i>y Act X'VIII of

SEC. 420 ]

OF CHEATING

827

Charge s — I (name and office of Magistrate , etc.) hereby charge you ( name of
accueed) aaSollows 2 —

That you, bit or about th e day of , cheated XY by

pretending to be AB (or presenting yourself to be AB) or knowingly substituting
AB for CD (or representing CD end EF or represented that you or A were Bor O
and thefeby committed an offence punishable under s. 41 9 of the Indian Penal Code
and within my cognizance (or the cognizance of the Court of Session or the High
Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Where a person attempted to get himself reinstated in the post of Karnam by
the production of a certificate of having passed a certain examination and represent-
ing that the certificate referred to him while in fact it referred to another man
bearing the same name. Held, that in the absence of proof that the representation
caused or was likely to cause damage or harm to the officer to whom the representa-
tion was made either in body, mind, reputation or property within the meaning
of s. 415, the accused could not be convicted under Ss. 419 and 51 1 (x).

Attempt: — A person travelling with a forged Railway pass being detected
should be convicted under this section read with .< 511, although his attempt to
cheat may have been unsuccessful (y).

420. Whoever cheats and thereby dishonestly induces the
Cheating and' dis- person deceived to deliver any property to
honestly inducing deii- any person, or to make, alter or destroy the
very of property. whole or any part of a valuable security, or

anything which is signed or sealed, and which is capable of being
converted into a valuable security, shall be punished with im-
prisonment of lather description for a term which may extend to
seven years, and shall also be liable to fine.

Cheats — s. 415. Dishonestly — s. 24.

Valuable: security— s. 30.

S> 417 punishes cheating under the 2nd clause of s. 415 and this section pro-
vides for punishment for the offence as defined under the first clause of s. 415 (z).

Analogous law There is a corresponding section of the English Larceny
Act 24 and 25 Viet., c. 96, $. 90 of which runs as follows : —

S. 90. " Whosoever with intent to defraud or injure any other person, shall by
any false pretence fraudulently cause or induce any other
Inducing persons by person to execute, make, accept, endorse, or destroy the

fraud to execute deeds whole or any part of a valuable security ; or to write,

and other instru- impress or affix his name, or the name ofsuiy other person,

ments. or of any company, firm or co-partnership or the seal of

any body corporate, company or society, upon any paper
or parchment, in order that the same may be afterwards made or converted into or
used or dealt with as a valuable security, shall be guilty of a misdemeanour, and being

Convicted thereof shall be liable....,*! to be kept in penal servitude

or to be imprisoned."

(x) Marti Kant, (1908) 19 M. L. J. 271.

(y) Govinda Swamy, 21 M. L. J. 748: 12 Cr. L. J. 400: L C. 590.

(z) Pet Richardson, J., in Superintendent and Remembrancer 0 } Legal* Affairs,
Bengal v. Manmatha Bhusan C hatter jee, (1923) 61 C. 250 : 28 C. W. N. 180 : A. I. R.
(1924) Gal. 495 J^see Sher m Singh, (192$) 10 iL 813: >. I. ft. (1928) L. 936.

828

the ihdian penal code

[chap. XVI!

Procedure : — Cognizable— Warrant — Bailable — Compoundable when permission
is given by the Court before which the prosecution is pending (a) — Triable by Court
of Session. Presidency Magistrate or Magistrate of the first class. _

In order to prove the offence of cheating (Ss. 420 and 415) it is necessary to
establish : —

(1) that some one was deceived,

(2) fraudulently or dishonestly, or intentionally, and

(3) by means of such deceit he was induced to change his position either

by parting with property or by doing something to his own injury (b).

Evidence of previous fraud is inadmissible : — The evidence with regard
to a previous act of fraud, viz., that on a particular occasion the accused cheated
another person is clearly inadmissible in law and can not be brought in with the
aid either of s. 14 or s. 15 of the Indian Evidence Act (c).

Charge s — An indictment for cheating under Ss. 415 and 420 of the Penal
Code should state that the property obtained was the propertyof the person de-
frauded. But an indictment defective in this respect is defective for uncertainty
and must be objected to, if at all before the jury is sworn (d) ; The charge must
set out the facts of the case for the prosecution on which it is founded but the
Court will not interfere unless the defect in the framing of the charge which may HI
a material one had prejudiced the accused (e). The charge should contain an
allegation of the person or persons who are alleged to have been deceived ami
induced to deliver any property. The omission should not befegarded as a fatal
defect in the charge when the accused was not misled and no'fjijBure of justice Was
caused by such omission (©, The omission to state the manner of cheating in the
charge is regarded as material or not accordingly as the accused has or has notin
fact been misled by the omission and the omission has or has not occasioned a failure
*of justice (g). In a charge under this section it would be more proper to put
the exact dates on which the offences were alleged to have been committed. But
unless it is proved that the omission to give the exact date! has prejudiced the
accused, the conviction should not be set aside (h).

Form of charge : I (name and office of Magistrate, etc.) hereby charge
you (name of deei^d) as follows. — ...

That you, on or about the— — —— — day of — — — * — -, at- —
cheated XY by dishonestly inducing him to deliver the property (mention the
property) to you and which was the property of the said XY(or to make,' alter or
destroy the whole or any part of a valuable security or anything which is signed or
sealed, and which is capable of being a converted into a valuable security) and that
you thereby committed an offence punishable under s. 420 of die Indian Penal Code
and witRin my cognizance (or the cognizance of the Court of Session or the High
Court). • . - * ■ v or''' ***■'■

And I hereby direct thlt you be tried by me (or hy thd said Coiir© on the
said charge.

(a) These words are substituted for " Not compoundable ’’ by Act XVIII of
1023.

(b) Bhola Singh, (1924) 26 Bom. L. R..211. *»

(c) Per Mukeifi, J., in GokulKhatik, (1924) 29 C. W. N. 483 (484).

(d) Williams, (1862) 1 M. H. C. R. 31.

(e) Per Mukefii, J., in GokulKhatik, (1924) 29 C. W. N. (484).

(f) BiUinggkarst v. Blackburn, 27 C. W. N. 821 (849) : A. X (1924) Cal. 18.

(g) Kedarnath Chakerverty, ( 1924) 29 C. W. N. 408: 40 C. L. j. 172 : A. I. R.
(1926) C. 603.

(h) Farsahd.Ali, (1926) Pat. Supp. C. ->V. N. 207 ‘distinguishing SubTamania
Ayyer, (1901) 25 M. 61 (P. C.j and Asgar Ali Biswas, (1913) 40 C: 840.

SEC. 420 ]

OF CHEATING

829

Place of trial lyDistinguishing KaUek's case (i) on the ground that it was
based on a restricted interjection of the word ‘consequence’ is s. 179, Cr. P. Code,
it was held that the payment of money to the accused in P. District might not be
technically a necessary ingredient of the offence of cheating as defined in s. 415 but
quite obviously it is a consequence of the accused’s act in posting these parcels
and he may be tried in that court (j). Two persons were alleged to have induced
another to part with money at Meerut on the false representation that a barrel
contained a certain quantity of spirits. At Agra it was discovered that the
quantity was less than that it was represented to contain. The accused were tried
at Agra for offences under Ss. 420 and 265, held, that the Magistrate at Agra has
no jusrisdiction in as much as the discovery of the fraud after the delivery of the
article was not a ‘ consequence which had ensued ’ within the meaning of s. 179,
Cr. P. Code (k).

Punishment t — A sentence of imprisonment is obligatory for an offence under
this section (1). Some sentence of imprisonment must be given and the court has
a discretion 'to add or refusing from adding a fine (m).

Charge to Jury : — When a Judge does not draw the attention of the
Jury to the question as to whether the ingredient required by s. 415 were present
on the facts alleged by the prosecution, he misdirects the jury (n). It is not
"necessary in a proper charge to the Jury that the Judge should refer to every possi-
ble point in favour of the accused; it is sufficient if he deals with the more im-
portant ones, and does not unduly press his individual views on the Jury on questions
of fact. The chargai,mu$t be read as a whole (o).

Burden of proo 4 1 — In a case under s. 420, it is for the prosecution to show
that the accused deceived the complainant by making a false and dishonest repre-
sentation, and not for the accused to prove that lie did not act dishonestly (p).
Where the accused pawned six rings which he said to be of gold but which were
subsequently discovered to be of silver gilt, it was held that the burden of proving
that the accused knew that the rings were not what he suggested them to be was on
the prosecution (q). D and M went to H and M asked for a loan on the security
of a ring seemingly, but not really of gold. D assured H that M was an honest
man, and thereby induced H to advance the money. M was convicted under
this section. At the trial the Judge held that it was for M to show that he did not
know that the ring was not of gold/ Held by Knox, J„ that the Judge was. wrong
in throwing the burden of proof on the accused fr). In a case of cheating it must
be shown exactly how the complainant has, in the first instance, been misled and
what loss he has suffered or what attempt to obtain a benefit to his prejudice has
been made by the accused. Relevant topics should not be mixed up with irrelevant
topics and the resultant total of prejudice and suspicion should not be considered
sufficient to justify a conviction for cheating (s). In a case of cheating it is not
sufficient to prove that the accused promised to do some thing at some time or other
and fiuled to do so ; the prosecution must show that the representation made by the

J (102ft) 62 M. L. J. 611.

Gofur Karimbux, (1930) 32 Bom. L. R. 785.

) PragDas V. Daulat Ram, (1925) 13 A. L. J. 1067 : 16 Cr. L. J. 825 ; Raghu-
ran v. Kum Khetra Motor Service, 23 Cr. L. J. 447 (AH.).

(1) Sokan Singh . 27 Cr, L. J. 502 : 04 I. C. 130 : A. I. R. (1920) Lah. 360.

(m) Dharajit, (1029) 27 A. L. J. 400 : A I. R. (1929) All. 200.

(n) Cham Chandra Ghost >. (1928) 28 C. W. N. 414 : 39 C. L. J. 122.

Abdui Salem, (1921) 49 C. 673 20 C. W. N. 680.

Khairati, (1917) 15 A. L. J. 807 : 19 Cr. L. J. 45 : 42 I. C. 1005.

(q) Mata Prasad. 20 Cr. L. J. 769 : 63 I. C. 609.

(A ’ Mata Prasad. 18 A. L. J. 371 : 21 Or. L. J. 362 : 55 I. C. 730.

(s) Moghraj, 18 Cr. L. J. 131 : 37 I. C. 483.

830 THE INDIAN PENAL CODE [ CHAP. XVII

accused was false, i.e., at the time of making it he had no intention of carrying out
the promise (t).

Complaint must be by person deceived r — It is not necessary for the
person actually cheated to file a complaint because under s. 190, Cr. P, Code, a
Court may take cognizance of an offence upon information received from any
person. It is absurd, however, to expect a Court to take any notice of a com-
plaint of cheating except when it is put in by the person actually defrauded (u),
but it has been held in Dajibas case (v) that a complaint of cheating brought by
the wife of the person cheated and compounded by her was no bar to a fresh com-
plaint by the person cheated against the accused on the same facts.

In a case where the accused executed .a kflbala in favour of the complainant
and presented it for registration, but took it back from the Registrar before regis-
tration on the pretext that he could not understand whether it was a mortgage or a
kpbala and having thus obtained possession of the document, tore it to pieces, it was
held that there could not be a charge under this section because there was no com-
plaint by the Sub-Registrar who alone, if at all, was cheated (w).

Abetment: — A person is guilty of abetment under Ss. 109 and 114 of the
Code who introduces the complainant to the cheater knowing fully well that the
offence of cheating is going to be committed, is present at the time when the false
representations and the consequent payments by the complainant are made but
remains silent and though taking no share of the ill-gotten money takes no steps
to inform the complainant of what is going to happen with him (x).

Abetment not charged— conviction if bad : — S. 238 (2-A), Cr. P. Code, does not
justify a conviction for abetment without a separate charge therefor (y). In
Jnanada Charon Ghatak's case (z) Shurawardy, J., doubted the view taken in
Hulas Chand Baid's case (y).

S. 420 read with S. 120-B Where the accused were charged with having
conspired to cheat the Government of India of large sums of money in respect of
the supply of linseed oil, turpentine and water-soluble oil, etc., “and thereby
committed an offence punishable under Ss. 120-Band 420“ and it was
urged in defence that the charge contained allegations amounting to charges of
three different conspiracies and was consequently bad, it was held that the charge
alleged one general conspiracy to commit an ‘offence or offences under s. 420, the
three transactions mentioned constituting ovei$ acts from which the conspiracy
might be inferred and the fact that the three transactions were independent and
occurred on different dates and that between those dates intervened many other
transactions between the accused, and the Government of India which were not
proved to be fraudulent or dishonest was not inconsistent with the existence of
one general conspiracy (a).

Where the accused were tried on a charge under Ss. 120-Band 420 of com*
spiring to deceive unsuspecting Judges of civil Courts by bringing false cases against
innocent persons^and inducing them to pass decrees and thereby to make valuable

(t) Nga Po Yan v. Mohr Bros. 6* Co., Ltd., 0 L. B. R. 38 : 4 Bur. L. T. 279 :
13 C. L. J. 50 : 13 I. C. 386.

(u) Chand v. Ugar Sani, 22 Cr. L. J. 672 : 63 I. C. 464.

(v) (1926) 51 B. 512 : 29 Bom. L. R. 718 : A. I. R. (1927) Bom. 410.

(w) Hira Lai Ghose v. Makhan Lai Daw, 30 C. L. J. 175 : 21 Cr. L. J. 16 : 54

I. C. 64. •

(x) Muradi, P. W. R. No. 6 of 1917 : 18 Cr. L. J. 827 : 41 I. C. 651.

(y) Hulas Chand Baid t (1926) 44 C. L. J. 216 : A. I. R. (1927) Cal. 63 ; see
Mahabir Prosad, (1926) 49 A. 120 (122).

(z) (1929) 50 C. L. J. 472 : 34 C. W. N. 198 : 57 C. 807.

(a) P. E. Billinghurst v. H. C. Blackburn, (1923) 27 C. W. N, 821 ; A. I. R.

(1924) Cal. 18,

SEC. 420 ]

OF CHEATING

831

securities and to cause delivery of properties and so on, it was held that a * decree ’
is not a 4 valuable security 4 and even if it did satisfy the definition of 4 valuable
security 4 within the meaning of s. 415 there is no delivery of any property when
the Court passes a decree, because the original decree remains in Court and the
term 4 valuable security * can only apply to the original document and not to a
copy thereof (b).

Attempt to cheat Where the accused were charged under this section
for cheating the Government of India by dishonestly inducing them to deliver a
cheque for Rs. 59, 265, the property of the Government of India in payment of
five fraudulent bills for linseed oil but the prosecution failed to prove inter alia
that any official of the Government of India was deceived by reason of the fraudu-
lent representations contained in the bills, it was held that though the offence
under this section was not established yet the evidence produced in support of
the charge was sufficient to support a charge of an attempt or attempts on the
part of the accused to commit the said offence (c).

Where a person had sent blank papers under insured cover for Rs. 900
addressed to himself, and on delivery of the cover claimed Rs. 900 from the Post
Office and was charged under s. 64 of the Post Office Act but convicted under
s. 420/511 as no sanction under s. 72 of the Post Office Act had been taken,
held that the conviction under the Penal Code was correct, although it was doubt-
ful whether an offence under s. 64 of the Post Office Act had been committed (d).

Where the accused who was indebted to the complainant despatched to the
latter an envelope insured for Rs. 530 containing two pieces of waste paper, intend-
ing to use the receipt for the same as evidence of payment of Rs. 530 towards the
liquidation of his debt to the complainant, it was held that the accused was guilty
of an offence of attempt to cheating. There may be cases in which * attempt 4 is
not complete until the actor has done each and every act requisite for the per-
petration of the crime but it cannot be laid down that this is a principle governing
all cases. In each and every case the Court has to consider the facts and decide
on the merits not upon any pedantic or hard and fast rule, but in accordance with
common sense. In cases of cheating the essential things are the deception of the
victim, the dishonest causing to arise in the victim’s mind of an impression, the
reverse of truth calculated to induce '’him to give up something he would not
otherwise give up or to do or refrain from doing something which he would not
otherwise do, or refrain from doing, or to enter into a bargain he would not enter
into, if he knew the real facts. Where, therefore, A manufactured spurious trinkets
and took them to N saying they were of gold and that they were stolen property
(which was also not true) and that he A did not like to sell them in bazar and
asked him to buy, which the latter did not, it was held that A committed the offence
punishable under S$. 420-51 1 (0- An attempt is possible even when the offence
attempted cannot be committed. Where, therefore, an accused sent railway
receipts from Harda to Bombay for 300 bales of cotton when he had only 200 bales
inducing A to pay Rs. 40,000 but it was not proved that A would not have paid

(b) Charu Chandra Ghose , (1923) 28 C. W. N. 414 : 39 C. L. J. 1 22.

(c) Billinghurst v. Blackburn. (1923) 27 C. W. N. 821.

(d) Suchit Raut, (1929) 9 P. 126.

(e) Arura, P. L. R. No. 299 of 1913 : P. W. R. No. 30 of 1913 : P. R. No. 1
of 1913 : 14 Cr. L, J. 436 : 60 I. C. 696 ; Sadholal, 1 Pat. L. J. 391 : 17 Cr. L. J.
272 : 34 I. C. 992.

8 Abdulla, (1913) P. L. R. No. 66 of 1914 : P. W. R. No. 13 of 1914 : P. R.
of 1914 : 15 Cr. L. J. 266 : 23 I. C. 473.

(g) Shiamji, (1921) 6 N. L. J. 16 : 23 Cr. L. J. 210 : 66 1. C. 994 : A. I. R.
(1922) Nag. 40.

(h) Sanwaldas, (1917) 11 S. I-. R. 67 : 18 Cr. L. J. 990 ; 42 I. C. 606.

832

THE INDIAN PENAL CODE

[CHAP. XVII

Rs. 40,000 if he had known that there were only 200 bales, it was held that the accused
had committed the offence of attempt to cheat (g). Where some overt acts are
committed by the accused which but for an interruption independent of the will
of the accused would have led to the completion of the offence under s. 420 including
the delivery of property, held, the offence fell under Ss. 420 and 51 1(h). A man
may attempt to cheat although the person whom he attempts to cheat is forewarned
and is therefore not cheated (i). Where the first accused insured his paddy in a
certain godown with three Fire Insurance Companies and on the godown being
burnt down, he first sent the Insurance Companies notices informing them of the
fire and subsequently presented his claims in which he deliberately made false
statements as to the quality of paddy stored in the godown and destroyed by the
fire the Rangoon High Court held that the sending of the notices was an act of pre-
paration but when the accused followed up these notices with the actual claim
papers, he committed himself to a representation of fact which being false to his
knowledge must be regarded as an overt act towards the commission of the offence
of cheating— an act which had gone beyond the stage of preparation (j).

See also commentary under s. 415, supra .

Place of trial : — The complainant was induced to part with his money at
Meerut on the false representation that a certain barrel contained a certain amount
of spirit. At Agra it was discovered that the barrel did not contain the amount
of spirit that it has been represented to contain. It was held that the Magistrate at
Agra had no jurisdiction to try the accused under Ss. 420 and 265, inasmuch as
the discovery of the alleged fraud at Agra after the goods were delivered could
not be said to be a * consequence of which has ensued ’ within the meaning of
8. 179 of the Criminal Procedure Code (k). Where the petitioner was charged
firstly that at Boonoor he induced one K to write bogus telegrams, the offence under
Ss. 468 and 109, and secondly, that he attempted to cheat one P by causing the
despatch of telegrams at Tanjore the offence under Ss. 420 and 511, held , that the
Tanjore Magistrate had jurisdiction to try the offences charged (1).

Section 532 is applicable : — Under the amended Code of Criminal Proce-
dure s. 562 applies to an accused convicted under this section. The amendment
of Criminal Procedure has the effect of overruling Ramjan Daiabhats case (m).

4

Cheating and thereby dishonestly indiicing delivery of property

Where the accused resorted to a trick whereby he obtained the possession and
use of the complainant's monies and to the injury of the complainant secured for
himself the position of advantage properly belonging to the complainant, it was held
that sharp practice of this sort constituted fraud and made the accused liable to con-
viction under this section (n). Where on a charge of cheating R, under this sec-
tion the appellant presented a cheque, in part payment of goods purchased, to A,
a shop salesman, who sent for R, and there was a conversation between them in a
language which the accused did not understand, and R thereupon cashed the
cheque, and the amount, less the discount and the price of the goods, was paid to
the accused, it was held that the offence of cheating was established as the repre-

(i) Shtb Char an , (1928) 10 B. 253, following Maccrea, (1893) 15 A. 173 and the
Govt of Bengal v. Utnesh Chandra Mitter , (1889) 20 I. A. 90 : 16 C. 310.

(j) Maung Po Houyin, (1923) 2 R. 53. ,

(k) Prag Das Bhargava, (1915) 13 A. L. J. 1007 : 10 Cr. L. J. 825: 31 I. C.
1001.

(l) Raman Chettiar , (1926) 51 M. L. J. 636.

(m) (1915) 16 Cr. L. J. 781, followed in Sundaram Aiyer t (1917) 41 M. 533.

(n) Aswini Kumar Chatterjee, (1921) 25 C. W, JL 018 ; 23 Cr. L. J, 221 : 6$
I. C. 1006,

SEC. 420 ]

OF CHEATING

833

sentation was a dishonest concealment under the Explanation to s. 415, supra (o).
Where a municipal. board undertakes house scavenging by means of ‘ customary
sweepers * the rubbish and night-soil collected by the sweepers is the property of
the board. Hence when a Sanitary Inspector, having induced the sweepers to
deposit the matter collected by them in a place other than that prescribed by the
board, thereafter sold it for his own benefit, the Allahabad High Court held that he
was rightly convicted under this section (p). Where one C agreed to purchase a
motor lorry on instalments and stipulated that he undertook not to deal with the
car and admitted that the lorry would remain the property of owners until all the
instalments due were paid but C sold the lorry before the instalments were paid,
the Allahabad High Court held that C was guilty under this section (q).

A person obtaining a certificate of having passed an examination from Deputy
Inspector of Schools by stating untruly that he had passed the examination, while
another of his name did pass, is guilty of cheating (r). Where a person is charged
of cheating by false representation and that representation is in respect of a certain
future event and not as to an existing fact, the prosecution must prove that the
representation was false to the knowledge of the accused at the time it was made.
It is but little to the purpose that in fact that representation has turned out to be
untrue (s).

To uphold a conviction under this section, the prosecution must prove that
the person cheated was dishonestly induced to do a thing which he would not
otherwise have done, and that the act done was likely to cause damage to that person
in property. This damage must not be presumed to be the necessary consequence
of the act. It must be proved by evidence as much as any other part of the offence.
So where the accused took money from a pawn-broker by pledging a nose-ring
alleged to be of gold but which was subsequently found to be partly of gold and
partly of silver, a conviction under this section was set aside on the ground that there
was no evidence to prove the real value of the article and consequently of the likeli-
hood of damage to the pawn-broker (t).

Where the accused falsely represented that he was the dewan of an estate and
could procure for the complainant appointment to the vacant post of the manager
of the estate, and thereby obtained a sum of money as a pretended security deposit,
it was held that the offence under s. 420 was committed (u). Where the accused
contracted to deliver 260 dokras of fully good machine-ginned cotton but delivered
cunningly adulterated cotton, held , he should be convicted under this section and it
is no answer to plead that the fraud imputed invited detection and was bound to be
discovered without delay (v). Where the accused whose duty was to prepare a list of
the current bazar rates of grain and other articles of food on the basis of which the
Military authorities paid to the supplying made incorrect statements of the
said rates to the detriment of the Military authorities, it was held that he had com-
mitted the offence under this section (w). It has been held that an accused, who
by making a false representation that he is an employee of the Calcutta Municipal
Corporation, obtained rupees ten as subscription from the Health Officer of that
Corporation, towards the funds of a charitable society, but duly made over the
sum to the charity, he cannot be convicted under this section, there being no such

(o) Martin dale, (1924) 52 C. 347 : 40 C. L. J, 256 : 29 C. W. N. 447.

(p) Horilal, (1922) 45 A. 281.

S ) C.J.Cadd 9 ( 1923) 45^.588.

Local Govt . v. Gangaram , (1921) 19 N. L. R. 52.

Ebrahitnji, 15 Bom. L. R. 297 : 14 Cr. L. J. 232 : 19 I. C. 328,

Hanuman, 21 Cr. L. J. 583 : 57 I. C. 103.

(u) Debendra Prosad, (1909) 36 C. 573 : 9 C. L. J. 605.

(v) Kanji Shivaji, 14 Bom. L. R. 137 : 13 Cr. L. J. 285 : 14 I. C. 669,

(w) Parameshut butt, (1886) 8 A. 201.

59

834

THE INDIAN PENAL CODE [ CHAP. XVII

deception in such a case as to cause ‘wrongful loss* or ‘wrongful gain (x).
Where the petitioner represented himself to be the President of the Sanatan Hindu
Samity and co-accused as Secretary and that they had been deputed to take up
the cause of Hodis and would invest them with sacred thread on the footing of their
being khoiriyas and money was realised, much in excess of what was origmaily
agreed upon, for writing a book called Jatiyatatwa Scrips of ^ BansaParict ww ^
were given containing the supposed “ Gotra” “ Prabar ” and “ Kaulik Upadhi
of the Hodis and the accused was convicted under s. 420, Mukerji, J.,. held * The
case is one of swindling and perhaps swindling on a large scale. Swindling, however,
does not necessarily amount to an offence of cheating within the meaning of the
Indian Penal Code *’ (y).

Merely inducing a person to execute a document is not an offence unless it is
shown that the inducement was made by some false or fraudulent representation.
Where, for instance, a decree-holder in a certain suit in consideration of the
judgment-debtor executing two bonds promised to get a postponement of the sale
and the judgment-debtor accordingly executed the bonds but the decree-holder
failed to obtain the postponement and retained the bonds in his possession, it
was held that no offence under this section was made out (z). Mere handing
over the rules of a club by its servant does not make members criminally responsible
for representations contained in the rules (a).

To obtain goods on credit on a false representation is an offence even though
the accused may have the intention of eventually paying for it. For instance,
where the accused induced the complainant to deliver to him a bicycle under false
representations that he was a commission agent and that the machine was required
for an up country purchaser, but after taking its delivery he negotiated its sale
to a customer in Bombay, it was held that the offence of cheating and dishonestly
inducing a delivery of property was complete as soon as the bicycle was handed
over (b).

Property— under this section includes money (c) but not ‘immoveable
property * (d).

A * decree * is not a valuable security and assuming it is a valuable security a
copy of a decree is not a valuable security (d 1 ). An acknowledgment of receipt
of an insured parcel is not a valuable security (d 2 ). Where the accused in order to
create false evidence sent some blank sheets of paper through insured cover, held ,
he was guilty of attempt at cheating (e). The Madras High Court in the case of
Vaithianathsu)amy Aiyer (e) noted under s. 417 has held in similar circumstances
that the offence does not amount to cheating (e). The Calcutta High Court in
Raman Behans case (f) held the same view but the Allahabad High Court in
Tuta Ram’s case (g) have held a contrary view.

When an accused administered liquor to the complainant and induced him
while under intoxication to sign a document purporting to be a money-bond but

(x) Ashutbsh MuUich , (1906) 33 C. 50.

(y) Kedar Nath Chakruverty, (1924) 41 C. L. J. 172 : 29 C. W. N.408* A I R

(1925) Cal. 603. ’

(z) Meghraj , 18 Cr. L. J. 131 : 37 I. C. 483.

(a) Chellam Chetty , (1926) 39 M. L. T. 596 : A. I. R. (1928) Mad. 224

(b) Banaji Framji Munshi. (1900) 2 Bom. L. R. 621.

(c) Birendra Lai Bhadury, (1904) 32 C. 22 : 8 C. W N 784

(d) Abdul A had, (1 882) A. W. N. 6. *

(dl) Charu Chandra Ghose, (1923) 28 C. W. N. 39 C. L. J. 122 : A. I. R # (1924)

Sandho Lai, (1016) 1 P. J*. J. 391.

(e) (1926) 61 M.L. J. 800.

(f) (1923) 60 C. 849.

($) (1923) 21 A. L. J. 866. .

OF CHEATING

835

SEC. 420 ]

which in reality was a deed of divorce, the offence committed is one under s. 420
and not s. 417 of the Indian Penal Code (g 1 ).

Payment denied i — Where an accused, in spite of receiving from his debtor,
the complainant, cash and cattle in payment of what he owed him, gave him notice
later on for payment of the debt originally due, and denied what he had already
received, it was held that the accused could not be convicted under this section
because there was nothing to show that he received payment with the preconceived
intention of denying it later on. If he subsequently denied he cannot be said
to have cheated the debtor though this conduct of him was highly reprehensible (h).

Balance of consideration —money for sale not paid : — The complainant’s
case was that he was cheated in not paying by accused No. 1 the balance of consi-
deration money for sale of two thatched huts after setting off on account of debt
due to the said accused and that accused No. 2 abetted accused. No. I in denying
his liability. The agreement was that the balance was to be paid on the execution
of the document. The document was registered. Held that the dispute _ was of
a civil nature and in fact and upon the recitals in the hobala the ingredients in
s. 420 were not satisfied (i).

Raising money on house already sold in execution t—A, a judgment-
debtor in an execution case, applied under Or. XXI r. 83 of the Civil Procedure
Code, for permission to raise the amount of the decree by a private transfer of his
house which had already been sold in auction. The application was rejected by
the Court and yet he induced a man to advance him money on a mortgage of the
house in question on a representation that he was empowered to effect the mortgage,
to pay off the decretal amount. A received a portion of the money himself and
induced the mortgagee to pay the rest to the decree-holder, but allowed the sale
to be confirmed by the Court and subsequently received from the executing Court
the entire sale proceeds stating that he had paid the decree-holder out of his own
pocket. It was held that a prima facie case of an offence under s. 420 existed
against A (j).

Cheating in respect of one's own property Where a person, who had
pledged promissory notes in his favour with another as security for a loan, dis-
honestly induced the latter to hand fiver the same to him by pretending that he
required the same to collect money from his debtors with the aid of which he would
pay cash to the complainant, it was held that his act constituted an offence of cheat-
ing punishable under this section (k).

Non-fulfilment of representation There is no authority for the proposi-
tion that a charge of cheating cannot be based upon the intention of not performing
a promise non-fulfilment of which would not constitute a cause of action in a civil
court. Where, therefore, a person represents to another that he is in a position to
counterfeit currency notes, without any intention of trying to counterfeit, and thus
induces that person to advance money, the offence of cheating rflider this section
is complete (1).

(gi) Bakhtwar Singh, 3 Lab. L. J. 283 : 23 Cr. L. T. 428 : 67 I. C. 588.

(h) Ramsatan, A. I. R. (1923) Lah. 620.

(j) Ramckandra De v. Gajendra Nath Das, (1916) 43 C. L. J. 287.

(j) Ramchand v. Jai Dial, P. L. R. No. 114 of 1912 : P. W. R. No. 10 of 1912
(Cr.) : 13 Cr. L. J. 456 : 15 1. C. 88 ; see Ramdayal Mehta, (1 926) 9 P. L. T. 383 : A. I. R.
(1929) P. 337.

(k) Venkata Gurunatha Sastri, (1923) 45 M. L. J. 133 : (1923) M. W. N. 313 :

32 M. L. T. 234 : 24 Cr. L. J. 452 : A. I. R. (1923) Mad. 597.

(l) , Meera, 10 Bur. L.,T. 256: 18 Cr. L. J. 362 : 38 I. C. 746; Local Govt., v.

Jham Singh, 21 Cr. L. J. 820 : 58 I. C. 820, contra, in Jani Hira, (1912) 14 Bom.

L. R. 503: 13 Cr. L. J. 521 : 15 l. C. 793. •

836

THE INDIAN PENAL CODE.

[CHAP. XVII

False representation : — Illegal and immoral contract— It seems to have been
held in a Bombay case that a complainant who makes an immoral agreement with
the accused, should not be allowed to prosecute the latteron a charge of cheating
on the latter’s failure to fulfil the agreement (m).

*

Passing a woman to be of different caste and 4 taking money on that
representation is cheating : — Where an accused represented a Rajput girl to be
of Kunbi caste to the complainant who was thereby induced to pay a sum of money
to the accused for her and marry her, it was held that the offence under this section
had been committed (n).

Receiving money to exert influence to restore the complainant back
into the caste is no cheating : — Where the accused made a representation to R
and C that on the latter’s paying Rs. 500, he would smoke huhfca with them and
would do all he could to have them taken back into caste, got the money from the
complainants, smoked hukfca with them but subsequently did not take any action
in the matter, it was held that he could not be convicted under this section (o).
Where an accused receives money for investing a depressed class with holy thread
he does not commit cheating if the said depressed class believes that they are entitled
to wear sacred threads and the accused actually invests them with sacred
threads (p).

Dishonest intention : — In cases under this section the evidence must establish
the existence of a fraudulent or dishonest intention at the time of the commission of
the act in respect of which the cheating is alleged (q). Accused, who was the
broker of the complainant company and had had a long series of transactions with
them, obtained an advance from the company by representing that he had a certain
amount of paddy ready for delivery to the company, and wanted the advance to
complete the payments. Thereafter he delivered a small amount of paddy to the
company and failed to deliver the rest. It was found that although his represents*^
tion to the company was not altogether true, it was not entirely false and he had
made bona fide efforts to carry out his engagement with the company but had failed.
It was held that from the circumstances of the case no irresistible inference could
be drawn that the accuesd had made a false representation to the complainant,
knowing or having reason to believe it to be false and consequently no offence of
cheating had been committed (r).

Title to current coin : — Title to money which is current coin of the realm
passes by mere delivery to a person who receives it in satisfaction of a lawful debt
due to him. Where, therefore, during the police investigation of a case under
Ss. 420 and 467 of the Penal Code, it appeared that the accused had delivered over
a sum of Rs. 1 , 1 68 to his creditors, this money being part of the proceeds of cheating,
and the police recovered it from the creditors, it was held that the creditors were
entitled to the money and that it must be returned to him (s).

For further commentary see notes under s. 415.

(m) Jani Hira, (1912) 14 Bom. L. R. 503 : 13 Cr. L. J. 521 : 15 I. C. 793.

(n) Local Govt. v. Jham Singh , (1920) 21 Cr. L. J. 820 (Nag.) : 58 I. C. 820 :
Dhunuput Ojhah, (1867) 7 W. R. (Cr.) 517.

(o) Mohon, (1923) 8 O. L. J. 683 : 23 Cr. L. J. 664 : 69 I. C. 152 : A. I. R.
(1924) Oudh 195.

(p) Kedar Nath Chakravevty, (1924) 29 C. W. N. 408 : 41 C. L. J. 172 : A. I. R.
(1925) Cal. 603.

(q) Debendt a Prasad, (1909) 36 C. 673 ; Jaffar Ayub Kalchi, (1921) 23 Cr. L. J.
589 : : 68 I. C. 621 : A. I. R. (1922) Nag. 195 ; see AH Hussain , (1932) 66 C. L. J.
73 : Cr. L. J. 530.

(r) MaungPo Lu t (1923) 1 R. 397 : 2 Bur. L. J. 139: 25 Cr. L. J. 236: 76

SEC. 421 ]

OFFENCES AGAINST PROPERTY

837

Of Fraudulent Deeds and Dispositions of Property.

421 . Whoever dishonestly or fraudulently removes, con-
Dishonest or fraduient cejrfs- or delivers to any person, or transfers
removal or concealment or causes to be transferred to any person,

distribution among ere- without adequate consideration, any property,
ditors - intending thereby to prevent, or knowing it

to be likely that he will thereby prevent, the distribution of that
property according to law among his creditors or the creditors of
any other person, shall be punished with imprisonment of either
description for a term which may extend to two years, or with
fine, or with both.

Dishonestly— s. 24. Fraudulently— s. 25.

This section punishes dishonest or fraudulent removal or concealment of pro*
perty to prevent distribution among creditors.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate, or Magistrate of the first or second class.

Jurisdiction: — The ordinary criminal court has jurisdiction to try an
aC /»vyd for an offence under s. 421, even when the accused is an adjudged insolvent
under the provisions of the Presidency Towns Insolvency Act. Where the Presi-
dency Towns Insolvency Act, 1909, creates an offence, it is the Insolvency Court
which has jurisdiction as to it. But as to offences under the Indian Penal Code,
the ordinary jurisdiction of the criminal courts cannot be held to be excluded
u n ] es3 e xpressl y or by necessary implication the Act repeals the Code for the purposes
of those offences. S. 103 of the Act creates a new offence and does not interfere
with this section (t). The Presidency Towns Insolvency Act does not take away
a M agi strate’s jurisdiction to try an insolvent for an offence under Ss. 421 and
424 (u).

Charge I (name and office of, Magistrate, etc.) hereby charge you (name
of accused) as follows •

That you, on or about the day of -, at— ,

dishonestly (or fraudulently) removed (or concealed or delivered to a. certain person,

to w jj — . XY without adequate consideration) certain property to

w j t — intending thereby to prevent (or knowing it to be likely that he

will thereby prevent) the distribution of that property according to law among your
creditors (or the creditors of any other person to and that you

thereby an offence punishable under s. 4ZI or the Indian renal Lode,

and within my cognizance. .

And I hereby direct that you be tried on the said charge.

Duhomst or fraudulent removal or concealment of property to pre-
vent distribution amongst creditors s— ’ Where a person in anticipation of an
advene verdict against him in an action for damages and to defraud and deprive
the a wn*— 1 ful plaintiff of all damages and costs to be recovered in the said action
contrives and prepares a feigned and fraudulent conveyance, he commits an offence.

(tl Mulshankar Harinand Bhut, (1910) 35 B. 63 : 12 Bom. L. R. 750,
(u) U Mo Gang v. V Po Sin, (1928) 6 R. 664.

838

THE INDIAN PENAL COt>E

[chap. XVll

In England such an act is an offence within 13 Eliz., c. 5, s. 3 (v). Where two
persons, who are partners of a newspaper concern, after a judgment of damages
against them for a newspaper libel, dissolves the partndfehip by executing a fraudu-
lent bill of sale of the partnership assets for the purpose of depriving the successful
plaintiff of the fruits of his judgment, they commit an offence (w).

Where a benami transaction is made in fraud of the creditors the benamidar
is liable to punishment under this section (x).

Where A entered into an agreement with B not to compromise a case with
C, because he had assigned the benefit of the suit to B as a security for the due pay-
ment of some monthly instalment of money, and A notwithstanding did afterwards
compromise the suit with C, it was held that A could not be convicted under this
section, unless the compromise with C was made dishonestly or fraudulently
towards B (y). The accused mortgaged their property and under the terms of the
agreement certain persons were appointed managers of the estate under certain
conditions in regard to payments of the monies realised by them. In execution
of a decree obtained by the manager in a suit brought in the names of the mortgagors
a certain putni taluk was sold for Rs. 3,000. The debtor settled with the accused
mortgagors that on payment of Rs. 1,000 the sale was to be set aside. The money
was paid into Court and an application was made by the accused for the withdrawal
of this money, but the Court made no order on this application. It was held that
having regard to the relation between the mortgagors and their managers at whose
instance the proceedings were taken it could not properly be said that an attempt to
commit an offence under s. 422 of the Penal Code was made out. The interference
of the accused mortgagors and their application to obtain the money paid into Court
might have been breaches of their contract with the mortgagees but such conduct
could not necessarily be regarded as dishonest or fraudulent so as to render them
liable to punishment (z).

422. Whoever dishonestly or fraudulently prevents any
Dishonestly or frau- debt or demand due to himself or to any
deMbdng avSJffo? other person from being made available
creditors. according to law for payment of his debts or

the debts of such other person, shall be punished with imprison-
ment of either description for a term which may extend to two
years, or with fine, or with both.

This section punishes, the act of dishonestly or fraudulently preventing debt
being available for the creditors. In the preceding section it is provided that the pre-
vention should be effected by removal, concealment, delivery or transfer of property
without adequate consideration, but this section applies to dishonest or fraudulent
evasion of one’s own liability. In other words, this section deals with c hose in action.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Presidency Magistrate, or Magistrate of the first or second class.

Charge : — I (name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : — t

(v) Smith, (1852) 6 Cox. 31.

(w) Cox, (1884) 15 Cox. 611.

(x) Abdul Gani Sulleman, (1800) P. J. L. B. 593.

(y) Nobin Chandra, (1874) 22 W. R. (Cr.) 46.

(z) HarraKumary v. Savi, (1900) 28 C. 314.

sfic. 423 ]

OFFENCES AGAINST PROPERTY

m

That you, on or about the day of , at 1

dishonestly (or fraudulently) prevented any debt (or demand) to wit

due to himself or to any other person (XY) from being made available according
to law for payment of his debts or the debts of XY % and you thereby committed
an offence punishable under s. 422 of the Indian Penal Code, and within my
cognizance.

And I hereby direct that you be tried on the said charge.

In order to secure a debt A hypothecated a house and got the deed duly re~
gistered. A year afterwards he sold the house to another person. It was held
that'j4 was not guilty of an offence under this section because the mere transfer of
his interest by a mortgagor cannot be said to be fraudulent or dishonest because
he has, as a matter of fact, previously mortgaged his property (a).

Where A entered into an agreement with B not to compromise a case with C,
because he had assigned the benefit of the suit to B as a security for the due pay-
ment of some monthly instalment of money, and A notwithstanding did afterwards
compromise the suit with C, it was held that A could not be convicted under this
section, unless the compromise with C was made dishonestly or fraudulently
towards B (b).

423. Whoever dishonestly or fraudulently signs, executes
or becomes a party to any deed or instrument
)en? S «ecution r o^deed which purports to transfer or subject to any
of transfer containing charge any property, or any interest therein,
sfderation ement ° f c ° n an ^ which contains any false statement re-
lating to the consideration for such transfer
or charge, or relating to the person or persons for whose use or
benefit it is really intended to operate, shall be punished with
imprisonment of either description for a term, which may extend
to two years, or with fine, or with both.

Dishonestly — s. 24. Fraudulently — s. 25.

This section punishes dishonest ojr fraudulent execution of deed of transfer
containing false statement of consideration.

Scope : — This section makes it penal to insert in a deed either a false recital
of consideration or the false statement concerning the person to be benefited.

Procedure : — Non-cognizable— Warrant — Bailable — Not compoundable —

Triable by Presidency Magistrate, or Magistrate of the first or second class.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of ,

at • dishonestly (or fraudulently) signed (or executed or became a party

to) a deed (or instrument) to wit Ex. — which purported to

transfer (or subject to a charge) any property viz . (or interest therein to wit —

) which contains any false statement relating to the consideration for such

transfer (or charge) (or relating to the person or persons for whose benefit it is
really intended to operate) and that you thereby committed an. offence punishable
under s. 423 of the Indian renal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

(a) Masai Lai v. Kashi Prasad , 14 Cr. L. J. 141 : 18 I. C. 893.

(b) In re . Nobin Chandra Madduk t 22 W. R. (Cr.) 48,

846 THE INDIAN PENAL CODE [ CHAP. XVII

Deed or instrument 2 — It is doubtful whether the language of s. 423
could be so interpreted as to include a hpkuliyat within its scope (c). The
accused dishonestly executed a lease of certain immoveable property, containing
a false statement relating to the consideration and was convicted of an offence under
s. 423. The appellate Court was of opinion that a charge under s. 423 was not
sustainable until the dishonest and fictitious character of the lease was established
by a civil suit. Held on revision by Straight, C. J., that the institution of a civil
suit was not a condition precedent to the maintenance of a charge in the criminal
court (d).

False statement relating to the consideration for such transfer or
charge t—ln the undermentioned case it was held that the making of a false
statement in a sale deed of immoveable property as to the consideration for the
sale, such statement being made for the purpose of preventing any person who
might have a right of pre-emption in respect of property sold from coming forward
to assert his right of pre-emption, is an offence which falls within the definition
contained in this section (e). The fabrication or use of a forged document by
an accused person for the sole purpose of defending himself does not fall within
the range of the sections dealing with forgery. But the making of a false statement
in a sale deed of immoveable property as to the consideration for the sale, such
a statement being made for the purpose of preventing any person who might have
a right of pre-emption in respect of property sold from coming forward to assert
his right of pre-emption, is an offence which falls under this section (f).

The word * consideration ’ in this section does not mean the property trans-
ferred. Therefore an untrue assertion in a transfer deed that the whole of a plot
of land belonged to the transfers is not a statement relating to the consideration for
the transfer and is not an offence under the section (g).

Whoever dishonestly or fraudulently conceals or re-
Dishonest or fraudu- moves any property of himself or any other
lent removal or conceal- person, or dishonestly or fraudulently assists
in the concealment or removal thereof, or

424 .

ment of property.

WlIVVUUUV«tl< VTA 1VU1VTUI bttvl W1 , V*

dishonestly releases any demand or claim to which he is entitled,
shall be punished with imprisonn^ent of either description for a
term which may extend to two years, or with fine, or with both.

This section punishes cases not falling either under s. 421 or s. 422. It applies
not to thieves or receivers but to persons who know about the theft and try to
prevent the property from being traced.

Scope i — S. 424 is intended to punish fraudulent debtors and their accom-
plices and not persons who claim as heirs and deal with the property. Where,
therefore, the accused who was the mother of a deceased claimed to be his heir
in preference to a childless daughter-in-law of the deceased, and took possession
of the moveablgs left by the deceased, it was held that no offence under s. 424
had been committed (h).

A partner can be convicted under this section if he dishonestly removes partner-
ship account books (i).

(c) Mahomed v. Jahabdi, (1919) 46 C. 986 : 29 C. L. J. 622 : 20 Cr. L. J. 674 :

62 I. C. 62. «

(d) Umrao Singh, (1883) A. W. N. 209.

(e) Mahabir Singh, (1902) 26 A. 31.

(f) ibid.

(g) Mena Goundan, (1911) 37 M. 47 : (1911) M. W. N. 413 : 12 I. C. 623.

(h) Kari Mangadu, (1914) M, W. N. 791 : 26 I. .C. 614.

(i) Gour Benode Dutt, (1873) 13 B. L. R. note : 21 W. R. (Cr.) 10.

SEC. 424 ]

OFFENCES AGAINST PROPERTY

841

Where moveable property has been attached and was dishonestly removed
by the judgment-debtor even though the attachment is not legal, the offence under
this section will be committed if the property has been removed dishonestly to
avoid attachment of a debt (j).

Forcible removal of crops by the owner — certain crops were attached in exe-
cution of a decree and placed in the custody of a Shehna. The crops did not belong
to the judgment-debtors, and the owner cut and removed a portion of them in spite
of the resistance of the Shehna, held that no offence under this section was com-
mitted (k).

Where mode of attachment prescribed under or 21, or 46, C. P. C., is not
followed, held , there is no legal attachment and conviction for removal of property
attached is bad (1).

Jurisdiction: — Presidency Towns Insolvency Act does not take away a
Magistrate’s jurisdiction to try an insolvent for an offence under Ss. 421 and 424 (m).

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate or Magistrate of the first or second class.

Dishonest intention must be proved : — On the death of a person, a dispute
arose between his two widows as to the succession to his property and both of
them put padlocks on the shop in which the property was, some of it was subse-
quently removed from the shop by the accused at the instance of one of the widows ;
the other widow brought a suit to establish her title to the property, it was held that
the accused could not be convicted under this section as, in the absence of a clear
finding as to the respective titles of the widows, it could not be said that his removal
of the property was dishonest (n).

Charge I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at , dis-
honestly (or fraudulently) concealed (or removed) a certain property, to wit—

belonging to yourself (or to XY) (or dishonestly or fraudulently

assisted in the concealment or removal thereof ; or dishonestly released a certain

demand, to wit ) and that you thereby committed an offence punishable

under s. 424 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Dishonest or fraudulent removal or concealment of property Where
a distraint is made under the Rent Recovery Act for arrears of rent, there is no
presumption that it is legally made, and if persons are charged with having dis-
honestly removed property to avoid it, the prosecution must prove that it was a
legal distraint. In the absence of such proof, persons who have assisted the dis-
traint or have removed their property, to avoid it, cannot be convicted of an offence
inasmuch as they had a right of private defence of their property unless the dis-
traint was legal (o). *

A judgment-debtor whose standing crops were attached, harvested them while
the attachment was in force. It was held that he was guilty of an offence under
this section (p).

(j) Ramraju v. Tirapatraiu , (1930) M. W. N. 347 ; (k) Ghasi, (1929) 62 A. 214,
distinguishing Obbaya , (1*98) 22 M. 161.

(l) Maya Gyok, A. I. R. (1928) Rang. 285.

(m) U Mo. Goung y. C. Po. Sin . (1928) 6 R. 664.

(n) Khusi Ram. (1920) 3 Lah. L. J. 99 : 22 Cr, L. J. 142 : 69 I. C. 664.

(o) Gopalswami , (1902) 26 M. 729, following (1901) l Weir 486 ; Banvart Magata,
(1882) 1 Weir 483.

(p) Obbaya , (1898) 22 M. 15)

842

THE INDIAN PENAL CODE

[CHAP. XVII

Where the accused was charged with having removed his wheat, the removal
of which was prohibited and over which watchmen had been placed under s. 141
of the Land Revenue Code, it was held that the offence committed was one not
under s. 379 but s. 424, if the removal be dishonest (q).

Tenant carrying away produce r— Where a bhaoli danabandi tenant removes
the crop either to the threshing floor or to his house without giving the landlord
reasonable opportunity of appraising it, held , he can be convicted under this
section (r).

When an accused (a tenant) dishonestly removed branches of certain trees a
share of which belonged to the landlord, the complainant, it was held that the
offence under this section had been committed. In this case the accused admitting
the removal alleged a custom that the tenant were entitled to appropriate the trees
without any participation by the landlords when cut for agricultural or domestic
purposes. But he having failed to prove the alleged custom the conviction was
upheld (s). Where it is proved that crops have been removed dishonestly or
fraudulently by ryots holding land on varam tenure, an offence is committed under
this section even though the Zemindar under the terms of the tenancy acquires no
property in the share due to him until the ryots have delivered it to him (t). Where
the tenants holding lands on the baiai system went to their fields in a body and cut
and carried off the paddy crop despite the remonstrances of the landlord's patwari,
they were convicted under s. 424, and it was held by Chamier, C. J., that s. 71 (4)
of the Bengal Tenancy Act does not lay down the only penalty to which a tenant
exposes himself under such circumstances (u).

Where the accused who was a ryot under the Madras Estates Land Act and
who was bound under the conditions of his tenure to share the produce of his land
with the landholder in a certain proportion, dishonestly concealed and removed the
produce, thus preventing the landlord from taking his due share, it was held that
the provisions of Ss. 73 and 212 of the Madras Estates Land Act were no bar to a
conviction of the ryot under s. 424, for the dishonest concealment and removal (v).

Of Mischief.

The offence punishable under Ss. 426-440 all relate to ‘ mischief* — only
they vary according to the amount of damage caused or according to the different
objects to which wrongful loss or damage or injifry is caused.

425. Whoever, with intent to cause, or knowing that he is
... . . , likely to cause, wrongful loss or damage to

the public or to any person, causes the de-
struction of any property, or any such change in any property or
in the situation thereof as destroys or diminishes its value or
utility, or affects it injuriously, commits “ mischief. ”

Explanation 1 . — It is not essential to the offence of mischief
that the offender should intend to cause loss or damage to the
owner of the property injured or destroyed. It is sufficient if he
intends to cause, or knows that he is likely to cause, wrongful loss

(q) DayaKarsan, I Bom. L. R. 515. ,

(r) Lain Gape, fl917) 1 Pat. L. W. 691 : 18 Cr. L. J. 687 : 40 I. C. 335.

(s) Panchi Mandat, (1920) 1 Pat. L. T. 318 : 21 Cr. L. J. 609 : 57 I. C. 273.

(t) Subudhi Rantho v. Balaram Pudi t (1902) 26 M. 481. *

(u) Kuldip Panday v. Ramnath Singh , (1916) 1 Pat. L. J. 353: 17 Cr. L. T.

315 ; 35 1. C. 491 . J

(v) Sivanupandia, (1914) 38 M. 793.

OF MISCHIEF

843

SEC. 425 ]

or damage to any person by injuring any* property, whether it
belongs to that person or not.

Explanation 2. — Mischief may be committed by an act
affecting property belonging to the person who commits the act,
or to that person and others jointly.

Illustrations,

(a) A voluntarily burns a valuable security belonging to Z intending to cause
wrongful loss to Z A has committed mischief.

(b) A introduces water into an ice-house belonging to Z and thus causes the
ice to melt, intending wrongful loss to Z. A has committed mischief.

(e) A voluntarily throws into a river a ring belonging to Z, with the intention
of thereby causing wrongful loss to Z. A has committed mischief.

(d) A , knowing that his effects are about to be taken in execution in order to
satisfy a debt due from him to Z , destroys those effects, with the intention of thereby
preventing Z from obtaining satisfaction of the debt, and of thus causing damage
to Z . A has committed mischief.

(e) A having insured a ship, voluntarily causes the same to be cast away, with
the intention of causing damage to the underwriters. A has committed mischief.

(f) A causes a ship to be cast away, intending thereby to cause damage to Z
who has lent money on bottomry on the ship. A has committed mischief.

(g) A, having joint property with Z in a horse, shoots the horse, intending
thereby to cause wrongful >oss to Z. A has committed mischief.

(h) A causes cattle to enter upon a field belonging to Z t intending to cause and
knowing that he is likely to cause damage to Z's crop. A has committed mischief.

Analogous law : — There is no corresponding provision in the English law.
The English statute 24 and 25 Viet., c. 96 deals with specific cases for which there
are corresponding provisions in the Indian Penal Code.

Scope • — S. 425 supposes that the destruction was caused with the intention
to cause wrongful loss or damage and 1 does not apply to cases of mere carelessness.
Where therefore the cattle of the accused strayed into the complainant’s field and
ate up his rice, it was held that no offence under this section had been committed (w).
The causing of wrongful loss or damage and intent to cause wrongful loss or damage
is an essential for the offence of mischief (x). To render a person liable under this
section for mischief in consequence of damage done by cattle trespass, he must in
some way have caused the cattle to enter the prosecutor’s fields, knowing that by so
doing he is likely to cause damage. Mere neglect to keep the cattle from straying
is not sufficient (y).

* Whoever, with intent to cause or knowing that he is likely to cause
wrongful loss or damage to the public or to any person 9 The principal
ingredient of an offence under this section is that there must be an intention to
cause wrongful loss or damage to the public or to any person, that is to say, the
mischief must be done to the property belonging to another. If, therefore, a person
wishing to eject a trespasser sets fire to his own house, he cannot be said to cause
wrongful loss to any person or to the public, and therefore cannot be convicted of

(w) Araz Sircar , (1867) 10 W. R. (Cr.) 20.

(x) U ha Doe, (1929) 8 R. 13.

(ji) Forbes v, Girish Chandra, (1870) 14 W. R. 31 ; Bai Baya , 7 J3. 126 , Shaik
Raju. 9 B. 173.

844

THE INDIAN PENAL CODE

[ CHAP- XVII

an offence under this section^*). The mere fact that wrongful, loss Was caused to
the complainant by the accused’s act is not sufficient to bring it within the scope
of s. 426. It is essential to prove that the accused had any intention to cause any
wrongful loss or that he had any knowledge that he was likely to cause such loss (a).
Where an accusedin order tp get his cart out of the way and to avoid running
against the complainant’s carriage pulled the bullock in the wrong direction thereby
bringing the pole of his yoke against the foot-board of the complainant's cart
causing a damage of from Rs. 20 to 30, it was held that the accused committed no
offence under s. 425 the gist whereof lies in the intention (b).

The terms of this section defining a mischief are satisfied when there is a
finding on the point of the prisoner *s knowledge and the question of intention is
material only as regards the sentence (c).

Where the accused dug up some graves and removed the stones placed over
them in order to extend his cultivation, it was held that the graves might be treated
as property and that the accused was guilty of mischief (d). Where an accused
was charged with having committed mischief by digging out tombs of the fore-
fathers of the complainant, standing on the accused’s land, it was held that he could
not be convicted of mischief to tombs put up on land which came into the possession
of others passed with the land (e).

Damage ' This section does not necessarily contemplate damage of a de-
structive character. It requires merely that there should be an invasion of right,
and diminution of the value of one’s property, caused by that invasion of right, which
must have been contemplated by the doer of it when he did it. Where therefore
accused unyoked the bullocks of a cart upon which the complainant’s goods were
placed for removal and turned the goods off the cart on to the road and the com-
plainant thereupon went away at once leaving them lying there, it was held that an
offence under s. 425 had been committed (f). The Madras High Court has held
that the probable consequential damage to other property would not come under
this section (g).

In deciding the question as to whether the offence of mischief is committed
the motive of the accused must not be confused with his intention. Where there-
fore tenants finding their fields flooded cut a channel through a railway in order
to let the water run off their fields, it was held fhat the act having been intentionally
done amounted to mischief, and it was no defence to say that their motive in doing
it, viz., to free their fields from water was an innocent one (h).

Right of way Where the accused had a right of way for his carts through
the field belonging to the complainant and the complainant to protect his field from
water erected stone dams, the effect of which was that the accused was prevented
from exercising his right and thereupon the accused obtained an injunction
from the Mamlatdar’s Court restraining the complainant from obstructing the
accused in the engagement of his right but the complainant failed to obey the

(z) Ram Krishna Singh, (1921) 3 Pat. L. J. 335: 23 Cr. L. J. 321 : 66 LC.
817: A. I. (1922) P. 197(2).

(a) Packiriya v. Muihukrishnan , (1920) 21 Cr. L. j. 450 : 56 I. C. 434 (Mad*).

\b) Sharna , (1874) Rat. Unrep. Cr. C. 88.

(c) Rev sing, (1894) Rat. Unrep. Cr. C. 690.

(d) Rumala Nagaya , (1889) 1 Weir 496. t

(e) Chotu Ally , (1903) 4 Bom. L. R. 463.

(£) Per Pigot, J., in Juggeswar Dass v. Kaylash Chunder Chatterjee, (1885) 12
C. 55.

(g) (1868) 4 M. H. C. App. 15.

(h) Deputy Superintendent and Remembrancer of Legal Affairs v. Chulhan A Mr,

1908) 16 C. W. N. 263. ’ *

SEC. 425 ]

OF MISCHIEF

845

injunction when accused abated the wrongful obstruction of his easement by his
own men, held, accused was rightly convicted under s. 426 (i).

Putting down obstruction to public road: — A mere trespasser cannot
obtain what is known in law as possession by theact of entry, or by the continuance
of that act, so long as the act is disputed and resisted. Therefore, if a person takes
possession of the site of a public road and builds upon it to the obstruction of the
public it is no offence for a member of the public to pull down that obstruction
and exercise his right of way (j).

Breach in fiekUbund is an offence ' The accused fearing that the water in
his tank would overflow, caused a breach in the bank of the complainant’s field with
the result that the surplus water from the tank overflowed into the field. It was
found that there were no crops in the field, so that apart from the damage done
to the bank no other damage was done to the complainant. Held , that the accused
was guilty of the offence of mischief (k).

Obstruction as of right— no offence Where the petitioners in taking step
to prevent the contamination of their drinking water-supply, to say nothing of damage
to seedlings and crops, were acting under a colour of a right so to do, it was
held that they could not be convicted under this section for having obstructed the
flow of water into a public channel (1).

Bona fide claim of right Where the mortgagor has got the security of the
mortgage money to compensate him for any damage caused by the mortgagees com-
mitting small wastes, it would require very strong evidence to justify the conclusion
that a mortgagee openly cutting a few trees from the mortgaged premises to repair
a house on another portion of the same premises was guilty of an intent to cause
wrongful loss and damage to the mortgagor when he so cut them down or that he
knew it to be likely that such loss will be caused (m). When a tenant cuts and
appropriates a tree standing on his holding under a bona fide claim of right, he
is not guilty of mischief under s. 426 and it is immaterial whether his motive in
cutting the tree was mala fide or dishonest (n). Where there is a dispute between
two parties as to the ownership of a tree and one of them cuts it down, the case is
beyond the cognizance of criminal Court and outside the scope of s. 425 (o).

Criminal Courts are not meant fo decide questions which are of a civil nature
between a landlord and his tenants. Where accused removed some earth from a
plot of land belonging to his landlord in the exercise of an alleged customary right
under which all residents of the village were entitled to remove earth when they
wanted it, it was held that the dispute, if any, between the accused and his land-
lord was of a civil nature and the conviction of the accused under s. 426 was not
justified (p). Where there was bona fide claim of right by the accused to the wall
in dispute and the accused had entered the complainant's house and pulled down
the addition in his absence, held , the offences charged in Ss. 426 and 451 were not
made out (q). „

(i) Zipru Tanaji Patel (1927) 51 B. 487 : 29 Bom. L. R. 484.

(i) Dhatmalingha MuddJi, (1914) 39 M. 57 : 15 Cr. L. J. 723 : 26 I. C. 171.

(k) Utatto Gopal v. Jago Chamar , (1918) 20 Cr. L. J. 237 (Pat.) : 49 I. C. 861 :
Chanda, , 28 A. 204.

(l) Tatiparthi v. Sanam Kanakyya, (1929) M. W. N. 711; see DharwaliUga
(1914) 39 M. o7 : JanmthOtn, (1892) 1 Weir 490.

(m) Ramswami Atyar, (1913) 15 Cr. L. J. 290 : 23 I. C. 498.

(n) Shamlal Lohat , (1918) 19 Cr. L. J. 729 (Pat.) : 46 I. C. 409.

(o) Sardar Singh , (1917) 19 Cr. L. J. 339 : 44 I. C. 451 : (Pat.).

ip) Huhum Chand , (1922) 24" Cr. L. J. 693 : 73 I. C, 805; A. I. R. (1923) All.

544 @).

(q) Balhrishna Nashkar, (1924) 26 Bom. L. R. 978.

846

THE INDIAN PENAL CODE

[ CHAP. XVII

A a joint owner of a parcel of land, erected on it a nowbuikhana with the
consent and against the will of B, another joint owner. B brought a suit in the
civil Court to establish his title to joint possession of the whole parcel and for a
declaration that A was not entitled to erect any edifice thereon and further prayed
that such edifice should be removed. B obtained a decree, whereupon his servants
went on the land and pulled it down. It was held that as there had been no causing
of wrongful loss the accused was not guilty of mischief (q 1 ).

In a dispute about a right of fishery in the water course between the accused
and another, the latter set up a bamboo bar across the water course, which
obstructs the egress and ingress of fish which it allows the water to pass freely. The
accused being unable to induce the police to interfere threw down the bar. It was
held that no offence of mischief had been committed as the accused did not throw
down the bar with intent to cause or knowing that it is likely to cause wrongful loss
4?ut with a totally different object (r).

The accused were charged with unlawfully taking fish in a public river, the
fishery right thereof had been let out by the Government to the complainant. It
was held that the offence under s. 426 had not been committed because the fish not
being shut up in any manner were free to escape in any direction they pleased and
consequently the act of the accused did not diminish the value of the fishery or
cause any change in the property assuming that the fishery is * property * within
the meaning of s. 425 (s).

A bull dedicated and set at large at the Sradh of a Hindu in accordance with
religious usage is not a * property ’ within the meaning of s. 425. So where the
accused, some Mahomedans, secretly and at night killed such a bull for the sake of
the meat and value of the skin, it was held that the offence of mischief was not
committed (t).

The mere assertion of a claim of right is not in itself a sufficient answer to
charges of criminal trespass and mischief. It is the duty of the criminal Court
to detennine what was the intention of the alleged offender and if it arrives at the
conclusion that he was not acting in the exercise of a bona fide claim of right, then
it cannot refuse to convict the offenders, assuming that the other facts are established
which constitute the offence (u). g

The owner of an animal who buries it after its death is not guilty of mischief,
although he does so with the express object of preventing the Mahars of his village
from taking its skin according to the custom of the country (v).

Where the case of the accused was that the female members of his family
used a certain path for going to the river ghat and under a bona fide claim of such
right of way the accused cut two betas (fencing) set up by the complainant to
obstruct the said path, it was held that the accused could not be guilty of mischief (w).

Where accused acting in good faith and under a bona fide belief that he was
entitled to the possession of certain land delivered to him by the Court in conse-
quence of his purchase at an auction sale, cut away a ripe crop growing on the land
in its full time, it was held that he was not guilty of offence under s. 426 (x).

,(ql) Rajcoomar Singh, (1878) 3 C. 673.

(r) Dinabundhu, 12 W. R. (Ct.) I, • ■ *

(s) Mayaram Surma v. Nichala Katani, (1888) 16 C. 482; B hag it am Dome v.
A bar Dome, (1888) 16 C. 388.

(t) Romesh Chandra v. Hira Mon dal, (1890) 17 C. 862.

(u) Budh Singh , (1879) 2 A. 101; Mahadashet, (1889) Rat. Unrep. Cr. C. 432.

(v) Govinda Punja , 8 B. 296. „ J > ;

(w) Madhu Sudan v. Sasti Prasad, (1903) 7 C. W. N. 869,

(x) Talebar, 18 Cr. L. J. 760 : 40 I. & 760 ? - *

SEC. 425 ]

OF MISCHIEF

847

Questions of civil nature— complainant should be referred to civil
Court :— Where a tenant in the bona fide # assertion of a customary right without
intending to cause wrongful loss to the Zemindar, or knowing it to be likely to do so,
cuts down an ancient tree admittedly standing on his holding, he cannot be con-
victed of the offence of mischief (y). Accused removed some earth from a plot of
land belonging to his landlord in the exercise of an alleged customary right under
which all residents of the village were entitled to remove the earth when they
wanted it. It was held that the dispute, if any, between the accused and his land-
lord was of a civil nature and the conviction of the accused under s. 426 was not
justified (z). Where the accused who was alleged to have cut certain trees
belonging to the Zemindar and adduced evidence to show that he had a bona fide
claim, held that where a bona fide contest exists as to the title of the property
no offence of mischief is committed (a).

Negligence is not mischief S. 425 supposes that the destruction
is caused with the intention to cause wrongful loss or damage and does
not apply to cases of mere carelessness. Where, for instance, the accused’s cattle
strayed into the complainant’s field and ate up the crops, the accused was held not
guilty of mischief (b). To render a person liable under s. 425 for mischief
in consequence of damage done by cattle trespass, he must in some way
have caused the cattle to enter the prosecutor's fields, knowing that by so
doing he is likely to cause damage. Mere neglect to keep the cattle from straying
is not sufficient (c). But where owners of cattle who knowing their animals to
be not properly provided with fodder and accustomed to stray in search of food,
intentionally omit to secure their cattle or neglect to take reasonable precautions
for their care and custody, may be guilty of the offence of mischief. The omission
or neglect, however, must be such as to have an active effect conducing to the result
as a link in a chain of facts from which an intention to bring about the result
may be inferred (d).

Owner not liable for the negligence of his contractor S who lived
in Calcutta wishing to rebuild his house in Benares gave the contract to a contractor.
The contractor in digging up the foundation did not prop up the next door neigh-
bour’s wall — an ordinary precaution which a builder ought to have taken — with the
result that the neighbour’s wall sank and cracked and a fair amount of damage was
done. It was held that the damage’being the result of the contractor’s negligence
and not being due to any negligence or malice on the part of 5, the latter was not
criminally liable (e).

Servant does not necessarily share the intention of the master : — Where the
accused, a servant of a landlord, under the orders of his master, was convicted of
mischief for having cut and removed a dead jack fruit tree worth Rs. 15 from the
bari of the tenant and it was found that the servant had no dishonest intention in
cutting and removing the tree and his conduct was bona fide , the Calcutta High
Court set aside the conviction (f).

f causes the destruction of any property or any such change in any
property or in the situation thereof 9 : — A condition precedent to a conviction

(y) Pitam Singh, (1920) 21 Cr. L. J. 828 (All ) : 58 I. C. 828

(z) Hukutn Chand, (1023) 24 Cr. L. J. 693 : 73 I. C. 806 : A. I. R. (1923) All,

644.

(a) Falka, A. I.R. (If* 6) All. 291.

(b) Arag Sircar; (1868) 10 W. R. (Cr.) 29; Narsu, (1882) Rat. Unrep. Cr. C
186 ; Ryder AH, (1884) Rat. Unrep. Cr. C. 199 : (1871) 6 M. H. C. App. 36.

(c) Perbes v. Girish Chandra Bhaflacherjee, (1870) 14 W. R. (Cr.) 31 ; Bat bay a,
(1883) 7 B. 126 ; Shaik Raju, (1884) 9 B. 173 ; Mehdi Hasan, (1907) 29 A. 566.

(d) Thomeiti Madmthil Poker, (1868) 1 Weir 496.

fe) Brisk Chandra Swear, (1918) ll A. L. J. 343 : 20 Cr. L. J. 299 : 60 I. C. 347.

(f) Sarat Chandra San v* Yakub Talukdar, (1923) 28 C. W. N. 736.

848

THE INDIAN PENAL CODE

[CHAP. XVII

under s. 430 is that the accused has committed mischief as defined in s. 425, and it
must be proved that he caused the destruction of some property or some such
change in any property w in the situation thereof, as destroyed or diminished
its value or utility or affected it injuriously. Until such result of the accused’s act is
established his intention or knowledge need not be considered, and the mere fact
that he has dealt with water does not constitute an offence under s. 430. Where,
therefore, the accused irrigated their land from a Government canal cut for a
period exceeding that allotted to them and had consequently prevented others
from irrigating to the extent to which they were entitled on that occasion, it
was held that they could not be convicted under s. 430, because there was no
evidence that any damage was done to a crop or any other property or that thevalue
or utility of any property was diminished or that any property was injuriously
affected (g).

> S. 426 deals only with a physical injury from a physical cause. Where there-
fore the accused threw down a shoe amongst certain Brahmins who were seated
to dinner, it was held that they could not be convicted of mischief on the ground
that their action had polluted the food and had from a Hindu religious point of
view rendered it unfit to be eaten (h).

It is the essence of the offence of mischief that the perpetrator must cause
" the destruction of property or such changes in it or in its situation, as destroys
or diminishes its value or utility or affects it injuriously To cut a crop that is
grown to be cut is not to destroy it or affect it in the manner defined above. The
taking may cause wrongful loss to the grower, and if it be dishonest a conviction
may be had for the theft. But it cannot be mischief. If the crop is unripe and
not fit to be cut an accused might be convicted of mischief (i).

* Change * means physical change. Change in property is necessary only
diminishing its value or utility is not sufficient (j).

It has been held in one case that as bamboo is a thing which is grown to be
cut, the cutting and removing it does not amount to its destruction or other injury.
The act may be theft but not mischief (k). In a subsequent case, however, the
proposition laid down above was doubted and it was held that a person commits
mischief if he cuts bamboo on land which he qlaims, but of which possession after
an execution sale has been legally made over to another person without any objec-
tion or formal intervention on his part (1). When a complainant was put into
possession of certain landed property by the civil Court and the accused setting
up a claim to the land destroyed the complainant's £a/ai grown on it partly by
turning their cattle into it and partly by ploughing it up it was held that the accused
were guilty of criminal trespass and mischief (m). The case of Miras ChowkjL-
dar (i), is often cited as an authority for the proposition that the offence of
mischief does not lie where the crop is ripe but the case is not a direct
authority for the proposition which is stated.

The Calcutta High Court has recently held that the cutting and removal of a
dead jack-fruit tree do not amount to its destruction or to such a change in a pro-
perty or in its situation thereof as destroys or diminishesits value or utility or affects

(g) Fateh Din, (1909) P. R. No. 14 of 1909 : 4 I. C. 863,

(h) Mahtned Fayaz v.Khan Mahomed , (1872) 18 W. R. (Or.) 10 ; Motilal, (1901)

24 A. 165. •

(i) Miras Chowkidar ; (1903) 7 C. W. N. 713 : Radhunathia Aiyar. v. Narayana
Gounda , (1828) 66 M. L. J. 767: 62 M. 161.

(j) Raghupathia Iyer v. Narayana Goundan, (1928) 65 M. L. J. 767 : 52 M.
151.

(k) Shakur Mahomed v. Chunder Mohan ^aha, (1874)«21 W; Hi (Cr.) 38, *

(l) Sonai Sardar v. Buktwar Sardar, (1876) 25 W. R. (Cr.) 46,

(m) Gamirulla Sarkar v. Abdul Sheikh, tl$$4) 10 C. 408, * ^

OF MISCHIEF

849

SEC. 425 ]

it injuriously. A dead jack-tree cannot be of less va lue or less utility simply because
it is cut and removed. It can only be used as a t imber or fuel wood. It can be
used for those purposes only after it is cut. Such being the case the cutting and
removal do not amount to a mischief as con templated by s. 425 (n).

D, as lessee of Government, held rights of fishery in a particular stretch of river.
C, by diverting the water of that river, converted the bed of the river for a con-
siderable distance into dry land or land with a very shallow covering of water
upon it, and by so doing he was unable to destroy and did destroy very large quan-
tities of fish both mature and immature. It was held that when C deliberately
changed the course and condition of the river in the. manner described to the
detriment of D, he was guilty of the offence of mischief (o).

Property s— ' The term ‘ property * as here used means and includes only
tangible property capable of being forcibly destroyed and does not include an
easement, see Ramarajus case (q).

Where the complainant had acquired a right of easement over the stair-case
of the accused, it was held that the latter could not be guilty of mischief by causing
a destruction of his own stair-case (p).

If the owner of land over which another or a body of others have a right either
of passage or other use throws earth upon the land so that the use becomes either
disadvantageous or impossible, it does not amount to mischief within the mean-
ing of s. 425 (q).

Where the accused received a registered postal parcel and when asked to sign
its acknowledgment he tore it up whereupon he was prosecuted under s. 426,
Chatteijee, J., convicted him holding : " The act of tearing is an act of mischief,
and the postal receipt is the property of the post office, which has some value, how-
ever small. The tearing of such a receipt causes damage to the post office that is
wrongful loss to it, and there can be no question that the accused is liable under
s. 426 for his act 99 (r). Th^ destjruction of a document evidencing an agreement
void for immorality nia^ constitute the offence of mischief (s).

Damage need not be of a destructive character s— Where certain inhabit-
ants of a village sailed out in boats and pulled up and removed a number of fishing
stakes lawfully fixed in the sea by the villagers of a neighbouring village, it was
held that the offence amounted to mischief within the meaning of Ss. 425 and 427
of the Penal Code. The fact that no injury was done to the nets or stakes did not
affect the question, it being patent that a change in the stakes was made which
destroyed or diminished their value or utility (t).

Where complainant had for the purpose of removal placed certain goods upon
cart and accused came and unyoked the bullocks, and turned the goods off the cart
on the road, it was held that the offence of mischief was committed (u).

It is an act of awful mischief for any person to make a breach in the wall of
a canal. It is an act which causes such a change in property as destroys or di-
minishes its value or utility or affects it injuriously (v). >

Where the accused threw down a shoe amongst certain Hindus seated to a
caste dinner, it was held that they should not be convicted under s. 425 on the

(n) Sarat Chandra Stnt'V. Yakub Talukdar ; (1923) 28 C. W. N. 736.

(o) Chanda , (1906) 28 A. 204.

(p) Keru, (1888) Rat. l/nrep. Cr. C. 387.

(q) Ramaraju, (1930) M. W. N.J09.

(r) Sukha Singh , (1906) P. R. Kq, 24 of 1906.

(s) Vyapari, (1882) 6 M. 401.

(t) Kastya Ram , (1871) 8 Bom. H. C. R. 63.

(uV Jaggeswar &ass v*Koylas Chundat , (1886) 12 C, 65,

(v) Ransi, (1912)34 A. 210,

60

THE INDIAN PENAL CODE

850

[CHAP. XVII

ground that their action had polluted the food and rendered it unfit to be eaten
from a Hindu religious point of view (w).

Ex planation 1 The explanation says that the intention to cause injury
is not necessary ; it is sufficient if the person knew that he was likely to cause
wrongful loss or damage to any person. *

Where the accused drove out a cow which had entered his master’s field and
after it had reached the boundary he threw two stones at it, one of which fractured
its leg, it was held that the accused was guilty of mischief within the meaning of
s. 425 (x).

Illustrations (e) and (/) are examples of Explanation 1 showing that it
is not essential that the offender should intend to cause loss or damage to the owner
of the property injured or destroyed.

Explanation 2 : — This explanation says that a person may commit mischief
affecting property belonging to himself or to a property belonging to him and
another or others jointly.

Illustration ( d ) is an example of mischief committed by one in respect of his
own property. Illustration (g) is an example of mischief committed in respect
of joint property.

Recently the Oudh Court has held that no person can commit mischief in
respect of property which belongs exclusively to himself and that this is perfectly
clear from Explanation 2, which provides that mischief may be committed where the
act affects property belonging to the offender and another jointly (y). This case
overlooks the expression in Expl. 2 “ belonging to the person who commits the
act ” and as such cannot be accepted as good law , but * mischief * may be committed
in respect of one’s own property only in cases where another person has an interest
in the same which the owner is bound to protect, vide illustration ( d ). In this view
the Oudh ruling above referred to can be supported. > Thd view taken in Jang
Bahadur Singh's case (z), viz., that no mischief is committed by a person with
respect to damage done to his own property can hardly be supported. See in this
connexion Parameswar Singh's case (b) noted below at p. 851.

The damage contemplated in s. 425 need not necessarily consist in the infringe-
ment of an existing, present and complete* right, but it may be caused by an act
done with the object of defeating and rendering infructuous a right about to come
into existence .

A small holding of the accused was sold by the Collector for arrears of revenue,
and was purchased by the complainant who, in accordance with the sale law,
deposited a portion of purchase money. Previously to the completion of the sale and

C ' to the expiry of the 60th day from the sale on which a certificate would have
granted to the complainant, the accused cut down certain trees on the holding.
It was held that he committed mischief (a).

Although it*is a well-known rule of law that a man may commit mischief by
damaging his own property, provided he does so in order to cause wrongful loss
to somebody else, or knowing it to be likely to cause wrongful loss to somebody
else, a servant of a proprietor who has voluntarily surrendered his estate to the

(w) Motilal, 24 A. 155. #

(x) Mahadeo. 12 N. L. R. 188 : 18 Cr. L. J. 286 : 38 I. C. 318.

(y) Kesho Singh , (1923) 24 Cr. L. J. 467 : *72 I. C. 883 : A. I. R v (1924) Oudh

( (2)’ (1926) 7 P. L. T. 19 : 27 Cr. L. J. 392 : 93 I. C. 40 ; A. I. R. (1926) Pat.
(a) Dharamdas v. Naseruddin # 12 C. 669, * '

OF MISCHIEF

851

sec. 426]

Court of -Wards does not commit criminal trespass or 'mischief* by cutting or
removing bamboos for the benefit of his master (d).

426. Whoever commits mischief shall be punished with
Pll . cl m , f imprispnment of either description for a term

Punishment for mis- L*L . j ^ i *i

chief. which may extend to three months, or with

fine, or with both.

. This section provides punishment for the ordinary case of mischief as defined
in s. 425. When the loss or damage done by the mischief amounts to Rs. 50 or
upwards, enhanced punishment is prescribed by s. 427 which applies to such cases.

For commentary see notes under s. 425.

Procedure : Non-cognizable — Summons — Bailable — Compoundable when
the only loss or damage caused is loss or damage to a private person — Triable by
any Magistrate — Triable summarily.

Jurisdiction : — A Magistrate has no jurisdiction to take cognizance of a
case of mischief where there is a bona fide dispute between the contending parties
with regard to the right in and possession of the property, the subject-matter of
the charge (c).

Both parties setting up ownership — conviction without finding
ownership not tenable s — Where in a prosecution under this section each
of the contending parties claims ownership of the property in respect of which
the offence is alleged to have been committed, the conviction of the accused, in the
absence of a finding as to ownership cannot be sustained. In such a case it would
be proper for the trying Magistrate to hold that the accused person was acting
in exercise of a bona fide claim of right (d).

Burden of proof : To prove that the accused caused damage is not enough.
The prosecution must -prove against each individual convicted that he caused the
damage with a wrongful intent, with a knowledge that he was not justified in doing
it and that the party under whose orders the accused was acting had no title (e).

Summary trial s — A person may be tried summarily for mischief unless
there is a bona fide claim of right depriving the Magistrate of jurisdiction (f), but
a Magistrate in trying a case under this section summarily must record his reasons
for conviction in such a way that the Court of revision will be in a position to
judge whether there are sufficient materials to support the conviction (g).

Acquittal on a charge under this section is a bar to the retrial on the same
facts on a charge under s. 379 (h).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you {name
of accused) as follows

That you, on or about the day of , at ,

committed mischief by causing wrongful loss or damage to XY the property of

(b) Parameshwar Singh, (1911) 38 C. 180.

(c) Gainu Panday, (1921) 2 Pat. L. T. 394 : 23 Cr. L. J. 504 : 68 I. C. 40.

(d) Girish Chandra Roy v. Akhay Kumar Sardar, 22 Cr. L. J. 50 7 (Cal.) 62 I. C.
331 ; Mahadoshei, (1889) Rat. Unrep. Cr. C. 432.

(e) Issur Chander Mundle v. Rohim Sheikh, (1876) 25 W. R. (Cr.) 65.

• (f) Gamirulla Sarker v? Ahdul Sheikh, (1884) 10 C. 408, following Issur Chandra

Mundle v. Rahim Sheikh . (1876) 25 W. R. (Cr.) 05, disapproving Shakur Mahomed v.
Chunder Mohan, (1874) 21 W. R. 38 (Cr.).

(g) Murat Singh, (1927) 26 A. L. J. 109, following Mohan, 5 A. W. N. 213,
Lachman, 0 A. W. N.*181, Md. Hang, 19 A. W. N. 81 and Brijbasi _ 10 A. L. J. 251.

(U) Fazer Pramanik, (1922) 37 C. L. J, 253.

862

THE INDIAN PENAL CODE

[CHAP. XVII

XY amounting to rupees and that you thereby committed an offence

punishable under s. 426 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried by me on the said charge.

Can there be a separate conviction lor mischief and theft ? — An

accused person who has been charged with theft of sheep cannot be separately
charged with and convicted of mischief for the subsequent killing of it (i)^ The
Bombay High Court has held that it is not illegal to convict prisoners of mischief
as well as of theft (j). Separate conviction and sentences under Ss. 429 and 379
are bad in law (k).

It may be pointed out that under s. 235 of the Criminal Procedure Code a
person may be tried and convicted under both these sections. The above
decisions (i), (j) and (k) are no longer good law.

Punishment ' The Law Commisssioners observe : “ In laying down the
punishment for different degrees of the offence of mischief, the gradation observed
refers to the amount of loss sustained, a mode of distinction not admitted in esti-
mating the degrees of criminality in other offences against property” (1).

Where the act of an accused person coupled with his intention or knowledge,
constitutes a graver offence, the circumstance that the same act also answers to
the definition of another and subordinate offence, does not render him liable to an
additional punishment for it (m).

427. Whoever commits mischief and thereby causes loss
Mischief causing or damage to the amount of fifty rupees or
damage to the amount upwards, shall be punished with imprison-
of fifty rupees. ment 0 f either descriptioft for a term which

may extend to two years, or with fine, or with both.

Mischief***. 425.

This section prescribes heavier punishment than the preceding section where
the loss or damage caused amounts to fifty rjipees or upwards. In other respects,
it is the same as s. 426.

Procedure : — Non-cognizable Warrant Bailable compoundable, when

the loss or damage caused is loss or damage to a private person, otherwise it is non-
compoundable — Triable by Presidency Magistrate, or Magistrate of the first or
second class — Triable summarily.

Jurisdiction to try summarily is primarily determined by the petition of com-
plaint or on the allegations with which the help of the Court is sought. A case of
graver kind of mischief is not triable by a Magistrate of the third class (n).

Power of Sessions Judge to direct commitment of connected offences
not so exclusively triable : — Where an accused is discharged of an offence
exclusively triable by a Court of Session, e.g., s. 436, a Sessions Judge is competent
to order a commitment for an offence not exclusively triable by such Court, e.g.,
one under $. 427, if it is intimately connected with the former, and forms part of the

(i) Mader Saheb, (1902) 1 Weir 497 ; Genya, (1877) Rat. Unrep. Cr. C. 129.

(j) Narayan Krishna , (1860) 2 B. H. C. R. 392.

(k) Sahrae , (1887) 8 W. R. (Cr.) 31 decided undersold Criminal Procedure Code.

(l) First Report s. 608, 5

(m) Dad Basaya, (1874) 11 Bom. H. C. R. (Cr. C.) 13.*

(n) Raghunandan Pro sad, (1924) 47 # A. 64 ; 85 I. C. 730.

OF MISCHIEF

SEC. 427 ]

853

same transaction but not for an offence under s. 380 the offence thereunder being
totally different from the category of offences under Ss. 427 and 436 (o).

Autrofois acquit s— Where petitioner was acquitted of the offence of mis-
chief under s. 427, a second trial on the same facts for an offence under s. 147 was
held barred by the provisions of s. 403, Cr. P. Code (p).

Compounding offence i — In a proceeding under this section both parties
filed a petition of compromise agreeing to be bound by the decision of arbitrators
named therein and asked for adjournment for settlement of the dispute. The arbi-
trators made an award which was objected to by the opposite party. On application
to record an acquittal under s. 345, Cr. P. Code, the Magistrate held that the case
had not been compounded and that the trial should proceed, held that the agreement
to refer the case to arbitration was not a final settlement of the dispute which the
Court was bound to accept (q).

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name of
accused) as follows : —

That you, on or about the — day of , at-

committed mischief and thereby caused loss or damage to the amount of fifty

rupees (or upwards ) and thereby committed an offence punishable

*Under s. 427 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Punishment : — In the Punjab Frontier District and the North-West Front*
ier Province or in Baluchistan, see s. 12 of the Frontier Crimes Regulation, 1901
(III of 1901) Punjab and N. W. Code.

•v

Scope : — S. 426 make9 an ordinary case of mischief punishable but where
the extent of damage or loss caused is Rs. 50 or upwards the punishment is
awardable under this section (q 1 ).

Mischief causing damage to the amount of fifty rupees :~An offence
committed on the high seas within three miles from the coast of British India, as
being committed within the territorial limits of British India, is punishable under
the Indian Penal Code. Where certain inhabitants of the village M removed a
number of fishing stakes lawfully fixed in the sea within three miles from the shore
by villagers of the neighbouring village, the Bombay High Court held them guilty
of mischief (q ). Where the accused was guilty of negligence, he was held not liable
to be convicted of mischief, for that offence imports that the act was done wilfully (r).
Where it is established that an owner of cattle habitually and intentionally permits
his cattle to stray in order that they might graze on the crops of others, then any
given instance of such straying cannot be regarded merely as a case of negligence
and the owner is in such case guilty of offences under s. 427 (s). Even in the case
of a person wholly abandoning an animal, such as a bull, without any precaution
taken for its future control, it is not to be assumed that he would be free from
liability, civil or criminal, in respect of damage done by such animal (t).

(o) Bijoy Gopal Ghose v. Iswar Chandra Kumar, (1926) 63 C. 646: A. I. R.

(1926) Cal. 1036. ,

(p) In re Chinnappa Naidu, (1924) M. W. N. 153 : 26 Cr. L. J. 244.

(q) Srish Chun dr a Ghose v. Abani Kanth Hezra , (1925) 42 C. L. J. 139.

(ql) Raghunandan Prosad, (1924) 47 A. 64.

(q2) Kastya Rama, (1871) 8 Bom. H. C. R. (Cr. C.) 63.

(r) Ahidullah, £911) 6 S. L. R. 263 : 13 Cr. L. J. 536 : 15 I. C. 808.

\) Puma Godad, (1918) 21 Bom. L. R. 247 : 20 Sr. L. J . 387 : 60 1. C. 995.
t) Nalla, (1887) 11 M. 145 (147). t

854

THE INDIAN PENAL CODE

[CHAP. XVII

428. Whoever commits mischief by killing, poisoning,
Mischief by killing o r maiming or rendering useless any animal or
maiming animal of the animals of the value of ten rupees or upwards,
value of ten rupees, ghal j be punished w *h imprisonment of either

description for a term which may extend to two years, or with
fine, or with both.

Animal — s. 47.

Analogous law : — This section corresponds to Ss. 40 and 41 of the English
Statute 24 and 25 Vict. f c. 41 (the Malicious Damage Act of 1851) which provides
as follows : —

“ S. 40 — Whoever shall unlawfully and maliciously kill, maim or wound any cattle
shall be guilty of felony and being convicted thereof shall be liable to be kept in penal
servitude for any term not exceeding fourteen years.

" S. 41 — Whoever shall unlawfully and maliciously kill, maim or wound any dog,
bird, beast or other animal, not being cattle, but being cither the subject of larceny at
common law, or being ordinarily kept in a state of confinement, or for any domestic
purpose shall be imprisoned/' etc.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Tri-
able by Presidency Magistrate, or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate, etc.) hereby charge you (name of
accused) as follows : —

That you, on or about the day of , at ,

committed mischief by killing (or poisoning, maiming or rendering useless) an

animal to wit ( describe the injury ) which was the property of XY of

the value of ten rupees and that you thereby committed an offence punishable
under s. 428 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge?

Mischief by maiming animals Bachelor, J., held : “ Having regard to
the position of the word * maiming # in this section, where it occurs in conjunction
with the words 4 killing, poisoning or rendering useless, 4 I am disposed to think
that the 4 maiming ' in the section implies some permanent disability inflicted on the
animal, I do not seek to give an exhaustive definition of the word 4 maiming/ But
it appears to me that involved in the word is the notion of the privation of the use
of same limb or member involving a permanent injury, and not a mere disfigure-
ment. That view is, I think, in accordance with Mr. Justice Philips decision in
Marogowdha v. Srinivasa Rangacharier (u) where the record shows that both the
ears of the animal were removed and the hearing had been permanently
impaired " (v).

In an English case, where the facts were that the prisoner pulled out part of the
tongue of a horse, Wightman, J., held that there was no such permanent injury
inflicted on the animal as would support the count (w). But if the animal is dis-
abled for some days only, the offence falls under s. 426, supra (x).

. Pouring acid into the eye of a mare, and thereby blinding her is a maiming
within Statute 7 and 8 Geo. IV, 430, s. 17 (y). On an indictment for adminis-

(u) Marogowdha v. Srinivasa Rangacharier , (1911) 3f> M. 594 : 21 M. L. J. 843 :
(1911) M. W. N. 141 : 10 M. L. T. 192 : 12 Cr. L. J. 482 : 12 I. C. 90.

(v) Anna Lakman Bhintade, (1916) 18 Bom. L. R. 289: 17 Cr. L. J. 253 : 34
I C 973.

*(w) ’ Richard Jeans , (1844) I. C. and K. 539; M'Laughlin , (1838) 8 C. and P.
635. •

(x) Subrao Sukkal , (1901) 3 Bom. L. R. 503.

(y) Owen Owens, (1828) 1 Mood. C. C <f 205j

SEC. 429 ]

OF 1ISCHIEF

855

taring sulphuric acid to eight horses v with intent to kill them, the prosecutor may
give evidence of administering at different times to show the intent, but if the
jury are satisfied that the prisoner administered poison under an idea that it would
improve the appearance of horses, they ought to acquit him (z).

Wounding is not necessarily maiming. Wounding is causing an injury to
the person by which the skin is broken (a). It is not necessary to prove that any
instrument was used to inflict the wound (b). Where the Jury found that the
prisoner did not in fact intend to kill, maim, or wound a mare whose death he had
caused by inserting the handle of a fork into the vagina of the mare but that he
knew what he was doing would or might kill, maim or wound the mare, and the
Jury convicted the prisoner, it was held that the conviction was right (c).

429 . Whoever commits mischief by killing, poisoning,
„ . maiming or rendering useless, any elephant,

mSng^wttie ' etc! of camel, horse, mule, buffalo, bull, cow or ox,
any value or any animal whatever may be the value thereof, or any

rupees 6 vaIue ° f hfiy other animal of the value of fifty rupees or

upwards, shall be punished with imprison-
ment of either description for a term which may extend to five
years, or with fine, or with both.

Maiming — s. 428, supra .

This section provides for an aggravated form of punishment as the value of the
animal is fifty rupees or upwards. In other respects this section is the same as the
preceding section. This section bears the same relation to as s. 427 & 428 is to
s. 426.

Procedure : Cognizable — Warrant — Bailable Not compoundable

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name of
accused) as follows : —

That you, on or about the • day of , at ,

committed mischief by killing (or poisoning, maiming or rendering useless) the ele-
phant of X Y [ or camel, horse, mule, buffalo, bull, cow or ox) — (mention the animal
valued at Rs. 50)] and that you thereby committed an offence punishable under
s. 429 of the Indian Penal Code, and within my cognizance (or the cognizance of the
Court of Session or the High Court).

And I hereby direct that you be tried by me (or by the said Court) on the said
charge.

Killing, poisoning, maiming or rendering useless domestic animal
or animals valued at Rs« 50 or upwards : — Beverly, J., held : “ The words
* bull * and * cow ’ in s. 429 include the young of those animals, and that the ex-
pression 4 any other animal ’ in that section does not mean animal of the kind al-
ready mentioned, but refers to an animal of a different genus altogether, such as a
dog or a goat. It is stated in Mayne’s commentary on the Indian Penal Code that
at the 4th Madras Sessions of 1864, Scotland, C. J., held that a calf does not come
within the terms * bull, cow, or ox/ So far as we are aware, that decision is not

William Mogg, (1830) 4 C. and P. 304.
Moriatty v, Brooks, (1834) 6 C. and P. 884,
Buttock, (1868) I* R. 1 C. C. R, 115.

Welch, (1876) 1 Q. B. D. 28.

856

THE INDIAN PENAL CODE

[ CHAP. XVII

reported and we are not prepared to follow it *’ (d). A bull was released at
It funeral, and it appeared that the complainant did not abandon all control and
property over it and it entered in the field of the 1st accused's sister-in-law and ate
part of the straw heaped on it and the accused killed the animal, the Magistrate
convicted the accused under this section but the appellate Court acquitted him.
The High Court of Madras set aside the order of acquittal holding that before
finding that the animal ceased to be private property, it was necessary to see whether
the funeral ceremony was followed by an abandonment of all control and property
over the beast (e). It has been held that a bull dedicated at a Sradh ceremony is
nulliw proper lias > and it is, therefore, incapable of being the subject of mischief
and although the killing of such an animal is outrageous to the religious feeling of a
Hindu and specially of one who dedicated it, the accused could not be convicted (0.

Cutting off the ears of a horse amounts to ' maiming ' within the meaning of
this section (g).

Where the prisoner was charged with setting fire to an out-house and in
another count with setting fire to a stable, it was held that the building was neither
a stable nor an out-house, and that if a person set fire on it, he was not indictable
for arson (h).

Where accused threw a stone at a young buffalo and thereby caused its death,
and it appeared that her intention was to drive it out of her backyard, it was held
that the accused was not guilty of mischief (i).

Theft and mischief : — The Patna High Court has recently held that where
theft of an animal has been committed, the mere killing of it afterwards by the
person who stole it for the purpose of eating it himself cannot render him liable
under this section (j). An accused person who has been charged with theft of sheep
cannot be separately charged with and convicted of mischief for the subsequent
killing of it (k).

Punishment As to the Frontier District in the North-Western Frontier
Province or in Baluchistan, see s. 12 of the Frontier Crimes Regulation (III of
1901) Punj. and N. W. Code. A double sentence for theft and mischief is illegal
and improper (1).

430# Whoever commits mischief by doing any act which
causes, or which he knows to be likely to
Mischief by injury to cause, a diminution of the supply of water for
by r wrongfuTiy lg diverting agricultural purposes, or for food or drink
water - for human beings or for animals which are

property, or for cleanliness or for carrying
on any manufacture, shall be punished with imprisonment of
either description for a term which may extend to five years, or
with fine, oi with both.

(d) Harimundle v. Jafar, (1895) 22 C. 467 ; contra in Cholay, (1864) 4th Mad.
Sessions, unreported per Scotland, C. J.

(e) Shanta Verana, (1887) 1 Weir 600.

(f) Romesh C bunder Sanyal v. Him Mondul, (1890) 17 C. 862.

(g) Marogowdha v. Srinivas Ranghachariar, (1911) '35 M. 594 : 21 M. L. T. 843 :
(1911) M. W. N. 141 : 10 M. L. T. 192 : 12 Cr. L. J. 482 : 12 I. C. 90.

(h) Haughton, (1833) 6 C. and P. 665.

(i) Obammal, (1901) 1 Weir 602.

(j) Hussain Buksh Mian, (1924) 3 P. 804 : A. I. R. (1926) Pat. 34.

(k) Madar Saheb, (1902) Weir 497 no longer good law.

(l) Bichik Ahir v. Anchuk, (1866) 6_ W. R. (Cr.) 6.

SEC. 430 ]

OF MISCHIEF

857

# This section prescribes punishment for mischief by injury to works of irri-
gation or by wrongfully diverting water, in other words, by causing diminution
of water-supply and hence it punishes an aggravated form of mischief. But where
a person voluntarily corrupts or fouls the water of a public spring or reservoir
without causing diminution of water-supply, the* offence is public nuisance
punishable under s. 277.

Essential ingredients of the offence To bring an offence under this
section it is necessary to establish, in the first instance, that the accused's act
amounted to mischief, and in order to constitute that act, an act of mischief, it is
necessary under s. 425, which gives the definition of the term * mischief * to show
that in doing so, he had the intention to cause or knew that he was likely to cause
wrongful loss or damage to any person. Further, it must be shown that the loss
was wrongful, that is to say, that the act amounted to an infringement of some right
resting ih the person to whom the loss had been caused (m).

To constitute the offence of mischief, it is necessary to show that the act of
closing the channel was done with a mischievous intent and not in the bona fide
assertion of a right (n).

Procedure : — Cognizable — Warrant — Bailable — Coumpoundable when per-
mission is given by the Court before which the prosecution is pending (o) — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first or second class.

Burden of proof : — In order to substitute an offence under this section,
the prosecution must prove that there has been unlawful and intentional interference
on the part of the accused with the admitted or proved rights of the complainant (p).

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name of
accused) as follows

That you, on or about the day of , at ,

committed mischief by doing an act, to wit , which caused (or which

you knew to be likely to cause) a diminution of the supply of water of XY for
agricultural purposes (or for food or drink for human being or for animals or for
cleanliness or for carrying on any manufacture) and that you thereby committed
an offence punishable under s. 430 of the Indian Penal Code, and within my cog-
nizance (or cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by the said Court (or by me) on the said
charge.

Guilty knowledge Guilty knowledge is essential to a conviction under
this section (q).

Diminution of the supply of water : — A Full Bench of the Madras High
Court has held that under this section the physical requisites of the act are the
doing of an act which causes, or the doer's knowledge is likely to cause, a diminu-
tion of supply. He also fulfils the mental requisites when he does this with intent
to cause wrongful loss, and the intention is properly held to be'such when he takes
it without any sort of right (r).

(m) In re Budda Reddi, (1922) 44 M. L. J. 234 : (1922) M. W. N. 839 : 31
M. L. T. 421 : A. I. R. (1923) Mad. 111.

(n) Athinarayanaswami Pillai v. Subbier , (1888) 1 Weir 505.

(o) These words wer6 substituted for " Not compoundable " by Act XVIII of
1923.

(p) Banwari Karmakar v. Gosto Behari Karmahar, (1920) 32 C. L. J. 476: 22
Cr. L. J.415: 61 I. C. 655.

(q) Harisingh v. Kanchan Mehta , (1919) 20 Cr. L. J. 612 : 52 I. C. 271 (Pat.).

• (r) Ramkrishna v.*Palaniyadi t (1876) 1 M. 262 (F. B.) followed in Jagannath
Bhikaji (1885) 10 B. 183.

858

THE INDIAN PENAL CODE [CHAP. XVII

This section applies equally to irrigation channels as to other courses of
irrigation, such as tanks and ponds (s). Where the accused knew that the preven-
tion of the supply of water was necessary for agriculture purposes, held, the convic-
tion under this section is clearly made out (t).

Landlord interfering* with water supply : — Where, for purposes of fishing,
the Maliks for the first time emptied out all the small Khals in an Abai with the
result that the tenants of the Chuk suffered from a scarcity of fresh water, held
that before the landlords or their agents could be convicted under this section, it
must be made abundently clear that the landlords could not have a right to do what
they did with reference to the Khals (u).

Taking more water than authorised Where petitioners had taken more
water than they were entitled to, in violation of an order as to turns issued by the
Tahsilder, so as to cause a diminution of water-supply to other ryots, the Madras
High Court held that they were rightly convicted under this section (v).

Bona fide dispute There cannot be a conviction under this section where
there is a right or a bona fide claim of right (w). The conviction of a person for an
offence under this section is not proper where there is a dispute regarding the right
to use water which is pre-eminently a matter for the civil courts to decide (x).

Intention to cause wrongful loss is the essential element s — Where an
accused is charged under this section, his intention to cause wrongful loss is the
essential element to be considered (y).

If a supply channel is filled up or is obstructed by a dam put up or by raising
a dam already existing, there is a change made in the channel which diminishes
its value or utility and which if it was done with intention to cause or with know-
ledge that it was likely to cause wrongful loss to any person would constitute the
offence of mischief. If the act so done causes a diminution of supply of water as
mentioned in s. 30, an offence under this section is committed (z). Where a person
was convicted under this section and where there was no evidence to hold that
the act done was one which caused or was likely to cause a diminution of the supply
of water for agricultural purposes, the Allahabad High Court held him not guilty
under this section, but convicted him under s.426 as the accused by making a breach
in the wall of a canal committed wilful mischief (a). An offence under this sec-
tion is committed when a person without any sort of right takes water to which
another is entitled whereby the latter is deprived of the full supply that he has a
right to claim . Such taking, in the absence of a bona fide claim of right, evidences
an intention to cause wrongful loss (b).

Mischief by cutting bund Where the accused cut the embankment pf $
pyne or water-channel and drew the water to their own fields and were convicted

(s) Sypu Chinna Mengaiya, (1885) 1 Weir 510; Krishna Aiyar v. A yyatotoa

Naich, (1925) M. W. N. 45. yy PF

(t) Krishna Ayyar, (1925) M. W. N. 45, following Souriraja Naidu v. Raja •
gopalav , (1924) M. W. N. 078.

. (u) Ashutosh Ghosh, (1929) 57 C. 897 : 50 C. L. J. 589 : 34 C. W. N. 80.

(v) Chengamma Naidu , (1911) M. W. N. 349 : 12 Cr. L. J. 551 : 12 I. C. 6271

(w) Deputy Legal Rembr. Behar v. Matukdhari Singh, (1915) 20 C. W N 128

(x) Gulab Singh , (1926) 98 I. C. 474 ; 27 Cr.L J. 1354, A. I. R. (1927) All. 112:

Nallappa Udayan , (1899) 1 Weir, 502. '

(y) Indra Talavar v. Narasingha , (1915) 10 Cr. L. J. 542 : 29 I. C. 070 (Mad.).

(z) Dinabandu Rajasaru v. Viswavarayi Lachana Dora. (1923) M. W. N. 034 •
24 Cr. L. J. 830 : 74 I. C. 802 : A. I. R. (1924) Mad. 170.

(a) Bansi, (1912) 34 A. 210 : 9 A. L. J. 162 : 13 Cr. L. J. 141 : 13 I. C. 829.

(b) Chidam Baram Pillai v. Mahamed Khan Sahib, (f918) 34 M. L. T. 200 : 23

M. L. T. 248 : 19 Cr. L. J. 860 ; 44 I, C. 5$0, J

SEC. 431 ]

OF MISCHIEF

859

of theft and mischief under Ss. 379 and 430, the Calcutta High Court held that the
running water not reduced into possession could not be the subject of theft, but the
cutting of the embankment constituted an offence under this section (c). Where
the accused cut a dam erected by the complainant not to take a supply of water but
to save their own crops, and it was not proved that the act of the accused caused
diminution of the supply of water for agricultural purposes or that the accused
knew that it was likely to cause such diminution in future, it was held that the
conviction under this section was bad (d).

Where the accused was charged under this section and it was stated therein
that he cut the bank of a distributory of a canal for the purpose of taking water
to their fields, the Allahabad High Court held that in order to sustain a conviction
under this section it is necessary for the prosecution to show that the act of the
accused in fact caused, or but for prompt intervention, would have caused, dimi-
nution in the ordinary supply of water for agricultural purposes (e).

Where drainage water from the higher grounds and from other Government
tanks was flowing in a defined channel above an embankment overflowing the same
and flowed without diminution also in a defined channel below, it was held that
the owners of the embankment had no right to raise the same to interrupt the flow
for irrigating their own lands, but as in the circumstances of the case it was found
that there was a reasonable doubt as to the intention of the accused, they were
acquitted (f).

431. Whoever commits mischief by doing any act which
Mischief by injury to renders or which he knows to be likely to
public road, bridge, render any public road, bridge, navigable
nver or channel. river or navigable channel, natural or arti-

ficial, impassable or less safe for travelling or conveying property,
shall be punished with imprisonment of either description for a
term which may extend to five years, or with fine, or with both.

This section is wider than Ss. 279, 280 and 283 which deal with public nui-
sance. This section applies to mischjef by injury to public roads, bridges, rivets
or channels.

Procedure : — Cognizable — Warrant-Bailable Not compoundable — Tri-
able by Court of Session, Presidency Magistrate or Magistrate of the first or second
class.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day 0 f , at ,

committed mischief by doing an act, to wit , (specify it) which ren-

dered or which you knew to be likely to render a public road (or bridge or navi-
gable river or a navigable channel) to wit , impassable (or less safe for

travelling or conveying property) and that you thereby committed an offence
punishable under s. 431 of the Indian Penal Code and within my cognizance (or
the cognizance of the Court of Session or the High Court).

And I hereby direct th&t you be tried (by the said Court) on the said charge.

(c) Sheikh Arif, (1908) 35 C. 437.

(d) Nafar Chandra Bhattacherjee v. Helaluddin Mon dal, (1904) 8 C. W. N. 370.

(e) Hamarain , (1919), 41 A. 599: 17 A. L. J. 680: 20 Cr. L. J. 425: 51 I. C.

201 . •

(f) Kanda Kumarila Venkata R$di v.Kvmari Rae, (1913) M. W. N. 179.

860

THE INDIAN PENAL CODE

[CHAP. XVII

to roads, bridges, navigable rivers or channels {—Where the
facts proved were (I) that two pieces of timber came floating down the river in a
flood and, coming in contact with the bridge, destroyed two of its pillars ; (2) that
the accused cut the smaller piece at a point on the bank of the river some eight
miles above the bridge, and left it lying on the bank, it was held that the conviction
under this section could not be sustained (g).

Where the accused dug a trench on waste land bordering upon the public
road in order to protect his land from drainage water and thereby incidentally
caused damage to the public road, it was held that this was not sufficient to consti-
tute the offence of mischief (h).

That the mere placing of bricks on the road would not come within this sec-
tion but it might fall either under s. 283 or s, 435 (i).

432. Whoever commits mischief by doing any act which
Mischief by causing causes or which he knows to be likely to cause
tfoT^oTubhc dJSnage an inundation or an obstruction to any public
attended with damage, drainage attended with injury or damage,
shall be punished with imprisonment of either description for a
term which may extend to five years, or with fine, or with both.
Mischief — s. 425, Act — s. 32.

This section punishes mischief by causing inundation or obstruction to public
drainage attended with damage.

Procedure I— Cognizable-Warrant— Bailable Not compoundable — Tri-
able by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge : — I ( name and office of Magistrate, etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at *■%

committed mischief by doing an act, to wit , which caused (or which

you knew to be likely to cause) an inundation or an obstruction to a public drainage
( describe it) attended with injury or damage, «and you thereby commited an offence
punishable under s. 432 of the Indian Penal Code, and within my cognizance (or
the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried by me (or by the said Court) on the said
charge.

Mischief by causing inundation or obstruction to public drainage : —

It is not sufficient to show probable consequential damage to other property.
The words ‘ attended with injury or damage * mean injury to the drainage itself, not
to other property (j).

Where the allegation was that the accused had cut away a part of the slope
above the toe for the purpose of erecting a house and extending a garden, and the
evidence showed that a cutting in an old bund like that done by the accused was
in the highest degree dangerous and the accused was convicted under this section
under a summary trial, the Calcutta High Court held that in order to justify a
conviction for the offence of mischief, it must appear ‘that the person accused had
done a particular act with intent to cause, or knowing that he is likely to causey

(g) Malayan Kalan, (1883) 1 Weir 610.

(h) Kairathadi Ananta Bhatlar, (1888) 1 Weir 611.

(i) Jugal Naraitt Singh , (1908) 12 C. W. N. cxxii.

(j) (1868) 4 M. H. C. R. App. 16. t

SECS. 433-34 ]

OF MISCHIEF

86X

wrongful loss or damage to the public or to any person and that as the house and
garden in whioh the accused was engaged would be the first to be swept away in the
event of the dreaded breach in the bund, and consequently such guilty knowledge
could not be inferred, and further the summary trial was bad in law as the prose-
cution had been started by the Magistrate who had come across the accused while
out walking one morning (k).

433. Whoever commits mischief by destroying or moving
any light-house or other light used as a sea-
Mischief by destroy- mark, or any sea-mark or buoy or other thing
ing iTS&S alight- placed as a guide for navigators, or by any
house or sea-mark. act which renders any such light-house,
sea-mark, buoy or other such thing as
aforesaid less useful as a guide for navigators, shall be punished
with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.

This section punishes mischief destroying, moving or rendering less useful a
light-house or sea-mark and may be compared with the provisions ors. 281 which
deal with nuisance regarding the same.

Troqedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Court of Session.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at 1

committed mischief by destroying (or moving) any light-house (or other light)
used as a sea-mark [(or any sea-mark or buoy or other thing placed as a guide for

navigators to wit — ) (or by any act which renders any such light-house,

sea-mark, buoy or other such thing less useful as a guide for navigators)], and you
(hereby committed an offence punishable under s. 433 of the Indian Penal Code
and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

See commentary on s. 281, supra.

434. Whoever commits mischief by destroying or moving

( any land-mark fixed by the authority of a

Mischief by destroy* « «• i ■i-i j

ing or moving, etc., a public servant, or by any act which renders
land-mark feed by suc h land-mark less useful as such, shall be
punished with imprisonment or either de-
scription for a term which may extend to one year, or with fine,
or with both.

Mischief — s. 425.

Public servant — s. 21.

This section punishes mischief by destroying the land-mark fixed by the
authority of a public servant whereas the preceding section deals with the de-
struction of sea-marks but the punishment provided for is milder as the perils of
the seas are comparativelyjhigher.

» Removal of boundary pillars constitutes an offence under this section when the
object of the petitioners was to include a strip of land within a certain village by
the removal of boundary pillars (I).

(k) Prannath Saha, (1876) 26 W. R. (Cr.) 60.

(l) Uanuman Singh v. Bhagwan, (1.010) 14 C. W. N. cclxvi,

862

THE INDIAN PENAL CODE

[ CHAP. XVII

Procedure : — Non-cognizable — W arrant — Bailable Not compoundable —

Triable by Presidency Magistrate or Magistrate of the first or second class.

Charge I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at

committed mischief by destroying (or moving) any land-mark, to wit-
which was fixed by the authority of XY, a public servant, and that you thereby
committed an offence punishable under $. 434 of the Indian Penal Code, and within
my cognizance.

Mischief by destroying or moving, etc,, a land-mark fixed by the
authority of a public servant : — It is no mischief if a person innocently removes
a barricade placed by a municipality on a piece of land in front of his house which
bears all access to the premises of the accused from the public road (m).

Where a Magistrate in passing an order under s. 145 of the Criminal Proce-
dure Code, ordered boundary marks to be laid down defining the limits of the
possession of the respective parties and these boundary marks having been re-
moved by tfie accused, they were convicted under this section, the Allahabad High
Court set aside the conviction as the boundary marks in question were not erected
under the lawful authority of a public servant (n), but where a Surveyor-em-
powered by a notification under s. 17 (a) of the Survey and Boundary Marks Act
to survey certain lands, in good faith and under colour of his office, entered upon
the land of the accused and put up some boundary marks on what he thought was
the estate boundary and when accused, came across his chain and after asking him
who he was, told him not to measure, removed the marks already set up and were
charged under Ss. 186 and 434; the Magistrate acquitted the accused under this
section but the High Court held that the accused were guilty of the offences under
Ss. 186 and 434 (o).

435. Whoever commits mischief by fire or any explosive

Mischief by fire or ex- substance, intending to cause, or knowing
it to be likely that he will thereby cause,
damage to any property to the amount of one
hundred rupees or upwards [or (where the
property is agricultural produce) ten rupees
or upwards], shall be punished with imprisonment of either de-
scription for a term which may extend to seven years ajid shall also
be liable to fine.

plosive substance with
intent to cause damage
to amount of one hun-
dred or (in case of agri-
cultural produce) ten
rupees

While Ss. 285 and 286 deal with negligent conduct regarding fire or combus-
tible matter and with explosive substance, this section punishes mischief by fire or
any explosive substance causing damage to the amount of Rs. 1001 and in the case
of agricultural produce the value of the property damaged amounting to ten
rupees or upwards. If the damage to other party falls short of Rs. 1001 the offence
is punishable under s. 427.

Analogous law In England, the storage, sale and disposal of explosives
is governed by the Explosive Substances Act, 1875^(p).

(m) Abdul Aziz, (1895) Rat. Unrep. Cr. C. 745.

(n) Rcmeshar, (1904) 27 A. 300.

(o) Madhava Bhanjo, (1910) M. W. N. 183 : 31 M. L. J. 305.

(p) 38 and 39 Viet. c. 97.

OF MISCHIEF

863

SEC. 436 ]

Legislative changes The words “ or where the property is agricultural
produce ten rupees or upwards " were inserted by the Indian Pena! Code Amend-
ment Act, 1882 (VIII of 1882) s. 10.

The object* of the amendment was to protect, * agricultural produce ’ which
is often stacked.

Procedure ^-Cognizable— Warrant — Bailable— Not compoundable— Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Form of charge: — I ( name and office of Magistrate , etc.) hereby charge
you (; name of accused) as follows : —

That you, on or about the -day of , at ,

committed mischief by fire (or any explosive substance) intending thereby to (or
knowing it to be likely that you will thereby) cause damage to a property to wit

, to the amount of Rs. 1001 (if a building , insert you intended or knew

that destruction of building will follow) or Rs. 10 (if the property is agricultural
produce) and that you thereby committed an offence punishable under s. 435 of the
Indian Penal Code and within my cognizable (or the cognizance of the Court of
Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Punishment : — As to punishment under this section in the Frontier District
see the Frontier Crimes Regulation (III of 1901) s. 12 (2) Punj.and N. W. Code.

Mischief by fire or explosive substance to property amounting to
1001 rupees or agricultural produce valued at Rs. 10 Where the accused
set fire to some rubbish in his field which was close to a protected forest and a
gust of wind CEime ^fid carried the flame to the adjoining forest land with the result
that about two acres of land was burnt causing damage to the extent of Rs. 21,
the accused was convicted under s. 426, but the Bombay High Court held that the
accused could not be convicted of the offence of mischief (q).

436. Whoever commits mischief by fire or any explosive
' . , . , , substance, intending to cause, or knowing

Mischief by fire or ex- . l Vi l 1 i *n 1 l

plosive substance with it to be likely that he will thereby cause,

mtent to destroy house, destruction of any building which is

ordinarily used as a place of worship or

as a human dwelling or as a place for the custody of property, shall

be punished with transportation for life, or with imprisonment of

either description for a term which may extend to ten years* and

shall also be liable to fine.

This section punishes mischief by fire or explosive substance with intent to
cause the destruction of any building which is ordinarily used as a place of worship,
or a human dwelling or as a place for the custody of property. This section pro-
vides for an enhanced sentence than the preceding section.

Procedure r— Non-cognizable — Warrant — Not bailable — Triable by Court
of Session.

Charge : — The intention is a most important element in such a charge (r).
The charge should lay the totent as an intent to cause the destruction, not of a
house simply, but of a house used as a human dwelling (s). *

(q) Nandeyappagowda Shiddangowda , (1908) 8 Bom. L. R. 851.

(r) (1865) 3 W. R. (Cr. L.) 18,

(s) - Dubarso Polie, (1867) 8 W. R. (Cr.) 30.

864

THE INDIAN PENAL CODE

[ CHAP. XVII

Trial by Jury : — Where the effect of the notification published in the official
Gazette was that on the 11th September 1921 certain offences including s. 436
were directed to be tried in the district of Darbhanga by a jury, held that the trial
by the Judge with the aid of assessors was void (t).

*•

Evidence— on an indictment of offences the subject of other chargesr-on
an indictment for arson in setting (ire to a rick the property of A, evidence may
be given of the prisoner s presence and demeanour at (ires of other ricks the
property of B and C, occurring the same night, although those fires are the sub-
ject of other indictments against the prisoner, such evidence being important to
explain his movements and general conduct before and after the (ire of As
rick ; but evidence is not admissible of threats, statements or particular acts point-
ing alone to the other indictments and not tending to implicate or explain the
conduct of the prisoner in reference to that (ire (u).

Form of charge t— I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at-

committed mischief by (ire (or any explosive substance) to wit intending

to cause (or knowing it to be likely that you would thereby cause) the destruction
of a building of XY which was ordinarily used as a place of worship (or as a human
dwelling or as a place for the custody of property) and that you thereby committed
an offence punishable under s. 436 of the Indian Penal Code, and within the
cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried on the said charge.

Punishment : — As to punishment under this section in the Frontier District,
see the Frontier Crimes Regulation (III of 1901) s. 12 (2)Pufij. and jN. W.Code.

Conviction on inadmissible evidence : — Where the accused was convicted
of arson but the Sessions Judge admitted in the trial the evidence of previous (ires
with which there was nothing to connect the accused and based the conviction
amongst other on that evidence, the Calcutta High Court held that the Judge was
wrong in admitting that evidence and accordingly set aside the conviction and
sentence (w).

Ss. 149 and 436 : — In order to substantiate a charge of arson under this section
read with s. 149 it is necessary to find that either from the inception or at any stage
of the occurrence, the accused were actuated by the common motive to set fire to
the house of the complainant or that they knew that such an offence would be com-
mitted in prosecution of the common object (x).

Attempt r— The possession of the instrument to commit mischief by fire,
and the going about of the person with it, are intended to commit the act, and had
already begun to move towards the execution. These facts are sufficient to consti-
tute an attempt (y).

u

Pun i sh me n t f — As to punishment under this section in the Frontier District
see the Frontier Crimes Regulation (III of 1901), s. 12 (2) Punj. and N. W. Code.

“• It is obviously proper that in the case of mischief by fire a distinction
should be made between (mat huts of the lowest class and substantial, secure and

(t) Ramsunder Isser, (1026) 6 P. 288 : 93 1. C. 970 : A. I. R. (1920) Pat 263.

(u) Taylor, (1861) 6 Cox. C. C. 138.

(w) Abdul Kadir, 1910) 20 C. W. N. 1207 : 17 Cr. L. J. 421 : 35 I. C. 981. .

(x) Hardeo Singh, (1920) 22 Cr. L. J. 207 : 60 I. C. 067 (Pat.).

(y) Per Glover. J.. in Doyal Bowri, (1869) 3 Bom,.L. R. (Cr.) 66, Mitter, J.,
dissenting.

OF MISCHIEF

866

SECS. 437-38 ]

valuable dwellings of the better classes), but there is sufficient room for such
distinction between the maximum of !4 years and the minimum of I year, and
between rigorous end simple imprisonment and we think it best that the distinc-
tion should be left to the discretion of the judge ( 2 ).

Whip ping — in addition to an adequate substantive sentence for an offence
under this section cannot be passed (a).

437. Whoever commits mischief to any decked vessel or
any vessel of a burden of twenty tons or
o?£,£*£‘. “PW**. intending to d«troy or render
safe a decked vessel or unsafe, or knowing it to be likely that he win
one of twenty tons bur- t j^ ere ^ y d es troy or render unsafe, that vessel,

t ‘ tn ' shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall
also be liable to fine.

Vessel — s. 48.

This section punishes mischief with intent to destroy or make unsafe a decked
vessel or one of twenty tons burden. It provides for a severe punishment as the
offence is a serious one The use of the expression decked excludes ferryboats
and dinghy and fishing boats, etc., from the purview of this section.

Procedure ! — Cognizable — W arrant Not bailable "Not compoundable
Triable by Court of Session.

Charge t-'-I (home and office of Magistrate, etc.) hereby charge you
(name of accused) as follows :

That you, on or about the ....day of •••••• a V ••••••;••*

committed mischief (in case of s. 438 add by fire or any explosive substance) to &
decked vessel of XY (or to a vessel of AB of a burden of twenty tons or upwards)
intending to destroy or render unsafe (or knowing it to be likely that you would
thereby destroy or render unsafe) the said vessel, and that you thereby committed
an offence punishable under s 437 of the Indian Penal Code, and within the cog-
nizance of the Court of Session (or .the High Court).

And I hereby direct that you be tried on the said charge.

438. Whoever commits, or attempts to commit, by fire
or any explosive substance, such mischief
nSarfdSriSSi *ta as is described in the last preceding section,
s. 437 committed by fire shall be punished with transportation tor
or explosive substance. Hfe> or with impr i sonment 0 f either descrip-
tion for a term which may extend to ten years, and shall also be
liable to fine.

Attempt — s. 511, infra.

This section deals with the same matter as the last but prescribes much severer
punishment as the mischief here is committed by fire or explosive substance.

Analogous law r-Thi*section corresponds to s. 42 of the Malicious Damage
Act, 1861 (b).

(*)

8

61

First Report, s. 615.

Jatnath, (1927) 110 I. C. 218 :
• 24'and 25 Viet. c. 97.

A. I. R. (1928). Oudh. 111.

866

THE INDIAN PENAL CODE

[ CHAP. XVII

Procedure : — Cognizable — Warrant — Bailable — Not compoundable— -Triable
by Court of Session.

Charge : — See form set out under the last section.

Mischief by fire to a vessel : — Where a sailor on board a ship entered a
part of the vessel where spirits are kept, for the purpose of stealing rum, and while
tapping a cask of rum, a lighted match held by him, came in contact with the
spirits which were flowing from the cask tapped by him, and a conflagration ensued
which destroyed the vessel, it was held that a conviction for arson of the ship could
not be upheld (c).

439.

Punishment for inten-
tionally running vessel
aground or ashore with
intent to commit theft,
etc.

Whoever intentionally runs any vessel aground or
ashore, intending to commit theft of any
property contained therein or to dishonestly
misappropriate any such property, or with
intent that such theft or misappropriation
of property may be committed, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

Vessel — s. 48. Theft — s. 378.

Dishonest misappropriation — s. 403.

This section punishes intentionally running any vessel aground or ashore
with intent to commit theft, etc. The offence punishable is allied to piracy.

Procedure : — Cognizable— Warrant — Not bailable — Not compoundable —
Triable by Court of Session.

440. Whoever commits mischief, having made preparation

Mischief committed f ° r CaUsi ^. t0 fln 7 P erS0 £ n °[ hurt J

after preparation made or wrongful restraint or rear ot death, or ot

hurt Causing dcath ° r or of . wrongful restraint, shall be

punished with imprisonment of either
description for a term which maycextend to five years, and shall
also be liable to fine.

Death — s. 146. Hurt — s. 319.

Wrongful restraint — s. 339.

This section punishes mischief committed after preparation made for causing
death or hurt or wrongful restraint or fear of death, fear of hurt, fear of wrongful
restraint.

See s. 382 which punishes theft under similar circumstances.

Procedure : — Cognizable — W arrant — Bailable — Not compoundable — T riable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Of Criminal Trespass.

This branch of the Chapter XVII dealing with the offence of criminal trespass
consists of 22 sections. S. 441 defines 4 criminal trespass ' and the commentary
on that section should always he referred to in using the commentary on the other sec-
tions bearing on ‘ criminal trespass 9 ; s. 442 defines ‘ house- trespass, " 8. 443
defines 4 lurking house-trespass, * s. 444 defines 4 lurking house-trespass by

(c) Faulkner, 13 Cox, c. c. 550.

OF CRIMINAL TRESPASS

867

SEC. 441 ]

night’; s. 445 defines 4 housebreaking s. 446 defines 4 housebreaking by
night ’, s. 447 provides punishment for criminal trespass whereas s. 448 pre-
scribes punishment for ‘house- trespass’; Ss. 449, 450, 451 and 452 provide enhanced
punishment for the offence of 4 house-trespass ’ attendant with aggravating cir-
cumstances, s. 453 provides punishment for 4 lurking house-trespass or house-
breaking ’ and Ss. 454 and 455 for the same offence under aggravating circum-
stances ; s. 456 provides punishment for 4 lurking house-trespass or housebreaking
by night, * Ss 457-460 provide enhanced punishment for the same offence com-
mitted under aggravating circumstances. S. 461 provides punishment for the
offence of dishonestly breaking open receptacle containing property, and s. 462
provides punishment for the same offence when committed by persons entrusted
with custody of such receptacle.

The Authors of the Code observe : “ We have given the name of trespass to
every usurption, however slight, of dominion over property. We do not propose
to make trespass as such an offence, except when it is committed in order to the
commission of some offence injuries to some person interested in the property to
which the trespass is committed, or for the purpose of causing annoyance to such
a person. Even then we propose to visit it with a light punishment, unless it be
attended with aggravating circumstances.

44 These aggravating circumstances are of two sorts ; criminal trespass may
be aggravated by the way in which it is committed. It may also be aggravated by
the end for which it is committed (d).

441. Whoever enters into or upon property in the pos-
r . . , „ session of another with intent to commit an

Ctiminal trespass. ^ . . . i . i

offence or to intimidate, insult or annoy any
person in possession of such property,

or having lawfully entered into or upon such property, un-
lawfully remains there with intent thereby to intimidate, insult or
annoy any such person, or with intent to commit an offence, is
said to commit ‘ criminal trespass/

This section defines ‘ criminal trespass'.

Analogous law : — Under the English law the term is * forcible entry’.

MuIIick, A., C. J., observed in Bandhu Singh's case (e) : “ In England the
Statutes of forcible entry provide punishment for forcible entry ‘ with strong
hand or with multitude of people ’ even when the intruder has a right. They also
make forcible detainer a substantive offence if proceeded by forcible entry. Thirdly
they make forcible detainer after peacable entry an offence; (5 Richard II Ch.
VII, 15 Richard II Ch. II, 8 Henry VI, Ch. IX). In my opinion section 441
of the Indian Penal Code reproduces the English Law.”

Scope : — In order to sustain a conviction under s. 447, it is necessary to prove
as required by this section, not only that the accused entered upon property in the
possession of the complainant, but they did so with intent to commit an offence
or to intimidate, insult, or annoy any person in possession of such property (f).

124.

(d) Note N.

(e) (1927) 6 P. 794 (800) : 29 Cr. L. J. 99 : 106 I. C. 691 : A. I. R. (1928) Pat.

(f) m Akhoy Singh v. Rameschattder Bagdi , (1916) 43 C. 1143 : 20 C t W. N. 107J ;
17 Cr. L. J. 339 ; 35 I. C. 616.

$68 THE INDIAN PENAL CODE [ CHAP. XVII

It is the intention of the accused person that is the deciding factor under s. 441
to constitute an offence (g).

4 Whoever enters into or upon the property in the possession of
another 9 : — Where the wife was convicted of house-trespass for entering the house
of her husband to ask for maintenance, the Madras High Court held that as she
had not been expelled from the house by her husband for any misconduct legally
established, she had a right as a wife to go to the house, and that she could not
be regarded as a trespasser, civil or criminal, and accordingly set aside the convic-
tion and sentence (h).

The entry by a person into premises purchased by him at a sheriff s sale for
the purpose of acquiring possession of the property is not an unlawful entry within
the meaning of this section (i).

In a prosecution under this section it is necessary to determine in whose
possession the property was at the date of the alleged trespass (j).

A man may be guilty of criminal trespass, even if he did not personally set
foot on the land of the complainant, if he got people to build on it in spite of the
protests of the complainant (k).

Landlord and tenant : — A landlord who forcibly enters on the land in the
possession of a tenant after the expiry of the lease and dispossesses him is guilty
of an offence under s. 447, even where the lease gives him the right of re-entry (1).

Property : — The word * property * in this section means fishery but a man
who fishes into a public river does not enter upon property in the possession of
another and cannot be held guilty of criminal trespass (m).

* in the possession of another Jackson, J., held (Markby, J„ dissenting) :
“ I think it was not necessary that the complainant should prove his right to
the property, but that the offence may be committed in respect of property in his
possession even though such possession may not have originated in right ” (n).

The premises in question must be in actual possession of somebody as for
instance, the actual owner, his wife, servant, agent, licensee or other person.
Where the accused enters a house which is empty and locks it up, he is not guilty
under this section (o).

This section does not require the land to be in possession of the com-
plainant (o 1 ).

An intention to intimidate, insult, or annoy any person in possession of a house
does not mean to insult or annoy any person in constructive but in actual possession
of the premises (o 3 ). The ‘possession* contemplated by this section is actual

(g) Safar AH, A. I. R. (1931) Cal. 264: 130 I. C. 600.

(h) In re . Daga BhikaKumbi , (1928) 30 Bom. L. R. 131 : A. I. R. (1928) Bom.

231. <

(h) Marimuttu, (1881) 4 M. 243.

(i) Charoo Chunder Mutty Laut, (1899) 4 C. W. N. 47.

(j) In re Venkatarina Rao , (1917) 18 Cr. L. J. 761 (Mad.) : 41 I. C. 137

(k) Ghasi, (1917) 39 A. 722.

(l) Dwarka Singh v. Ramkishan Singh, (1917) 18 Cr. L. J. 402 : 38 I. C. 962
following Ram Dyal Mundle, 7 W. R. 28 (Cr.).

(m) Charu Nayiah, (1877) 2 C. 354, followed in Bhagiram Dome v. Aber Dome,
(1888) 15 C. 388. See Maya Ram Surma , (1888) 15 C. 402.

(n) Surwan Singh, (1869) 11 W. R. (Cr.) 11.

(o) Motilal v. Kanhaiy dal, (1925) 47 A. 856 : 23 A. L. J. 879.

(01) In re. Daga Bhika Kunbi , (1928) 30 Bom. L. R. 631-A. I. R. (1928) Bom.

231 . «

(02) Isur Chunder Karmakar v. SeeM Das Mitter, (1872) 17 W. R. (Cr.) 47.

SEC. 441 ]

. OF CRIMINAL TRESPASS

869

possession (p). For a conviction under s. 447, the guiding question on the point
as to who was in actual possession of the land in dispute is necessary (q).

Lord Denman, C. J., said : “ A mere trespasser cannot by the very act of
trespass, immediately and without acquiescence, give himself what the law under-
stands by possession against the person whom he ejects, and drive him to produce
his title, if he can without delay reinstate himself in his former possession. Here
by the acquiescence of the plaintiff, the defendants had become peaceably and
lawfully possessed as against him. He had re-entered by a trespass, he certainly
could not have made out a plea denying their possession " (r).

The possession contemplated under this section is actual physical possession
and is not merely a power of control such as the trust scheme vests in the trustee (s).

The view in Nga Po Tak (t) where it was held that it is not necessary to
restrict the meaning of the word * possession * to actual physical possession does not
seem to be correct. Possession includes symbolical possession (u). Whether the
charge is made under s. 441 or s. 442 the prosecution must prove that the property
trespassed upon was at the time in the possession of the complainant and that
the accused entered into the property with either of the intents specified in this
section (v).

Any person in possession : — This expression in this section does not mean
‘ the complainant in possession * and there is no authority for taking the offence
of mischief and criminal trespass out of the geneal rule which allows any person to
complain of a criminal act. The decision in Chandi Prasad , (22 C. 123) is not an
authority for the proposition that prosecution under s. 448 can be instituted only
by the person in possession (w). The offence under this section is complete even
when the person in actual possession of the property is absent (x).

Joint possession : — One member of a joint family commits no trespass by
entering the house, which was the joint property of himself and the complainant
(y). The Allahabad High Court, on the other hand, has held that a joint owner of land
who enters upon the land with the intention or knowledge that he was about to do
an act which was wrongful to his fellow owners does commit criminal trespass (z).
Where the accused as co-owners were in possession, and unless they had ousted
the complainant from possession, which was not asserted, or had committed some
destruction or waste of the common ptoperty as by pulling down a common wall, or
by carrying away a portion of the common property as by digging and carrying
away turf, it was held that they were not guilty of criminal trespass (a). Where
one co-sharer built upon a piece of common land against the will of the other co-
sharer, whose consent had been previously asked for and was refused, the Allaha-

(p) KunjaLal , (1913) 12 A. L. J. 151 : 14 Cr. L. J. 633: 21 I. C. 681.

(q) Jagan Dubey, 19 Cr. L. J. 629 : 45 I. C. 677 (Pat.).

(r) Brown v. Dawson , 12 A. and E. 624.

(s) Tok Gyi, (1916) 8 L. B. R. 425 : 10 Bur. L. T. 77 : 17 Cr. L. J. 378 : 35

I. C. 810.

(t) (1918) 3 U. B. R. Ill : 20 Cr. L. J. 115 : 49 I. C. 99.

(u) In re . Doga Bhika Kunbi, (1928) 30 Bom. L. R. 631 : A. I. R. (1928) Bom.

221

(v) Chandi Prasad , (1894) 22 C. 123 ; Kalinath Nag Chaudhury, (1867) 9 W. R.

(Cr.) 1 ; Ishur Chandra Karmakar v. Sited Das Mitter, (1872) 17 W. R. (Cr.) 47 ;

Motilalv. Kanhaiyalal, (1925) 47 A. 855 : 23 A. L. J. 679.

(w) Prayag Singh v, NLorgan > (1920) 33 C. L. J. 118: 25 C. W. N. 425: 22

Cr. L, J. 494: 62 I. C. 190, following Keshevlal, 21 B. 536 and Ganesh Sathe , 13 B.

600 .

China Venkateswam v. Pedda Kisammal, (1931) M. W. N. 182.

In re . Pranhristo Chandar, (1871) 15 W. R. (Cr.) 0.

Ram Prasad, (191)) 33 A. 773 : 8 A. L. J. 927 : 12 Cr. L. J. 532 : 12 I. C.

300. ' '•

(a) Khaja Mahomed, (1881) 3 M. 178. ,

870

THE INDIAN PENAL CODE

[CHAP. XVII

bad High Court held that this circumstance alone was not sufficient to warrant a
conclusion that the accused were acting unlawfully when they remained on the
plot of land of the co-sharer and set aside the conviction for criminal trespass (b).

Lawfully entering into or upon such property unlawfully remains
there Merely unlawfully remaining after lawful entry is no offence ; criminal
intent must be proved under this clause as in clause (I) of this section.

If a guest who was invited to an entertainment were to attempt to commit
theft, this act would be an unlawful remaining in the house with intent to commit
an offence, or to intimidate , insult or annoy any person in possession of such
property (c).

Each time the true owner goes upon the land or makes a claim under circums-
tances sufficient in law to constitute re-entry and the trespasser opposes him with
the intention required by section 441, a new offence under that section is com-
mitted, and a new liability arises (d).

* with intent to commit an offence property * To sustain a

conviction under s. 447, it is necessary to prove, as required by s. 441 , not only that
the accused entered upon the property in the possession of the complainant, but
they did so with intent to commit an offence or to intimidate , insult or annoy any
person in possession of such property (e). The Madras High Court has held that an
act is not criminal trespass unless it is done with one of the intents mentioned in
this section (f). Criminal trespass depends on the intention of the offender and not
upon the nature of the act, and when a man's intention is to save his family and
property from imminent destruction, it cannot be said that because he commits
civil trespass on his neighbour’s land and cuts a portion of his neighbour’s property
which he ordinarily would not be justified in doing, he is guilty of any criminal
offence (g). The essence of the offence of criminal trespass is the intent in com-
mitting trespass (h).

Where the accused secretly entered an exhibition building without having
purchased a ticket, and was there apprehended, the Bombay High Court held that
such entry without any of the intents specified in this section does not amount to
criminal trespass (i). Where the accused broke open into a house during the
owner’s absence, assaulted his servants and took forcible possession of it with the
object of establishing their title to the house, the Madras High Court held that
when an act is done with a knowledge amounting to a practical certainty that a
result will follow, the doer of the act must be deemed to have intended to cause that
result (j). A tenant died and thereupon the zemindars took possession of his
house on the ground that they were entitled to do so. The tenants widow finding
the house in the possession of the accused instituted criminal proceedings against
them and the Magistrate convicted the accused under s. 448. The Allahabad
High Court held that the accused were not guilty as they had no intention to com-
mit an offence, or to intimidate, insult or annoy any one, since they asserted a right
to the possession of the property (k).

(b) Ram S&rup , (1914) 30 A. 474 : 12 A. L. J. 790: 15Cr.L.J. 584 : 25 I. C. 330.

(c) Kayakool Natavabpurayit Moidin Kutti V. Pottar Kular Roman Naif , 23
M. L. J. 618 : 12 M. L. T. 538 : 17 I. C. 005.

(d) Bandhu Singh, (1927) 0 P. 794 (800).

(e) Akshoy Singh v. Rameswar Bagdi, (1910) 43 C. 1143 : 20 C. W. N. 1071 :
17 Cr. L. J. 339 : 35 I. C. 515.

(f) In the matter of Jotharam Davay, (1878) 2 M. 30 (33).

(g) Madan Mandat, (1913) 41 C. 602. *

(h) Rehana and Tanji, (1923) 5 L. 20.

(i) Meherwanji Bejanji , (1869) 6 Bom. H. C. R. (Cr. C.) 0. »

(j) Sellamuthu v. Pallamuthu, (1912) 35 M. 186 : 21 M. L. J. 101 : 9 M. L. T.

283 : 12 Cr. L. J . 30 : 9 L C. 152, followed in in re Somadurai Mudaliar, 19 Ci. L. J.
117: 43 1. C. 405. -

(k) Bazid, (1904) 27 A. 298, follojving Jangi Singh, (1903) 20 A. 194.

SEC. 441 ]

OF CRIMINAL TRESPASS

871

It does not follow that when the entry upon property is itself illegal, that is
sufficient to establish one of the criminal intents required by this section. The
intent with which the act is done must be established by clear and convincing evi-
dence of such character and description as the particular nature of the case requires (I).

Where a person is found in the house of another in circumstances which would
prime facie indicate that the offence of criminal trespass as defined in this section
had been committed, and sets up the defence that he did not enter the house with
any of the intents specified in the section, but in pursuance of an intrigue with a
female living there, it is the duty of the trying Court to give the accused an oppor-
tunity of substantiating the defence (m). Where the accused No. 1, who held a
decree against a certain judgment-debtor, went with his son, accused No. 2, and a
civil Court bailiff to execute the warrant, and finding the door of the house of the
judgment-debtor shut, they entered his compound by passing through the com-
plainant s house without his consent and notwithstanding his protest, the Bombay
High Court held that the accused’s act amounted to criminal trespass (n).

A Full Bench decision of the Madras High Court has held a contrary view , viz.,
that the legislator did not intend that in this section doing the act with a
knowledge of its consequences should be punishable (o). The Patna High
Court in Mohammed Nasiruddin s case (p) has followed the above Full Bench
decision.

Intention to annoy : — To bring an act of trespass within the meaing of s. 441 ,
the entry upon the land must be * with intent to annoy which means, with the
purpose of annoying the person in possession of the property (q).

Where complainant leased a portion of his lands to certain tenants for the
purpose of making bricks, and the defendants entered on such land with an intent
to annoy the complainant, it was held that conviction under this section was wrong (r).

An accused person obstructing the person who has title by going upon the
land and obstructing the tenant in cultivation of the field is guilty of trespass as the
natural consequence would be to annoy the tenant (s).

Where, with a view to attach the property of his judgment-debtor, a decree-
holder enters the property of a third person, his act would be criminal trespass,
even though his primary object may npt have been to cause annoyance (t).

Intention to intimidate An entry on land in another man s possession,
in order to assert a right in the land is not sufficient to bring the conduct of the
accused within the definition of criminal trespass (u).

Intention to commit an offence : — If such is the intent, it must be an offence
punishable under the Code, or an offence punishable under any special or local law
with imprisonment for six months or upwards (v).

(l) In the matter of Govind Prasad, (1879) 2 A. 465 (467).

(m) Chottilal , (1917) 40 A. 221 : 16 A. L. J. 153 : 20 Cr. L. J. 119 : 49 1. C.

103, following Luxman Raghunath, (1902) 26 B. 558.

(n) Lukshman Raghunath, (1902) 26 B. 558: 4 Bom. L. R. 280.

(o Vulappa Bheema Row, (1917) 41 M. 156 (F. B.), following Rayapadayachi,

(1896) 19 M. 240 and differing from Sellamuthu Servaigreen v. Pallamuthu Karuppau ,
(1912) 35 M. 186 and Lakshman , (1902) 26 B. 558.

jqi Shibnath, (1875) 24 W. R. (Cr.) 56 ; Shambhu Nathv. Ramkamal 13 C. L. R.
212, see Prayag Singh v. Morgan, (1920) 33 C. L. J. 118: 25 C. W. N. 425.

(r) Muninda Pillai, (1882) 1 Weir 517.

(s) In re. Doga Biha Kumbi, (1928) 30 Bom. L. R. 631.

(ti LakshmiDas, (1919) 4 L. L. J. 532 : 24 Cr. L J.i 329 : 73 I. C. 527.

(uj Amavasya Chinna Krishna Reddy v. Mam Polhah, (1912) M. W, N
13 Cr. L: J. 477 : 15 I. C. 8ll
(v) S. 40 clause 3, supra.

395

872

THE INDIAN PENAL CODE

[ CHAP. XVII

Where one lawfully seized a cow belonging to the accused and had it impound-
ed in the cattle-pound and thereafter the accused proceeded to the cattle-pound,
opened the lock, entered the pound and drove off the cow after slightly injuring
the chaukidar who attempted to prevent him, held , accused was guilty under
s. 447 (w).

Where the defendant was convicted under s. 447 for cultivating village waste
land which he had been ordered by the subordinate collector to refrain from
cultivating, the High Court of Madras upheld the conviction as there was evidence
of the defendant having entered upon the land with the intent to commit an
offence (x).

An act is not criminal trespass unless it is done with one of the intents men-
tioned in this section, viz., the intent to commit an offence or to intimidate, insult,
or annoy any person in possession of the property in respect of which the criminal
trespass is alleged (y).

Although the original entry may not have been unlawful, if the accused unlaw-
fully remained there and then committed an offence, he would be guilty of criminal
trespass (z).

Where a constable entered upon the accused’s dwelling house and knocked
at his door at midnight with the intention of finding out whether the accused, who
was regarded as a suspected character by the police, was in his house, the Madras
High Court held that the constable was technically guilty of house-trespass under
s. 442 (a).

Intention to commit adultery Where it was not proved that the accused
entered the house with the intention of committing an offence, and that the inten-
tion with which he went to S’s house, namely, to carry on intrigue with his sister,
even when discovered, cannot be said to have caused such annoyance or insult as is
contemplated by this section (b), Where on a charge under s. 457 it was found
that the accused entered the complainant’s house in order to commit adultery with
his wife and it was further proved that the accused did so without the husband’s
consent, the accused was convicted under s. 457. The Allahabad High Court
declined to interfere although the allegation i«& the petition of complainant was that
the accused entered the house to commit theft (c). Where the accused in the
middle of the night entered the house of the complainant while she was asleep, was
caught, but ultimately ran away and was convicted under s. 456, the Calcutta High
Court held that such entry was in order to commit an offence (d).

What is the intention of the accused to be inferred in such circumstances, is
answered by Hill, J., as follows : — M What we have then to deal with is a case of
man, a stranger, who uninvited and without any right whatever to be there, effects
an entry in the middle of the night into the sleeping apartment of two women,
members of a respectable household, and who, when an attempt is made to capture
him uses great violence in the effort to make good his escape. Under such circum*

(w) Bhola, (1927) 8 L. 331. ~~~

(x) (1870) 5 M. H. C. R. (App.) 17.

(y) Jonathan Davay, (1878) 2 M. 30 (33).

(z) Bashikachari, 1 Weir 528. #

(a) Doyaswami PiUai , (1903) 27 M. 52.

(b) Gya Bhar, (1916) 38 A. 517, dissenting from Jiwan Singh t (1908) P. R. No. 54
of 1908 and following Rayapadayachavi , (1895) 19 M. 240 ; SulemanA\%2Q) 27 P. L. R.
385 : 27 Cr. L. J. 1015 : A. I. R. (1926) Lah. 600.

(c) Kangla t (1900) 23 A. 82; Brij Basi, (1890) 19, A. 74; Ram Saran*(l906)

P. R. No. 12 of 1900; Mulla, (1915) 37 A. 395. . x

(d) Karali Prasad Guru , (1910) 4* C. 328 : 20 C. W, N. 1075. *

SEC. 441 ]

OF CRIMINAL TRESPASS

873

stances, we think the Court ought to presume that the entry was effected with an
intent such as is provided for by s. 441 “ (e).

Walsh, J., held: “There is no conflict between the reported cases, and I
venture to sum up the result of them in this way. They come to this, that if there
is an invitation, or complicity by the woman, combined with an intention to preserve
strict secrecy, then it is difficult to say that there is any intention to annoy a third
person, but if that third person has expressly prohibited the accused, then his act
becomes a direct defiance of an express order, and it is impossible to say that you
cannot infer from it an intention to annoy the author of the order ” (f).

The Nagpur Judicial Commissioner's Court held that a person would be
guilty of criminal trespass when he enters the premises of his neighbour with
intent to commit adultery with the neighbour's wife (g).

Where the accused was found inside the house of the complainant at midnight,
and his presence was discovered by the wife of the complainant crying out that a
thief was taking away her hansli, the Allahabad High Court held that a guilty in-
tention as mentioned in this section was proved and declined to interfere with the
conviction under s. 456 (h).

Distinction between 4 intention 9 and * knowledge 9 An accused person
though he may have known that, if discovered, his act would be likely to cause
annoyance to the owner of the house, cannot be said to have intended either ac-
tually or constructively to cause such annoyance. This section defining 4 criminal
trespass ' is so worded as to show that the act must be done with intent, and does
not as other sections do (e.g., s. 425) embrace the case of an act done with the
knowledge of the likelihood of a given consequence (i). This case and the authori-
ties on the subject have been discussed in the Full Bench decision in Vullappa v.
Bheema Row (j).

Bona fide intention or bona fide claim of right s — It is well-settled that
if a person enters on land in the possession of another in the exercise of a bona fide
claim of right without intention to intimidate, insult, or annoy the person in posses-
sion or to commit an offence, then although he may have no right to the land, he
cannot be convicted of criminal trespass (k). If the accused entertained the belief
in good faith that he was entitled tcuthe possession of the land, his entry and conti-
nuance on it would constitute a trespass on the land for which he would, if he
failed to prove his title, be answerable in a civil suit, but would not be liable to a
criminal charge (1). Where it was found that the complainant was all along in pos-
session of a plot of land and the accused forcibly ploughed up the paddy seedling

(e) Kailash Chandra, (1889) 16 C. 657, Premanando v. Brindaban, (1894) 22 C.
391 ; Balmukund v. Ghansyamram, (1895) 22 C. 994 ; Samban, 1 Weir 553 ; Dixon ,
(1814) 3 M. and S. 11 (15) cited by Mookerji, J., in Karali Prasad Guru, (1916) 44 C.
328 : 20 C. W. N. 1075 (1079).

(f) Chotelal, (1918) 40 A. 221 (225) : 16 A. L. J. 153 : 20 Cr. L. J. 119 (121) :
49 I. C. 103 distinguishing Gaya Bhar, (1916) 38 A. 517 ; Mula, (1915) 37 A. 395,
and Balmukund v. Ghansamram , (1894) 22 C. 391 ; Premanado Shah , (1895) 22 C.
391.

(g) Dhantue Lodhi, (1915) 19 Cr. L. J. 881: 47 I. C. 77 (Nag.); Lakstnan
Raghunath, (1902) 26 B. 558 and Rayapadayachi, (1896) 19 M. 240.

(h) Ishri, (1906) 29 A. 46, following Balmakund Ram v. Ghansamram , (1894)
22 C. 391 and distinguishing Brijbasi, (1896) 19 A. 74.

(i) Rayapadayachi, (1895) 19 M. 240.

(j) (1927) 41 M. 156 (F. B.).

(k) Per Mookerji, J., in Akshoy Singh v. Rameswar Bagdi, (1916) 43 C. 1143 :
20 C. W. N. 1071 (7510), following Budh Singh, (1879) 2 A. 101 ; Shistidhar, (1872)
9 B. L. R. App. 19 ; JuruKhan , (1907) 7 C. L. J. 238 ; see also In re Gobind Prasad,
(1879) 2 A. 466; Ram'Dayal, (1807) 7 W. R. (Cr.) 28; Kalinath, (1868) 9 W. R.
(Cr.) 1 ; Sambhunath v. Ramhamal, 13 C. L. R. 212.

(l) Devaresatti Gangaiya, (1884) 1 Weir 516.

874

THE INDIAN PENAL CODE

[ CHAP* XVII

grown by the complainant on the land and the Magistrate convicted the accused
under Ss. 447 and 426, the Calcutta High Court upheld the conviction, although
the accused set up a title to the land (m). Where the accused persons, execution
creditors, in company with an authorised bailiff, broke open the complainant’s door
before sunrise with intent to distrain property for which they were convicted under
s. 456, the Madras High Court held that the accused were not guilty of criminal
trespass and accordingly quashed the conviction (n).

If a person enters into land in the possession of another in the exercise of a
bona fide claim of right but without any intention referred to in this section, he
cannot be convicted of criminal trespass, although he may have no right to the
land (o). Where there was a dispute as to the title to the land and all that was
proved was that the complainant was in possession of the pathway for six months,
the question of title to the land having been left undetermined, it was held that
the accused could not be convicted under $. 447 (p).

Criminal trespass— when complete Mere entry upon the land by
the accused with the intention of preventing the complainant’s party from harvesting
the crops grown by the accused does not amount to an offence under s. 447 (q).

The fact that accused was absent when possession was given to the auction-
purchaser by the Court did not prevent the possession being of any validity against
him, nor does prior long possession of the land by the accused and his predecessors-
in-title affect the possession of the auction-purchaser (q). In Daga Bhika's case (q)
the case of Gobind Prosad (r) was distinguished as it was held in that case that the
accused was justified in protesting that what he had done had been done with the
object of asserting his rights or the rights of his co-sharers.

House -trespass.

442. Whoever commits criminal trespass by entering into
or remaining in any building, tent or vessel
used as a human dwelling, or any building
used as a place for worship, or as a place for the custody of property,
is said to commit ‘ house-trespass.’

Explanation . — The introduction of any part of the criminal
trespasser’s body is entering sufficient <o constitute house-trespass.

Criminal trespass — s. 441. Vessel — s. 48.

The Authors of the Code observe : " There is no sort of property which it
is so desirable to guard against unlawful intrusion as the habitations in which men
reside, and the buildings in which they keep their goods. The offence of tres-
passing on these places we designate as house-trespass, and we treat it as an aggra-
vated form of criminal trespass ” (s).

Building : — There is no principle nor authority for including ‘ compounds ’
within the words ‘ house * or ‘ building used as a human dwelling ’ (t).

(m) Chdkoo Mondul, (1906) 11 C. W. N. 467; Jhamuk Naniah v. Shadashib
Roy, (1881) 7 C. 20.

(n) In re Jotharcm Davay , (1876) 2 M. 30.

(o) Budh Singh, 2 A. 101, followed in Abdul Lathi/, (1911) 5 S. L. R. 136:
13 Cr L. J. 27 : 13 I. C. 219.

(p) Robi Lochan v. Puma Chandra Bey, (1906) 11 C. W. N. 171.

(q) Appandanatha Nainer, (1916) M. W. N. 275: 16 Cr. L. J. 271 : 28 I. C.

159.

(q) In re Daga Bhika Kunbi, (1928) 30 Bom. L. R. 631 : A. I. R. (1928) Bom.

201 .

* (r) (1879) 2 A. 463.

(s) Note N. *

(tj Rama, (1889) Rat. Unrep. Cr. Of 484.

OF CRIMINAL TRESPASS

875

SEC. 442 ]

Where except for a few thorns the place was open with no roof above and the
£ thorns were merely put down to indicate the extent of the courtyard and not to
prevent entry, held , such a place is not a building and the conviction under s. 452
was set aside (u). The expression ' building * in S$. 380 and 454 must be regarded
£as indicating some structure intended for affording some sort of protection to the
person dwelling inside it or for the property placed there for custody. Any
structure which does not afford any such protection by itself but merely serves as a
[finding or other means of merely preventing ingress or egress cannot make the
place of either of these two sections (v).

A mere enclosure may not form part of building, but where in a Vara* an un-
roofed enclosure which is surrounded on all four sides by a wall, entrance and exit
are effected through a small gate, held , it is a building within the meaning of this
section (w). A thatch hut built for residence is a building used as a human dwelling
within the meaning of this section (x).

Not a building : — Davies, J., held : “ The mere surrounding of an open
space of ground by a wall or fence of any kind, could not by any stretch of imagina*
tion be deemed to convert the open space itself into a building ” (y).

A courtyard enclosed by low walls on three sides only is not a building (z).

A courtyard surrounded by a mud wall without roof or door or gate-way is
not a building (a).

A brake-van is neither a building nor a tent nor a vessel (b).

What entry is sufficient to constitute an offence:— The explanation
says : “ The introduction of any part of the criminal trespassers body is entering
sufficient to constitute house-trespass.” *

The mere putting of a hand into a hole in the wall without putting it through
the hole is not an entry into the house within the meaning of this section (c).

Where the accused removed the trap-door, they were held guilty of attempt to
commit the offence (d).

Mere entry is not sufficient— Criminal intent as set out in s. 441 is
necessary : — A person who enters into the house of another secretly, in order to
carry on an intrigue with a widow in the house, is not guilty of criminal trespass
where it was found that it was not 1 in fact the intention of the accused when he
entered the house that his entry should be discovered or should cause annoyance (e).

Where during the absence of the complainant, the accused took possession of
the house in her occupation and established there a boy alleged to be the adopted
son of the complainant’s father, the Calcutta High Court held that the case is one,
not of criminal but of civil trespass (f).

(u) Munshi , (1928) 26 A. L. J. 856: A. I. R. (1928) All. 607 (1).

(v) In re Lakshmana Goundan, (1926) 52 M. L. J. 143 : 28 Cr. L. J. 248 : 100
I. C. 120 : A. I. R. (1927) Mad. 343.

(w) Ismail Khan, (1926) 6 L. 463 : 20 P. L. R. 719 : 27 Cr.*L. J. 38 : A. I. R.
(1926) Lah. 28.

(x) Salig Ram , 3 O. L. J. 493 : 17 Cr. L. J. 536 : 36 I. C. 584.

(y) Palani Goundan , (1896) 1 Weir 523.

(z) Mulan Chand , (1924) 6 L. L. J. 678 : 84 I. C. 863 : A. I. R. (1925) Lah.
279

(a) Sunder, (1918) P. W. R. No. 11 of 1919 (Cr.) : 20 Cr. L. J. 240 : 49 I. C.

804. •

(b) l Weir 430.

(c) Ghulam, (1923) 4 L. 399 : 25 Cr. L. J. 398 : 77 I. C. 440 : A. I. R. (1923)
Lah. 509.

(d) Narshi, (1883) Rat. Unrep. Cr. C. 188.

(e) Arnbika Chartin' Sarker, (1900) 4 C. L. J, 109 where Balmukand Ram v.
Ghansamram, (1894) 22 C. 391 was distinguished.

(f) Soita Biswai Dochi Stri, (1907) 12* C. W. N, 209.

876

THE INDIAN PENAL CODE [CHAP. XVII

it. '

Decree-holder attaching the property * of a third person ottering the
enclosed yard is guilty : — Where with a view to attach the property of the
judgment-debtor, a decree-holder enters the premises of a third person without
having any right to do so, his act amounts to an invasion of the privacy of the house-
hold of that person which would necessarily cause him great annoyance and his act
would come within the definition of s. 441 (g).

The case of a trespasser entering into a house in order to carry on intrigue
with a female occupant of the house has been dealt with in commentary on s. 441
under the heading ‘ Intention to commit adultery.’

For further commentary see s. 441.

443. Whoever commits house -trespass having taken pre-
cautions to conceal such house-trespass from
some person who has a right to exclude or
eject the trespasser from the building, tent
or vessel which is the subject of the trespass, is said to commit
“lurking house-trespass.”

Lurking-house tres
pass.

This section defines ' lurking house-trespass/ Where the house-trespass is
committed in a surreptitious manner, the offence is called * lurking house- trespass/

So the Authors of the Code observe : M House-trespass, again, may be aggra-
vated by being committed in a surreptitious or in a violent manner. The former
aggravated form of house-trespass we designate as lurking house-trespass ; the latter,
we designate as housebreaking. Again, house-trespass, in every form, may be
aggravated by the time at which it is committed. Trespass of this sort has, for
obvious reasons, always been considered as a more serious offence when committed
by night than when committed by day. Thus we have four aggravated forms of
that sort of criminal trespass, which we designate as house-trespass, lurking house-
trespass, house-breaking, lurking house-trespass by night, and housebreaking by
night. These are aggravations arising from the way in which the criminal trespass
is committed. But criminal trespass may also be aggravated by the end for which it
is committed. It may be committed for a frolic. It may be committed in order to
commit a murder. It may also often happen tljat a criminal trespass which is venial,
as respect the mode, may be of the greatest enormity as respects the ends ; and that
a criminal trespass committed in the most reprehensible mode, may be committed
for an end of no great atrocity. Thus A may commit housebreaking by night
for the purpose of playing some idle trick on the inmate of a dwelling, B may
commit simple criminal trespass by merely entering another’s field for the purpose
of murder or gang-robbery. Here A commits trespass in the worst way, B commits
trespass with the worst object.' _ In our provisions we have endeavoured to combine
the aggravating circumstances in such a way that each may have its due effect in
settling the punishment” (h).

Lurking house-trespass : — Where a Magistrate convicted a wife of house-
trefpass for entering the house of her husband to ask for maintenance the wife having
been excommunicated by her caste for alleged misconduct, the Madras High Court
held that the wife had a right as a wife to go to the house, and that as she
had, and had never been deprived of, joint enjoyment, she cofild not be regarded
as a trespasser, civil or criminal, and set aside the conviction (i).

(g) Lakshmi Das, (1900) 4 L. L. J. 532 : 24 Cr. L. J. 639: 73 I. C. 527 where

Akshoy Singh, (1916) 43 C. 1143 : 20 C. W. N. 1071 : 17 Cr. L. J. 839 : 35 I. C. 015
was distinguished and Bhikam Singh, (1917) 15 A. L. j. 808 : 10 Cr. L. J. 46 : 42
I, C, 1008, was not followed* ’ .

(h) Note M. *

(i) Marimattu, (1881) 4 M. 243, *

SEC. 444-45 ]

OF CRIMINAL TRESPASS

877

The Allahabad High Court hit held that a person who gets on the roof of
another's house does enter into the 'building within the meaning of the definition
in this section and he might be convicted under s. 454 of the Code (j).

444 . Whoever commits lurking house-trespass after sunset
Lurking house-tres- and before sunrise, is said to commit “ lurking

pass by night. house-trespass by night.”

Criminal trespass — s. 441. House-trespass — s. 442.

Lurking House-trespass — s. 443.

This offence is the same as defined in the preceding section * lurking house-
trespass* when committed after sunset and before sunrise amounts to an
offence under this section.

445 . A person is said to commit " house-breaking ” who

commits house-trespass if he effects his
„ ... entrance into the house or any part of it in

House-breaking. r . . , f i *ii

any or the six ways hereinafter described ; or
if, being in the house or any part of it for the
purpose of committing an offence or having committed an offence
therein, he quits the house or any part of it in any of such six
ways, that it to say : —

First. — If he enters or quits through a passage made by
himself, or by any abettor of the house-trespass,’ in order
to the committing of the house-trespass.

Secondly. — If he enters or quits through any passage not
intended by any person, other than himself or an abettor
of the offence, for human entrance ; or through any
passage to which he has obtained access by scaling or
climbing over any wall or building.

Thirdly. — If he enters »or quits through any passage which
he or any abettor of the house-trespass Has opened, in
order to the committing of the house-trespass by any
means by which that passage was not intended by the
occupier of the house to be opened.

Fourthly. — If he enters or quits by opening any lock in order
*• to the committing of the house-trespass, or in order to
the quitting of the house after a house-trespass.

Fifthly '. — If he effects his entrance or departure by using
criminal force or committing an assault, or by threaten-
ing any person with assault.

Sixthly. — *If he enters or quits by any passage which he
knows to have been fastened against such entrance to
departure, and to have been unfastened by himself
or by an abettor of the house-trespass.

(j) Mullua, (1900) A.’ W. N. 1611(152).

878 THE INDIAN PENAL CODE [ CHAP. XVII

Explanation . — Any out-house or building occupied with
a house and between which and such house there is an immediate
internal communication, is part of the house within the meaning
of this section.

Illustrations .

(а) A commits house-trespass by making a hole through the wall of Z’s house
and putting his hand through the aperture. This is housebreaking.

(б) A commits house-trespass by creeping into a ship at a port-hole between
decks. This is housebreaking.

(c) A commits house-trespass by entering Z’s house through a window. This
is housebreaking.

( d ) A commits house-trespass by entering Z’s house through the door, having
opened a door which was fastened. This is housebreaking.

(e) A commits house-trespass by entering Z’s house through the door, having
lifted a latch by putting a wire through a hole in the door. This is housebreaking.

(/) A finds the key of Z’s house door, which Z had lost, and commits house-
trespass by entering Z’s house, having opened the door with that key. This is house-
breaking.

(g) Z is standing in his doorway. A forces a passage by knocking Z down,
and commits house-trespass by entering the house. This is housebreaking.

(h) Z , the doorkeeper of Y, is standing in Y’s doorway. A commits house-
trespass by entering the house, having deterred Z from opposing him by threatening
to beat him. This is housebreaking.

This section defines ‘ housebreaking/ It is an aggravated form of house-
trespass and is committed in a violent manner as contrasted with * lurking house-
trespass * which is always committed in a surreptitious manner.

This section mentions six ways of breaking a house but on a careful analysis
the section may be divided into two heads : (a) clauses 1 to 3 being those in which
the entry is effected by a passage not ordinarily used by the owner of the house, and
(i) clauses 4 to 6 dealing with entry by force. *

Illustrations (a), (A) and (c) are examples of cl. (a) and the remaining illustra-
tions are examples of the second sub-head.

Where the prisoner was proved to have broken a gla^s-pane, and to have
inserted a knife, with which he pushed back the window-fastener, Alderson, B.,
held that the entry proved was sufficient, but there was no evidence of the intent
laid in the indictment and * it is the immediate intent, with which the entry is
effected, that is the material one, and not a remote intent having no connetion with
that entry ’ and directed an acquittal (k).

Clause 1 The first clause deals with cases of actual breaking into the house.
Illustration (a) is an example of this clause.

Where the prisoner broke the glass of prosecutor’s side door on the Friday
night, with intent to enter at a future time, and actually entered oh the Sunday night,
the Judges held this to be burglary, the breaking and entering being both by night
and the breaking being with intent afterwards to enter (1). Where it was proved
as to the breaking that the glass of the window had been cut about a month

(k) Tucker , (1844) 1 Cox. 73.

(l) John Smith , , (1820) R. and R. 417.

SECS. 446-47]

OF CRIMINAL TRESPASS

879

before, but that every portion of the glass remained in its place till the prisoner
pushed it in and stole the goods, it was held to be * housebreaking * (m).

Clause 2 : — Illustration ( b ) is an example of this clause.

Effecting entrance into a house at night by scaling a wall, constitutes house-
breaking by night under this section (n).

Clause 3 : — Getting into the chimney of a house is a sufficient breaking and
entering to constitute burglary, though the party does not enter any of the *rooms
of the house (o). So also it has been held that pulling down the sash of a window
is a breaking, though it has no fastening, and is only kept in its place by the pulley
weight and it is equally a breaking, although there is an outer shutter which is not
put to (p). Where a window opens upon hinges, and is fastened by a wedge, so
that pushing against it will open it, forcing it open by pushing against it is sufficient
to constitute a breaking (q). Lifting the flap of a cellar usually kept down by its
weight, is a sufficient breaking for the purpose of burglary (r).

Illustration (c) is an example of this clause.

Clause 4 : — This clause deals with ingress and egress by the offender when
he opens any lock in order to the committing of the house- trespass.

Clause 5 : — This clause refers to ingress or egress by the person committing
house-trespass when he effects his entrance or departure by force, criminal force,
assault or threat of assult.

Clause 6 : — This clause refers to ingress or egress when the passage is
forced open or pushed open or unfastened.

Raising a window which is shut down close, but not fastened, though it has a
hasp which might have been fastened, is a breaking of the dwelling house (s).

The term ‘ fastened * implies something more than is closed such as chaining
the shutters or tying them with a rope or bolting them or locking the door. An
entry of an accused into a house by merely pushing in shutters of the door does not
constitute the offence of housebreaking (t).

Illustration (a) : — When a hole is made by the burglars in the wall of their
house but their way is blocked by the presence of beams on the other side of the
wall the offence committed is one jf attempt to commit housebreaking and not
actual housebreaking and illustration (a) does not apply (u).

446* Whoever commits house-breaking after sunset and
House-breaking by before sunrise, is said to commit ** house-
night - breaking by night.”

447. Whoever commits criminal trespass shall be punished
„ . u , with imprisonment of either description for a

minai trespass. term which may extend to tryee months, or

with fine which may extend to five hundred
rupees, or with both.

(m) Bird, (1839) 9 C. and P. 44. ~

(n) Emdad Ally , 2 W. R. (Cr.) 65.

(o) William Brice, (1821) R. and R. 450.

(p) William Haines, (1821) R. and R. 451,

(q) Samuel Hall, (1818) R. and R, 355.

(r) George Russel, (1833) 1 Mood.,C. C. 377.

(s) Hyams, (1836) 7 C. and P. 441,

(t) Ledga, (1921) 23 # Cr 3 L. J 278 ; 66 I. C. 422 (N. Y.L

(u) Ghulam (1928) 4 L 399.

880 THE INDIAN PENAL CODE [CHAP. XVII

This section provides punishment for the offence of criminal trespass defined
in s. 441. .

For commentary see notes under s. 441, supra .

Scope : — It is essential to the validity of a conviction under this section that
the Court should find the offence to have been committed with one or at her of the
intentions mentioned in s. 441 (v).

Procedure : — Cognizable — Summons— Bailable — Compoundable— Triable by
any Magistrate — Triable summarily.

The prosecution must affirmatively and positively prove

(1) That the complainant was in possession of the land in dispute with respect
to which criminal trespass is said to have been committed (w).

(2) That the accused unlawfully entered into or upon the property in question
or having lawfully entered into such property unlawfully remained there.

(3) That he unlawfully entered there, or lawfully entering unlawfully remained
therewith intent either (a) to commit an offence or (A) to intimidate, insult or
annoy the person in possession.

The main ingredient of s. 447 is that the trespass must be with the intention
of annoying or insulting some one, or must be with the intention of committing
an offence (x).

Such * intent * must be found , and must not be left to inference (y).

The Court may presume from circumstances that the entry was effected with
an intent such as is provided for by s. 441, supra (z).

A Magistrate ought not to decline to go into a case of criminal trespass, be-
cause the complainant did not make out his title (a).

The Magistrate in such a case should look to possession only, and if one person
forcibly enters upon property in the possession of another, and there does an act
with intent to annoy the person so in possession, he is guilty of an offence specified
in s. 441 without reference to the question in whom the title to the land may ulti-
mately be found (b).

Accused anticipating defence : — Practice condemned : — The practice
of accused persons before they are charged and put upon their defence anticipating
their defence by petitions on which the trial Court passes written orders is mis-
conceived (c).

It is well-settled that if a person enters on land in the possession of another
in the exercise of a bona fide claim of right without intention as specified in 8. 441 ,

(v) Mathura Rai, (1928) 60 A. 637, following Jangi Singh, (1903) 26 A. 194.

(w) Parameshwar hall Mitter, (1921) 3 Pat. L. T. 347 : 23 Cr. L. J. 440 : 67
I. C. 610 ; Kalinath Naug Chaudhury , (1867) 9 W. R. (Cr.) 1.

(x) Damoder Das, (1920) 3 Pat. L. T. 499 : 23 Cr. L. J. 94 : 66 I. C. 443 :

A. I. R. (1923) P. 66; Akshoy Singh v. Rameswar Bagdi , (1916) 43 C. 1143: 20

C. W. N. 1071 : 17 Cr. L. J. 339 : 36 I. C. 616.

(y) Durgaiya , (1882) 1 Weir 624 ; Meajan v, Sharufutulla Khan , (1912) 16
C. W. N. 1007 ; Ariff Munshi , (1913) 18 C. W. N. 992.

(z) Kailash Chandra , (1881) 16 C. 667 ; Premanund v. Brindaban , (1894) 22 C.
391; Balmakund Ram v. Ghanasamram , (1894) 22 C. 994; Samban , 1 Weir 663;
Dixon , (1814) 3 M. and S. 11 (16) cited in Karali Prasad Guru, (1916) 44 C. 328 : 20
C. W. N. 1076 (1079).

(a) Surwan Singh , (1869) 11 W. R. (Cr.) 11.

Ram Dyal Mundle , (1867) 7 W. R. (Cr.) 18.
c) In rt Nandipati Ramareddi, (1930) 64 M, 251.

OF CRIMINAL TRESPASS

SEC. 447 ]

881

then although he may have no right to the land, he cannot be convicted under this
section (d).

When the plea is taken that the accused acted under a bona fide claim of right
the Magistrate must find mala fides and the intention to commit an offence or to
intimidate, insult or annoy the owner of the property before convicting the accused
under this section (e).

Where the accused is a servant and acted under the orders of his master, it might
be urged that he committed the act of trespass under the orders of his master and
for purposes of his employment (f).

Complaint : — If the complaint is by a person other than the person in posses*
sion, take the plea that the complaint is defective and the charge must fail (g).

Landlord can complain though the land is in possession of the tenant : — Where
the accused has entered upon property in the possession of a tenant with intent
to commit an offence or to intimidate, insult or annoy that tenant, he is clearly guilty
of an offence of criminal trespass and a complaint by the landlord is sufficient to
set the law in motion just as a complaint by the tenant (h).

Charge : — Where the common object in a charge under s. 147 was of taking
forcible possession of complainant’s land and of assaulting him and others, and the
accused were convicted under s. 447 without a charge being framed against them,
the Calcutta High Court held that the conviction was illegal (i).

The intention should be set out in the charge as the Madras High Court has
held : “ The section (441) defining criminal trespass is so worded as to show that
the act must be done with intent , and does not, as other sections do (e.g., s. 425),
embrace a case of an act done with knowledge of the likelihood of a given con-
sequence*' (j).

Form of charge : — The charge, if necessary, will run thus —

I ( name and office of Magistrate , etc.) hereby charge you (name of accused)
as follows : —

That you, on or about the day of , at ,

committed criminal trespass by entering into (or upon or by unlawfully remaining
on) the property (describe it) then in the possession of XY with the intention of
committing an offence (or to intimidate or insult or annoy XY), and you thereby
committed an offence under s. 447 of the Indian Penal Code, and within my cog-
nizance.

And I hereby direct that you be tried on the said charge.

Abetment : — Fawcett, J., held in Patibuvas case (k) that persons who incite
others to commit criminal trespass, and are present when the trespass is committed,
though they do not themselves commit it are guilty of criminal trespass in view of
the provisions of s. 114, and the old contention that they cannot be convicted of

(d) Akshoy Singh v. Rameswar Bagdi, (1916) 43 C. 1143: 20 C. W. N. 1071 :
17 Cr. L. J. 339 : 35 I. C. 515, following Budh Singh, (1878) 2 A. 101, Shistidher, (1872)
9 B. L. R. App. 19 and Jura Khan, (1907) 7 C. L. J. 238.

(e) MgshweKiji, 1 Bur. L. J. 276 :*A. I. R. (1923) Rang. 135.

(f) Bhagavan Din . (1911) 16 A. L. J. 501 : 19 Cr. L. J. 704 : 46 I. C. 160.

(g) Chandi Prasad v. Evans, (1894) 22 C. 123 ; Kalinath Nag Chaudhury, (1867)
9 W. R. (Cr.) 1 ; Iswar Chdndra Karmakar v. Sital Das Mitter , (1872) 17 W. R. (Cr.)
47, see Ganesh Sathe , (1889) 13 B. 600, followed in Keshav Lai Jekrishna , (1896)
21 B. 536.

(h) Fakir Chand v. Fakir, [ 1922) 23 Cr. L. J. 699 : 69 I. C. 379 (Lah.).

(i) AM Munshi, (1913) 18, C. W. N. 992 : 22 I. C. 764.

(i) Rayapadayach % (1896) 19 M. 240, followed in Gya Bhar, (1916) 38 A. 517.
(k) (1926) 28 Bom. L. R. 1029 : 27 Cf. L, J. 1153 : A. I. R. (1926) Bom. 512.

62

882

THE INDIAN PENAL CODE

[CHAP. XVII

the actual offence of criminal trespass has been entirely upset by the Privy Council
decision in Barendra Kumar Ghost (1) and the judgment in Ranchod Sarhang's
case (m).

Person in possession of property absent The offence under this section
may be committed even when the person in possession of the property is absent,
provided the entering into or upon the property is done with intent to do any of
the acts mentioned in the section (n).

Offence committed within Court compound is not criminal trespass

Where the accused entered the Court compound which was open to the public and
there was no suggestion that when he entered the same he intended to commit an
offence and there was no complaint by the Magistrate, the Madras High Court held
that the conviction under this section was not justified (o).

Beating complainant in a field belonging to a third person :—The
Lahore High Court has held that it is doubtful if this section applies to the case
where the field into which the accused is alleged to have trespassed did not belong
to the complainant (p).

448 . Whoeve commits house-trespass shall be punished

Punishment for i m P™ sonment °f either description for a

house-trespass. ° r term which may extend to one year, or with

fine which may extend to one thousand
rupees, or with both.

This section provides punishment for the offence of ‘ house-trespass * defined
in s. 442. If the ‘house-trespass* is attendant with aggravating circumstances,
it is punishable under Ss. 449, 450, 451 and 452 as the case falls within the purview
of the respective sections.

Procedure : — Cognizable — Warrant — Bailable -Compoundable — Triable by
any Magistrate— Triable summarily.

The prosecution must prove the items noted under commentary on s. 447. It
must prove the charge set out under this section.

The additional fact to be proved is that the accused entered into or unlawfully
remained in a building, tent or vessel which was used as a human dwelling, or as a
place of worship or as a place for the custody of property.

The prosecution must prove intention as set out in s. 441 . The essence of an
offence under this section is that there should be an intention to insult, annoy or
intimidate the owner of the property or such person as was acting on behalf of the
owner (q).

It is necessary to prove that the accused committed criminal trespass and
that such criminal trespass was committed by making an entry into or remaining
in a building, tent or vessel (r).

(l) (1924) 52 I. A. 40: 27 Bom. L. R. 148 : 52 C. 197.

(m) (1924) 49 B. 84 : 26 Bom. L. R. 954.

(n) Chinna Venkatesh v. Pedda Kesamma, (193oJ 54 M. 51 5.

(o) Avudayappa Mudaliar, (1923) M. W. N. 451 : 33 M. L. T. 184 : 24 Cr. L. J-
824 : 74 I. C. 856 : A. I. R. (1924) Mad. 40.

(p) Bishen Singh, (1923) 24 Cri L, J. 690 : A. I. R. (1924) Lah. 252.

(q) Mewalal, (1917) 3 Pat. t. J. 147: a Pat. L. W. 359: (1917) Pat. Supp.

G. W. N. 363: 19 Cr. L.-J. 249 : 44 I. C. 41 ; 7'hdru , ^ (1911) 5 S. L. R, 29 : 12 Cr.
L. J. 148 : 9 I. C. 895. # ,

(r) Rehana t (1925) 8 £. 20 (22),

SEC. 448 ]

OF CRIMINAL TRESPASS

883

The introduction of any part of the trespasser’s body is entering sufficient to
constitute house-trespass. But the trespass must be criminal as defined in s. 441 ,
supra (s).

The defence should establish that the entry into the house was on an invita-
tion of the complainant if it can do so under the facts and circumstances of the
case (t).

Ss. 448 and 452 : — Where the accused entered the verandah of the com*
plainant’s house and dragged him out and assaulted him and was convicted under
s/452, the Calcutta High Court altered the conviction to one under this section
holding that on the facts house-trespass was committed (u).

Attempt : — Entry in a verandah may not amount to house-trespass but such
entry coupled with an attempt to push open the door does amount to an attempt
to commit the offence (v).

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

committed house-trespass by entering into (or remaining in) the building (or tent
or vessel) of XY used as human dwelling (or as a place of worship or for the custody
of property) with intent (specify the intent ), and that you thereby committed an
offence punishable under s. 448 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Separate sentence : — See commentary on s. 71, supra .

House-trespass and mischief not being separate offences, but included in the
graver offence of being members of an unlawful assembly armed with deadly
weapons, separate convictions and sentences were set aside (w).

Punishment : — As to punishment for offences under this section in a Frontier
District see the Frontier Crimes Regulation, 1901 (III of 1901) s. 12, Punj. and
N. W. Code.

House*trespass : — There must be an entry into the house ; merely getting
upon the roof is not sufficient (x).

Where a decree-holder took oilt process for execution of the decree and
attached certain cattle belonging to the judgment-debtor in the house of a third
person, the Allahabad High Court held that it cannot be said that in taking the cattle
out of the complainant’s house where they had been kept, the accused were guilty
of criminal trespass (y). Similarly petitioners having entered into a house accom-
panied by the Naib Nazir of the Civil Court to execute a decree for ejectment could
not be said to have the intention necessary to constitute the offence (z).

Where during the temporary absence of the complainant from his house, his
wife invited the accused to the house who entered it with the intent to commit
adultery, it was held that the accused was guilty of house-trespass (a).

(s) Lalai, (1879) 2 A. 301.

(t) Rupa , (1919) 20 Cr. L. J. 010 : 52 I. C. 274 (Oudh). following Rayapadayachi,
(1896) 19 M. 240 ; Gaya Bhar , (1910) 38 A. 517 ; Balmukand Ram v. Gkanasyamram,
(1894) 22 C. 391.

(u) Fakir Chand De, (1921) 38 C. L. J. 101 : 25 Cr. L. J. 168 : 76 I. C. 392.

(v) Nya Pan H. Vain}, 8 Bur. L. T. 17 : 16 Cr. L. J. 2 : 26 I. C. 300.

(w) Suroop Napit. (1805) 3 W. R. (Cr.) 54.

(x) 1860 1 Weir 149.

(y) Bhikam Singh, (1917) 5 A. L. J. 803 : 19 Cr. L. J. 40 : 42 I. C. 1006.

(z) Abdul Sattar V. Sm. Moti Bibi , (1930) 34 C. W. N. 583.

fc) Chatter Singh Dhmai, (1919) 3 U. B. R. (1919) 194: 21 Cr, L. J. 435: 56
I. C. 227* _ t

884

THE INDIAN PENAL CODE

[ CHAP. XVII

A Full Bench decision of the Madras High Court has held that trespass is an
offence under s. 441, only if it is committed with one of the intents specified in the
section and the legislature did not intend that doing the act with a knowledge of
its consequences should be punishable (b).

Intention is the chief ingredient. Circumstances under which the alleged
act was done must be looked into to determine the intent (c). To support a con-
viction under this section, some one of the intents mentioned in s. 441 must be
expressly found (d).

For further commentary see notes under s. 442.

449. Whoever commits house-trespass in order to the
committing of any offence punishable with

or?er°to commH offence sha11 be punished with transportation

punishable with death, tor life, or with rigorous imprisonment tor a
term not exceeding ten years, and shall also

be liable to fine.

This section punishes house- trespass in order to commit an offence punishable
with death.

Procedure : — Cognizable — Warrant Not bailable Not compoundable —

Triable by Court of Session.

Hou) to prove intent to commit offence punishable with death ? The prose-
cution must prove intent as in other sections by proving design to commit murder.
It would be relevant to prove enmity between the accused and the deceased as also
the motive for the murder in cases where the accused is alleged to have carried on
intrigue with a female inmate of the house.

Charge Same as set out in s. 451 , infra , substituting the words ‘ punishable
with death * for the words * punishable with imprisonment * and s. 449 for s. 451
and omitting the words 4 within my cognizance.'

450. Whoever commits house-trespass in order to the

House-trespass in committing <of any offence punishable with
order to commit offence transportation for life, shall be punished with

punishable with trans- imprisonment of either description for a
porta ti on for life. . r . j. liiii

term not exceeding ten years, and shall also

be liable to fine.

This section acts as a supplement to the preceding section. While the pre-
ceding section punishes house-trespass in order to the committing of an offence
punishable with death, this section provides punishment for the offence of house-
trespass in order to commit an offence punishable with transportation for life.

Procedure < Cognizable — Warrant — Not bailable — Not compoundable—
Triable by Court of Session.

Charge — same as under s. 451, substituting the words 'punishable with
transportation for life * for the words * punishable* with imprisonment * and s. 450
for s. 451 and omitting the words ‘ within my cognizance.*

(b) Vullapa v. Bhcetm Rao, (1917) 41 M. 156 (F. B.) : 33 M. L. J. 729 : (1913)
M. W. N. 81 : 19 Cr. L. J. 162 : 43 L C. 578.

(c) Shamacharan Das v. Ashutosh Das ; A. I. El (1928) Cal. 263 (1).

(d) Durgaiya , (1882) 1 Weir 524„

SEC. 451 ]

OF CRIMINAL TRESPASS

885

451. Whoever commits house-trespass in order to the
„ „ committing of any offence punishable with

House-trespass m • . 1111 *ii • i

order to commit offence imprisonment, shall be punished with 1 m-
sonment 510 with impri prisonment of either description for a term
s 1 which may extend to two years, and shall be

liable to fine ; and if the offence intended to be committed is
theft, the term of the imprisonment may be extended to seven
years.

This section provides for the offence of house-trespass in order to the com-
mitting of any offence punishable with imprisonment.

Procedure : — Cognizable — Warrant— Bailable Compoundable when per-

mission is given by Court hzfore which prosecution is pending (e) — Triable by any
Magistrate — Triable summarily.

If the offence intended is theft : — Cognizable — Warrant — Not bailable — Not
compoundable — Triable by Court of Session, Presidency Magistrate or Magistrate
of the first or second class.

Scope : — In order to constitute an offence under this section, the prosecution
must first establish all the facts necessary to constitute the offence of simple house-
trespass punishable under s. 448, and must then satisfy the Court that, in the
particular case before it, the house-trespass was committed in order to the cqjn-
mitting of an offence punishable with imprisonment (f).

Charge 2 — The charge under this section must charge the accused with
committing house-trespass with intent to commit some spzcific offence punishable
with imprisonment (g).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused ) as follows : —

That you, on or about the day of , at ,

committed house-trespass by entering into (or remaining in) the building of
XY used as a human dwelling (or for the custody of property) in order to commit
the offence, punishable with imprisonment and that you thereby committed an
offence punishable under s. 451 of the Indian Penal Code, and within my cogni-
zance (or the cognizance of the Court of Session or the High Court).

And I direct that you be tried (by the said Court) on the said charge.

Punishment : — As to the Frontier District, see the Frontier Crimes Regu-
lation, 1S0I (III of ISO!), s. 12 Punj. and N. W. Code.

House~trespass in order to commit an offence For further cases of
trespass in order to commit adultery see notes to s. 441 under the heading * Intent
to commit adultery .’ **■.

Where during K's absence from home, the accused entered his house with
his wife’s consent in order to commit adultery with her, the Lahore High Court
held that the accused was guilty under this section, and further held that the consent
of the wife could not save the accused (h). Where the prisoner was convicted of

(e) These words were substituted for 11 Non-compoundable ” by Act XVIII
of 1923.

(f) Mansoor Husain, (1919) 41 A. 587 : 17 A. L. J. 800 : 20 Cr. L. J. 347 : 50
I. C 827.

’(g) ' Mehar Dowalia, (187lJ 10 W. R. (Cr.) 63,

886

THE INDIAN PENAL CODE

[CHAP. XVII

housebreaking, his object being to have sexual intercourse with complainant's wife,
the Madras High Court held that the conviction of the prisoner was perfectly legal (i).

Intent to commit adultery— Connivance of husband A man who

enters the house of another at night with intent to commit adultery with his wife
is guilty under this section. In a case where the husband was absent in the legiti-
mate pursuit of his occupation, it may safely be presumed that such husband
neither consented to nor connived at any adultery or immorality on the part of his
wife (j). To sustain a conviction under this section, the prospective offence
being adultery, it is necessary for the prosecution to show that there has been no
consent or connivance on the part of the husband of the woman to the act (k).
Where the accused was found in the complainant's house by night, but he stated
that he was there for the purpose of carrying on an intrigue with the complainant's
wife and the complainant refused to lay a complaint of house-trespass with intent
to commit adultery, it was held that the Magistrate was right in refusing to convict
the accused of a charge which the husband refused to make (1), but the Bombay
High Court has held a contrary view. The omission of the husband to prosecute
the accused for adultery does not absolve the prisoner from liability under this
section (m).

452. Whoever commits house-trespass, having made prepara-

Housc-trespass after tion f°. r hurt to any person, or for

preparation for hurt, assaulting any person, or tor wrongfully

restraint. ° r wrongful restraining any person, or for putting any
person in fear of hurt, or of assault, or of
wrongful restraint, shall be punished with imprisonment of either
description for a term which may extend to seven years, and
shall also be liable to line.

House- trespass— s. 442. Hurt— s. 319.

Assault — s. 351. Wrongful restraint — s. 339.

This section punishes ‘ house-trespass after preparation to cause hurt, assault
or wrongful restraint.’ This section provides for higher punishment that the last
section as the offender here commits an overt act of preparation to cause hurt,
assault or wrongful restraint, but under s. 451 he commits house-trespass in order
to commit an offence. This section does not require that actual hurt, assault or
wrongful restraint should be caused.

Conviction when bad : — Where appellant entered an enclosure of one /
made of thorny bushes and it was found that the enclosure had no roof or door,
field that a conviction under this section was bad as such an enclosure was not a
building (n).

Procedure j-r-Cognizable— Warrant Not bailable Not compoundable—

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

(h) Anant Ram, (1920) P. W. R. No. 8 of 1021 (Cr.) : 22 Cr. L T 118* 59
I.C. 550. .

(i) (1875) 8 M. H. C. R. (App.) 0. *

(j) Kkanoon Ram , (1920) 22 Cr. L. J. 260 : 60 1. C. 806.

(k) Brij Bari, (1890) 19 A. 74 followed in Jagannath, (1912)

2d I. c. 703. V 1

15 Cr. L. J. 351 :

(l) (1809) 5 M. H. C. R. (App.) 5 ; see (1868) 1 Weir 531.

(m) Bandhu , (1894) Rat. Unrep. Cr. C. 689.

(n) Munshi, (1928) 26 A. L. J, 855.

sec. 453 ]

OF CRIMINAL TRESPASS

887

Form of charge I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused) as follows

That you, on or about the day of— , at ,

committed house-trespass by entering into (or remaining in) a building (or tent
or vessel) used as a human dwelling (or building used as a place of worship or for
the custody of property) in the possession of XY with intent to commit an offence

to wit (or with intent to intimidate, or insult or annoy the said XY

having made preparation for causing hurt to (or assaulting or wrongfully restrain-
ing or putting in fear of hurt or assault or wrongful confinement) XY % and that
you thereby committed an offence punishable under s. 452 of the Indian Penal
Code and within my cognizance (or the cognizance of the Court of Session or the
High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

House-trespass after preparation for hurt, assault or wrongful re-
straint : — Where three accused entered the verandah of the complainant’s house
and dragged him on, but no further fact was found from which it could be held
that the accused committed house- trespass having made preparation for causing
hurt to any person or for assaulting any person, the Calcutta High Court held that
the facts were insufficient to warrant a conviction under s. 452 though it might be
sufficient for a conviction under s. 448 (o).

Where A goes with a forged warrant of arrest into a house, and takes away one
of the inmates against his will under the authority of such warrant, he is guilty
of house-trespass by putting such person in fear of wrongful restraint under this
section (p).

453. Whoever commits lurking house-trespass or house-

Puuishment for lurk-
ing ho use- trespass or
house-breaking.

breaking, shall be punished with imprisonment
of either description for a term which
may extend to two years, and shall also be

liable to fine.

This section provides punishment for lurking house- trespass defined in s. 443
or housebreaking defined in s. 444. .

House-trespass becomes lurking house-trespass if the offender takes precautions
to conceal such house- trespass from some person who has a right to exclude him.
The mere fact that a house-trespass was committed by night makes the offence one
of lurking house- trespass.

In order to constitute lurking house-trespass the offender must take some active
means to conceal his presence (q).

Procedure i— Cognizable — Warrant — Not bailable Not compoundable —

Triable by Presidency Magistrate, or Magistrate of the first or secqpd class. — Tri-
able summarily.

Charge: — A charge under s. 451 must charge the accused with committing
house-trespass with intent to commit some specific offence punishable with im-
prisonment (r).

(o) Fakir Chandra De, (1&21) 38 C. L. J. 161 : 25 Cr. L. J. 168 : 76 I. C. 392.

(p) Nundmohan Sirket, (1869) 12 W. R. (Cr.) 33.

(q) Budha, (1916) P. L. R. No. 123 of 1916 : P. W. R. No. 44 of 1916 (Cr.) :
P.R. No. 21 of 1916 (Cr.) : 17 Cr. L. J. 304 : 36 I. C. 176, following Ghulam Jelani,
P. R. No. 16 of 1889 (Cr.).

(r) Mehar Dowalia, (18?1) 16 W. R. (Cr.) 63.

888

THE INDIAN PENAL CODE [ CHAP. XVII

Form of charge : — I {name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of -, at ,

committed lurking house-trespass (or housebreaking) by entering into (or remaining
in) a building (or tent or vessel) used as a human dwelling (or building used as a place
of worship or for the custody of property) in the possession of X Y with intent to

commit an offence to wit (or with intent to intimidate or insult or

annoy the said XY) t (where charge is lurking house-trespass , add : having taken pre-
cautions to conceal such house- trespass from XY who had the right to exclude or
eject you from the said building or tent or vessel) and that you thereby committed
an offence punishable under s. 453 of the Indian Penal Code and within my
cognizance.

And I hereby direct that you be tried on the said charge.

454. Whoever commits lurking house-trespass or house-
breaking, in order to the committing of any
pa^ U OT n house U breaWng offence punishable with imprisonment, shall
m order to commit be punished with imprisonment of either
fmpdsonment habl ° W ' th description for a term which may extend to
three years, and shall also be liable to fine ;
and, if the offence intended to be committed is theft, the term
of the imprisonment may be extended to ten years.

This section punishes ' lurking house trespass or housebreaking in order to
commit offence punishable with imprisonment/ S. 457 deals with the same offence
when committed by night and provides for a more enhanced punishment than under
this section as the offence is more heinous.

Where in the course of one and the same transaction an accused person
appears to have perpetrated several acts, directed to one end and object, which
together amount to a more serious offence than each of them taken individually
by itself would constitute, although for purposes of trial, it may be convenient to
vary the form of charge and to designate not only the principal but the subsidiary
crimes alleged to have been committed, yet in the interests of simplicity and con-
venience it is best to concentrate the conviction on the gravest offence proved (s).

Procedure : — Cognizable— Warrant — Not. bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class — T riable summarily.

Charge See Form as set out under s. 457 omitting the words ' after sunset
and before sunrise 1 and substituting 1 8. 454 * for ‘ s. 457/

Where the appellate Court altered the conviction from one under s. 451 to
s. 454 and also altered the sentence to 15 stripes, the Allahabad High Court held
that housebreaking # in order to the committing of the offence under s. 354, supra,
not being punishable with whipping under s. 3 (d) of Act IV of 1909, the sentence
of whipping was illegal (t).

Previous conviction The provisions of s. 75 cannot be applied to a
conviction under this section when the previous conviction is one passed by a
criminal Court in a Native State (u). f

; t Xjudhia, (1880) 2 A. 644 (040).

ky Darbartial, (1925) 23 A. L. J. 804.

(u) Bhanwar, (1919) 42 A. 130, following Bahawal , (1913) P. R. No. 48 (Cr.) 64 of

1913.

SECS. 455-56 ]

OF CRIMINAL TRESPASS

889

I.nrlfing house-trespass or housebreaking in order to commit offence
punishable with imprisonment : — The offences punishable under Ss. 454 and
457 are, with the exception that the former is committed by day and the latter by
night, precisely the same. The latter part of each section enacts that, if the offence
intended to be committed is theft, the term of imprisonment may be extended from
three and five years to ten and fourteen years respectively. An intent to commit
theft would not be punishable until after lurking house-trespass, or housebreaking
had been committed (v).

455. Whoever commits lurking house-trespass, or house-

breaking, having made preparation for causing
pi ur o! n house-break?n S g hurt to any person, or for assaulting any per-
after preparation for son, or for wrongfully restraining any person,
fuT^estrafnt 11 ° r wr ° ng " or for putting any person in fear of hurt or
of assault or of wrongful restraint, shall be
punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.

This section punishes lurking house-trespass or housebreaking after prepara-
tion for hurt, assault or wrongful restraint and s. 458 punishes the same offence
when committed by night and provides for an enhanced punishment.

Procedure : — Cognizable — Warrant — Not bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Charge 2 — See Form set out under s. 458 omitting the words ‘ after sunset
and before sunrise ’ and substituting * s. 455 * for 4 s. 458/

For commentary see commentary on s. 458.

456. Whoever commits lurking house-trespass by night.
Punishment for lurk- or house-breaking by night, shall be punished

ing house-trespass or with imprisonment of either description for
house-breakmg by mght. f erm w K[ c b ma y extend to three years,

and shall also be liable to fine.

Lurking house-trespass — s. 443. * Housebreaking — $. 445.

This section punishes lurking house-trespass or housebreaking by night.
If the same offence is committed during day time, the offender is liable to punish-
ment under s. 453.

Procedure : — Cogniptble — Warrant — Not bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class — Triable summarily.

Onus to prove honest intention is on the accused : — The accused was found inside
the complainant’s house at 2 a.m. and when arrested it was found fthat the accused
had on his person some property belonging to the complainant. He was charged
with having committed lurking house-trespass by night with an intent to commit
theft. The accused stated that he had gone inside the house as hp had an illegal
intimacy with the widowed aunt of the complainant and had been invited by her,
but could not prove that at the trial. The Allahabad High Court held that the
presence of the accused at that hour pointed to a guilty intent and it was for the
accused to rebut that presumption — the conviction was altered from one under
s. 457 to a conviction under this section (w). 4

- - - — - .

[v) Zar Singh, (1887) IOA. 146 (149).

[w) ' Mull*. (1916) 37 A. 396 : 13 A. L . ). 626 : 16 Cr. L. J. 435 : 29 I. C. 67.

890

THE INDIAN PENAL CODE

[CHAP. XVII

Charge:— It is well settled that to sustain a conviction under this section
it is not necessary to specify the criminal intention in the charge ; it is sufficient if a
guilty intention is proved such as is contemplated by s. 441 (x), but it has been
held that a conviction under s. 456 would not be bad for want of specification of the
intention in the charge, though one under s, 457 could not be sustained without
such specification (y).

Form of charge I ( name and office of Magistrate , etc.) hereby charge
you ( name of accused) as follows : —

That you, on or about the day of , at ,

committed lurking house-trespass by night (or housebreaking by night) by enter-
ing into the building belonging to XY and used as a human dwelling, after the hour
of sunset and before the hour of sunrise, and that you thereby committed an offence*
punishable under s. 456 of the Indian Penal Code, and within my cognizance (or
within the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Ss. 456 and 457 : — The charge under s. 456 of entering the house with an
object not specified but which is presumed to be criminal, cannot be sustained
when the person is being tried for the specific charge of theft in a dwelling house
and housebreaking with intent to commit theft. The accused must be seriously
prejudiced by not knowing what really is the charge against him. Although it is
not necessary under s. 456 to specify any particular offence intended to be com-
mitted, when a particular offence is specified under s. 457, it is incompetent to
convict an accused of housebreaking with some other intent (z). This case was
distinguished in a later case, where Mookerji, J., pointed out : “ If the Court
intended to formulate an inflexible rule of universal application that under no cir-
cumstances can a conviction be made under s. 456 when the accused has been
charged with the commission of an offence under «. 457 the view cannot possibly
be sustained. S. 238, Cr. P. Code, would clearly be applicable to a case of this
character M (a). The Patna High Court has held that it is not open to the appellate
Court to alter the conviction from one under s. 457 to one under s. 456 because the
object set out in the charge, tfiz., trespass to commit theft was not proved but another
object, viz ., to annoy or insult the women in the house in which the trespass was
committed was proved (b).

Ss. 456 and 509 When the evidence shows that a man has been found
lurking at night inside the house of another person, a perfect stranger to him, or a
person in whose house he has no apparent business, the prosecution will be entitled
to ask the Court to infer from these facts that there was a guilty intention on the
part of the accused sufficient to bring his action within the purview of s. 441, and
in dealing with cases of this sort, Magistrates should not overlook the existence
of the provisions of s. 509 (c).

This section refers to an office of lurking house-trespass. An accused person,
though he may have known that if discovered his act would be likely to cause

(x) Koilash Chandra, ( 1889) 16 C. 667; Balmakand v. Ghanasamram , (1894)
22 C. 391 : Premanundo v. Brindaban, (1895) 22 C, 994; Ishri, (1906) 29 A. 40;
Sher Singh, (1883) P. R. No. 14 of 1883 ; Lalji Ram , (1898) P. R. No. 12 of 1898 ;
Ramrang , (1902) P. R. No. 18 of 1902 followed in Karali Prasad Guru, (1916) 44 C.
358 (364) : 20 C. W. N. 1075 (1078) : 17 Cr. L. J. 424 : 35 I. C.984.

if) Balmakand Ram v. Ghanasamram, (1894) 22 0.391 (403).

( 2 ^ Jkaru Sheikh, (1912) 16 C. W. N. 606 : 13 Cr. L. f J. 224 : 14 I. C. 320. See
.also Ram Char an K dir ee, (I860) 6 W. R. 39 (F. B.).

(a) Karali Prasad GurU t (191#) 44 C. 358 (362) : 20 C. W. N. 1075, following
Ishri, (1906) 29 A. 46; Sher Singh, (1883) P. R. No. 14 of 1883.

(b) Raghu' Singh, (1919) 1 Pat. L. T. 221 : 21 Cr. L. T. 490 : 56 I. C. 592.

(c) Uahfr {1917) 16 A. L. J. 157 : 19 Cr. L. J. 243 ; 4*1. C. 35.

SEC. 457 ]

OF CRIMINAL TRESPASS

891

annoyance to the owner of the house, cannot be said to have intended either
actually or constructively to cause such annoyance. Where it was proved that a
person entered a house with intent to commit illicit intercourse with a widow and
of age, the Allahabad High Court held that the accused was guilty of no offence and
set aside the conviction under this section (d). The Punjab High Court has held
that in the absence of a finding as to the intention of the accused charged under
this section his conviction cannot be upheld, and held further that it would be no
offence for the accused to enter the house of a widow for the purpose of carrying on
an intrigue with her (e).

The intention may be determined as well from direct evidence as from the
conduct of the party concerned and the attendant circumstances (f).

Mere non-production of the owner or person in possession does not vitiate
conviction under this section (g).

Lurking house-trespass or housebreaking by night : — See commentary on s. 441
under the heading ‘ Intention to commit adultery '

457. Whoever commits lurking house-trespass by night,
or house-breaking by night, in order to the
", committing of any offence punishable With
by night or in order to imprisonment, shall be punished with impri-
hfmJSoSS: sonment of either description for a term which
may extend to five years, and shall also be
liable to fine ; and, if the offence intended to be committed is
theft, the term of the imprisonment may be extended to fourteen
years.

This section extends the principle of the preceding section. Here the aggra-
vating circumstance is that the offender not only commits lurking house-trespass
by night or housebreaking by night but does so in order to the committing of any
offence punishable with imprisonment. Hence this section provides for a heavier
punishment than the preceding section.

A Magistrate cannot split up 1 an offence to assume jurisdiction : —

Where an accused is tried and convicted under Ss. 456 and 380, the Judge on
appeal could not set aside the conviction in order that he might be tried and
punished for the aggravated offence under s. 457 (h).

Where the accused was charged under s. 1 10 with being a habitual offender,
the Bombay High Court held that the evidence must be so general and over-
whelming as to leave no practical doubt that the accused had been in the habit of
committing thefts and robberies or other offences of the kinds specified (i).

Identity of the stolen articles must be clearly established Where
the petitioner was convicted under this section and the whole case against him was
that in his house a nose-ring and two lungis were found which were claimed by the

(d) G%ya Bhar, (1916) 38 A. 617 : 14 A. L. J. 719 : 17 Cr. L. J. 419 : 36 I. C.

979, dissenting from Jiwan Singh , P.R. No. 64 of 1908 (Cr.) and following Rayapadayach i,
(1896) 19 M. 240. »

(e) Milkhi Ram, (1919) P. L. R. No. 50 of 1919.

(f) Karali Prasad Guru , (1916) 44 C. 358 (306), following Dixon, (1,814) 3 M.
and S. 11

(15).

(g) Manin, (1924) A. I. R. 764 (All.).

(h) RamchumKairee, (4866) 6 W. R. 39 (F. B.).

(i) # Bandhu (1894) Rat. Unrep. Cr. C. 639.

892

THE INDIAN PENAL CODE

[ CHAP* XVII

complainant as his and that on his person were a few scratches which might have
been caused by his crawling through the small hole in the wall made by the burg-
lars and the lung is were not proved to be complainant’s and seemed to be incapa-
ble of identification, it was held that the conviction was bad in law (j).

Separate sentence t— See commentary on s. 71, supra.

Separate sentences under Ss. 457 and 380 are not illegal (k).

In a case of housebreaking by night and of house-trespass in respect of the
same act, the Bombay High Court held the second head of the charge superfluous
because it involved the same intention substantially as the first which intention
ought not to apply to support two different charges (1).

Whipping In the case of attempting to commit housebreaking by night'
with intent to commit theft, the Bombay High Court annulled a sentence of whipp-
ing as being illegal (m).

Previous conviction : — It is the duty of the prosecution to see that matters,
such as the existence of previous convictions, are brought definitely to the notice
of the Court at the proper time (n).

Punishment As to the Frontier District, see the Frontier Crimes Regulation

an of mu s . i 2 .

Ss. 457,380 — Criminal Tribes Act , s. 23: — Where accused, who was a
member of a criminal tribe and had been twice previously convicted of dacoity,
finding the door of a house open, walked in and proceeded to steal certain articles
therefrom, and removed some articles preparatory to taking them away, but he was
caught in the act, it was held that the accused could not be convicted under s. 457
and the conviction should have been under s. 380, and the conviction was altered
to one under s. 380 read with s. 75, supra (o).

Where the accused were charged under Ss. 457 and 395 and the Jury acquitted
them but the Sessions Judge referred the case to the High Court, it was held that
the mere fact that an accused person points out the place in which the stolen pro-
perty is concealed does not give rise to any presumption under s. 1 14 of the Evidence
Act, or justify his conviction of the offence of receiving stolen property, still less of
the offence of theft or dacoity (p).

Where an accused arrested on charges under Ss. 457 and 380 pointed out the
place where certain stolen property was concealed which was a tank accessible
to the public in general and it was doubtful whether the accused or some other
person concealed such stolen articles, held , such evidence was insufficient for a
conviction (q).

Where the accused were charged under Ss. 457 and 380, and there was no direct
evidence of the accused breaking into the house or actually removing the articles,
but four days after the occurrence, the accused gave up the alleged stolen articles

(j) Khalas, (19Uj P. L. R. No. 79 of J 915.

(k) Kanchan Molla, (1925) 41 C. L. J. 563, contra Makru Dusadh, (1926) 5 P.

464.

(l) Khandu, Rat. IJnrep. Cr. C. 302.

m) Yella Parshia, (1866) 3 Bom. H. C. R. (Cr. C.) 37.

(n) prem, (1929) 27 A. L. J. 397, see Ghasila, (1918) P. R. No. 13 of 1919 : 20
Cr. L. J. 491, where on facts held , s. 75 had no application*,

(q) 'Bhagwana, (1918) 16 A. L. J. 383: 19 Cr. L. J. 609 : 45 I. C. 513.

(p) Shiva Putraya, (1930) 32 Bom. L. R. 574.

(q) Gobindq , (1895) 17 A. 576 approved of in Paimulla, (1912) 16 C. W. N. 238 :
13 Cr. L. J. 127 : 13 I. C. 783 and Buta Singh, (1917) 1 P. R. 1917 (Cr.) : 18 Cr. L. J.
490. followed in Pakkirswami, (1919) 67 M. L. J. 548 ; (1929) M. W. N. 786 : A. I, R.
(1929) Mad. 846.

SEC. 458 ]

OF CRIMINAL TRESPASS

893

and were not able to satisfactorily account for the possession of them, it was held
that the accused was guilty under s. 41 1 and not under Ss. 457 and 380 (r).

Attempt : — Where the accused went to the house of the complainant one night,
and began to dig a hole in the wall of his house, but the hole was not carried through
the whole thickness of the wall because the accused were surprised and decamped,
the Migistrate convicted the accused of an attempt to commit housebreaking.
On appeil, the Scions Judge acquitted the accused on the ground that the accused’s
acts did not amount to an attempt to commit housebreaking but only to prepara-
tion. The Government of Bombay hiving appealed against the order of acquittal,
the High Court of Bimbiy following the leading case in England (Reg. v. Cheese-
mar l, 9 Cox. 103) set aside the order of acquittal and remanded the case in order
that the charge under Ss. 457 and 511 may be desit with in accordance with law (s).

Form of charge : — I (nami and office of Magistrate , etc.) hereby charge
you (name of accused) as follows : —

That you, on or about the day of , at ,

committed lurking house- trespass bv night (or housebreaking by night) by entering
into the building belonging to XY and used as a human dwelling (or a place for
worship, or a place for the custody of property) after the hour of sunset and before
the hour of sunrise, in order to the committing of an offence punishable with

imprisonment, to wit the offence of (mention it), and that you thereby

committed an offence punishable under s. 457 of the Indian Penal Code, and
within my cognizance (or within the cognizance of the Court ol Session or the High
Court).

And I hereby direct that you be tried (by the said Court) cn the said charge.

Intention to commit adultery s — See commentary on s. 441, supra .

458. Whoever commits lurking house-trespass by night, or
house-breaking by night, having made pre-
pai Ur ir n ho«sc°breaWns paration for causing hurt to any person, or
by night after prepara- for assaulting any person or for wrongfully

wrongful res r tra?nt ult ° r restraining any person or for putting any
person in fc.ar of hurt, or of assault, or of
wrongful restraint, shall be punished with imprisonment of either

description for a term which may extend to fourteen years, and
shall also be liable to fine.

Lurking house- trespass by night — s. 444.

Housebreaking by night — s. 446.

Hurt — s. 319. Assault — s. 351.

Wrongful restraint — s. 339.

This section is analogous to the provisions of s. 452.

Procedure : — Cognizable — Warrant Not bailable Not compoundable

Triable by Court of Session, Presidency Magistrate, or Magistrate of the first class.

S. 458 with 8. 34:— S. 458 only applies to the housebreaker who actually
has himself made preparation for causing hurt to any person or for assaulting any
person or for wrongfully restraining any person and so on, and not to his companions
as well as to those who themselves have not made such preparation. S. 34 has no
application to such cases (t).

(r) In re Turimella Kuranna, (1916) 17 Cr. L. J. 179: 33 I. C. 819 (Mad.).

(s) Chmdkha Salqjbatkha , (1913) 37 B. 552.

• (t) Ghulam , (1923) 4 Lah. 399 : 25 Cr. L. J. 398 : 77 I. C. 446 : A. I. R. (1923)
Lah. 509. >

894 THE INDIAN PENAL CODE [ CHAP. XVII

Charge s — I (name and office of Magistrate , etc.) hereby charge you ( name of
accused) as follows: —

That you, on or about the— day bf , at — ,

committed lurking house-trespass by night (or housebreaking by night) by entering
into the building (or tent or vessel) belonging to XY, and used as a human dwelling
(or as a place for worship or for the custody of property), after the hour of sunset
and before the hour of sunrise, after having made preparation for causing hurt
to XY of AB (or for assaulting or wrongfully restraining the said XY or for putting
AB in fear of hurt or of assault or of wrongful restraint), and you thereby com-
mitted an offence punishable under s. 458 of the Indian Penal Code, and within my
cognizance (or the cognizance of the Court of Session or the High CourtX

And I hereby direct that you be tried (by the said Court) on the said charge.

Punishment : — As to the Frontier District, seethe Frontier Crifruss Regulation
fill of 1901), s. 12.

459. Whoever, whilst committing lurking house-trespass or

Grievous hurt caused House-breaking, causes grievous hurt to any
whilst committing lurk- person or attempts to cause death or grievous

house - brea khi g? ^ as S ° r ^urt to ar> y P erson >. shall be punished with
" 44 ^ transportation for life, or imprisonment of

either description for a term which may extend to ten years, and
shall also be liable to fine.

This section punishes grievous hurt caused whilst committing lurking house-
trespass or housebreaking and provides for a heavier punishment than the preceding
section. In a sense, this section is an aggravated form of the offence punishable
under the preceding section but s. 458 deals with lurking house-trespass or house-
breaking by night after preparation for hurt, assault or wrongful restraint, whereas
under this section ‘ lurking house-trespass or housebreaking ’ need not be com-
mitted by night. This section extends the principle of s. 455 but requires that
the offender should either actually cause grievous hurt or attempt to cause death
or grievous hurt.

Scope:— This section and the next provide for a compound offence the
governing incident of which is that either * a lurking house-trespass * or ‘ house-
breaking ' must have been completed, in order to make a person who commits that
offence either by causing grievous hurt or attempt to cause death or grievous hurt
responsible under those sections. It is necessary that the provisions of these sections
should be construed strictly ; it was not contemplated that where the principal act
done by the accused person amounts to no more than a mere attempt to commit
the offences of lurking house-trespass or housebreaking the section should be
applicable (u).

The offente of housebreaking is complete when entry into the house is
effected and any grievous hurt subsequently caused by the persons breaking into
the house cannot be said to be grievous hurt caused while they were committing
the housebreaking (v).

■ «*

Procedure :— Cognizable— Warrant— Not bailable Not comnoundable—

Triable by Court of Session. *

Charge :— I (name and office of Magistrate, etc.) hereby charge you (name of
accused) as follows : —

(u) Ismail Khan, (1886) 8 A. 649. *

(v) Syti Ahmed Khan, (1927) 49 864: 26 A. L. J. 516.

OF CRIMINAL TRESPASS

895

SEC. 460]

That you, on or about the day of , at — ,

while committing lurking house-trespass or housebreaking caused grievous hurt
to XY (or attempted to cause the death of XY or grievous hurt to XY), and that
you thereby committed an offence punishable under s. 459 of the Indian Penal
Code, and within the cognizance of the Court of Session for the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Punishment: — As to the Frontier District, see the Frontier Crimes Regula-
tion (III of 1901), s. 12.

460 . If, at the time of the committing of lurking house-
trespass by night or house-breaking by night,
ah persons jointly any person guilty of such offence shall

house-trespass or 'houses voluntarily cause or attempt to cause death
breaking by night or grievous hurt to any person, every person

org'rSus hlrtcauscd jointly concerned in committing such lurking
by one of them. house trespass by night or housebreaking

by night, shall he punished with transporta-
tion for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

This section provides punishment for the constructive liability of the asso-
ciates of the accused who are jointly concerned in lurking house-trespass or house-
breaking by night when the accused voluntarily causes or attempts to cause death
or grievous hurt to any person. For constructive liability compare the provisions
of Ss. 149, 394 and 396, supra , and the provisions of s. 34.

Procedure : — Cognizable Warrant — Not bailable — Not compoundable —

Triable by Court of Session.

Charge : — I (name and office of the Magistrate, etc.) hereby charge you
( name of accused ) as follows : —

That you, on or about the day of , at ,

were jointly concerned with AB U committed lurking house-trespass by night (or
housebreaking by night) by entering into a building (or tent or vessel) used as a
human dwelling (or place of worship or a place for the custody of property) in the
possession of XY and that at the time of the committing of such lurking housc-
trespass by night (or housebreaking by night) the said AB voluntarily caused (or
attempted to cause) death (or grievous hurt) to CD, and that you thereby committed
an offence punishable under s. 460 of the Indian Penal Code, and within the cogni-
zance of the Court of Session or the High Court.

And I hereby direct that you be tried by the said Court on the said charge.

Scope : — This section was intended to provide for the jftmishment of persons
who were jointly concerned in the committing of the house- trespass or house-
breaking altogether irrespective of whether they were the persons who caused or
attempted to cause grievous hurt. It never intended that if a person while he was
committing a burglary happened also to commit murder, he should be punished
only for burglary and not for murder (w).

The provisions of s. 459 and this section being of a highly penal nature, and
inflicting very severe punishment upon conviction, it is necessary that they should
be construed strictly ; it was not contemplated that where the principal act done by

(w) Chatur , (1911) 8 A* L. J. 574.

896

THE INDIAN PENAL CODE

[CHAP. XVII

the accused amounts to no more than an attempt to commit the offences of lurking
house-trespass or housebreaking, the section should be applicable (x).

Armed burglar not punishable under this section : — Where the accused
broke into the house of one T. 5. at night with intent to commit theft and armed
with deadly weapons, threatened and injured the inmates and left the house on an
alarm being raised, and in the courtyard stabbed one /?, who tried to seize them,
injuring him so that he died later on, it was held that this section was not applicable
but that the accused were guilty of offences under Ss. 457, 458 and 326 (y).

At the time of the committing of lurking housetrespass by night or
housebreaking by night : — Where the accused was one of a party of 4 men who
broke into the house of the complainant by night and, being discovered, were run-
ning away when a neighbour caught hold of the accused whereupon some of his
companions inflicted certain injuries upon the neighbours of which he died on the
spot, the Lahore High Court held that considering that the thieves had dangs in their
hands, s. 458 would be applicable, as that would amount to having made prepara-
tions for causing hurt to any person, and this section was not applicable because
the expression ‘ at the time of the committing of housebreaking by night ’ must
be limited jto the time during which the criminal trespass continues which forms
an element in house-trespass, which is itself essential to housebreaking, and cannot
be extended so as to include any prior or subsequent time (z).

461 . Whoever dishonestly or with intent to commit mischief,
breaks open or unfastens any closed receptacle
Dishonestly breaking w hich contains or which he believes to con-
ing property. tam property, shall be punished with im-

prisonment of either description for a term
which may extend to two years, or with fine, or with both.

Dishonestly — s. 24. Mischief — s. 425.

This section punishes the offence of dishonestly breaking open or unfastening
a closed receptacle containing property or the same offence when committed with
intent to cause mischief. The next section provides for an enhanced punishment
when the same offence is committed by rf person entrusted with the custody of
such receptacle. But when the offender steals the property which such a receptacle
contains, he will be guilty of theft.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge s — I ( name and office of Magistrate, etc.) hereby charge you (name of
accused) as follows: —

That you, yn or about the— — -dav of , at — — t

dishonestly (or with intent to commit mischief) broke open (or unfastened) a certain

closed receptacle , exhibit which contained (or which you believed to

contain) certain property, to wit , and that you thereby ehmmitted

an offence punishable under s. 461 of the Indian Penal Code, and within my
cognizance. ;

And I hereby direct that you be tried on the said charge.

(x) Ismail Khan, (1886) 8 A. 64 (050). ■

(y) Sed Rasul , (1916) P. R. No. 27 of 1916 (Cr.) : 18 Cr. L. J. 350 : 38 I. C.

734 .

(z) Mahummad, (1921) 2 L. 342 : 23 Cr. L. J. 164 : * 65 I. C. 628, following Taffir ,
(1881) P. R. No. 2 of 1881.

FORGERY

897

SEC. 462 ]

Dishonestly breaking open a receptacle : — “ The word 4 receptacle *
may include not only a room, a part of a room, or close, etc., but a box or close
package ” (a).

A human body, whether living or dead, cannot be the subject of theft under the
Indian Penal Code (b).

Where a certain person, who was an inmate of his uncle's house, broke open a
chest and took out property from it, the Allahabad High Court held that he could
not be convicted under s. 457 but under Ss. 461 and 378 (c).

462. Whoever, being entrusted with any closed receptacle
x> • t,™ . t which contains or which he believes to contain

Punishment for same . i « . <

offence when committed property, without having authority to open
by person entrusted same dishonestly, or with intent to com-
WI cus ° v ' mit mischief, breaks open or unfastens that

receptacle, shall be punished with imprisonment of either
description for a term which may extend to three years, or with
fine, or with both.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — Triable
by Court of Session, Presidency Magistrate, or Magistrate of the first or second
class.

Charge — same as set out under s. 461 adding ‘ being entrusted with a certain
closed receptacle ’ before * dishonestly,* etc., and * without having authority to
open the same * before ‘ and thereby committed an offence * etc.

CHAPTER XVIII.

Of Offences relating to, Documents and to Trade or

Property mark.

This Chapter deals with offences relating to documents and offences relating to
trade marks or property marks.

Ss. 463-477-A deal with offences relating to documents. Ss. 478-489 deal
.with Trade mark. Property mark and other false marks and Ss. 489-A to 489-D
deal with Currency Notes and Bank Notes.

S. 463 defines ‘forgery,’ s. 464 describes how a false document is made,
s. 465 provides punishment for forgery, s. 466 provides punishment for * forgery
of record of Court or of public register,* etc., s. 467 punishes forgery of valuable
security, etc* s. 468 provides penalty for forgery committed for the purpose of cheat-
ing, s. 469 provides a lesser penalty for forgery committed for the purpose of harm-
ing reputation, s 470 defines a 4 forged document,* s. 471 provides punishment for
using as genuine a forged document, Ss. 472, 473 and 474 provide punishment for
making or possessing counterfeit seals with intent to commit forgery punishable

(a) Morgan and Macphcrson, Penal Code, p. 408.

(b) Ramadhin, (1902) 25 A. 129 (130).

(c) m Tasada Hossein , (1874) 6 N. W. P. H. C. R. 301,

63

898 THE INDIAN PENAL CODE [CHAP. XVIII

under s. 467 ; Ss. 475 and 476 deal with specific instances of forgery, e.g. 9 counter-
feiting device or mark used for authenticating documents, whereas s. 477 provides
punishment for fraudulent cancellation, destruction, etc., of will, authority to adopt
or any valuable security defined in s. 467 ; and s. 477-A refers to falsification of
accounts.

S. 478 defines ‘trade-mark,’ s. 479 ^ defines * property mark,* s.^480 defines
* using a false trade-mark,’ s. 481 denfies 1 using a false property mark,’ s. 482 pro-
vides punishment for using a false trade mark or property mark, s. 483 punishes
counterfeiting a trade mark or property mark used by another and s. 484 provides
for an enhanced punishment as the property mark is counterfeited by a public. ser-
vant, s. 485 refers to the making or possession of any instrument for counterfeiting
a trade mark or property mark, s. 486 punishes selling goods marked with a counter-
feit trade mark or property mark. S. 487 provides penalty for making a false
mark upon any receptacle containing goods and s. 488 provides punishments for
making use of such false mark as mentioned in s. 487, and s. 489 deals with tamper-
ing with property mark with intent to cause injury.

The third sub-heading of the Chapter deals with counterfeiting currency notes
or bank notes punishable under s. 489-A; using as genuine forged or counterfeit
currency notes or bank notes punishable under s. 489-B and possession of forged
or counterfeit currency notes or bank notes punishable under s. 489-C and making
or possessing instruments or materials for forging or counterfeiting currency notes
or bank notes punishable under s. 489-D.

463. Whoever makes any false document or part of a docu-
ment, with intent to cause damage or injury,
orgc?1 to the public or to any person, or to support

any claim or title, or to cause any person to part with property,
or to enter into any express or implied contract, or with intent to
commit fraud or that fraud may be committed, commits forgery.

False document — s. 464. Injury — s. 44.

Document — s. 29. Public — s. 12.

Person — s. II.

Analogous law : — Forgery under the English common law was defined to be
“ the fraudulent making or alteration of a writing to the prejudice of another man’s
right” (d).

Forgery as defined in the Forgery Act, 1913, is the making of a false document
in order that it may be used as genuine (e).

” Forgery is making a false document, with intent to defraud. To make a false
document is (1) to make a document purporting to be what in fact it is not, (2) to
alter a document without authority in such a manner that if the alteration had been
authorised it would have altered the effect of the document, (3) to introduce into a
document without authority, whilst it is being drawn up, matter which, if it had been
authorised, would have altered the effect of the document, (4) to sign a document
(i) in the name of any person without his authority whether such name is or is not
the same as that of the person signing , fii) in the name of any fictitious person
alleged to exist, whether the fictitious person is or is not alleged to be of the same
name as the person signing, (ii'i) in a name represented as being the name of a
different person from that of the person signing it and intended to be mistaken

(d) 4 Blackstone, pp. 247, 248, followed in Eheworth. 9, East. 980.

(e) 3 and 4 Geo. V. c. 27.

SEC. 468 ]

FORGERY

899

for the name of that person, (iv) in the name of a person personated by the person
signing the document, provided that the effect of the instrument depends upon
the identity between the person signing the document and the person whom he
professes to be " (0*

Forgery is the fraudulent making of a written instrument which purports to be
that which it is not

“ Forgery must be of some document or writing. The instrument or some
part of it must be false in some material respect " (g).

Where, by the provisions of a treaty (confirmed by statute) with a foreign State,
the Crown undertakes upon requisition to deliver up fugitives to England who have
committed certain specified crimes in such foreign State, such crimes are to be
construed according to the definition of the law of England ; and if therefore a
fugitive has committed in such foreign State an act which, though it be one of such
specified crimes in such foreign State, is nevertheless not such a crime by the law
of England, the case is not within the Extradition Treaty (h).

44 Forgery is the false making of an instrument to be that which is not ; it is
not the making of an instrument which purports to be that it really is, but which
contains false statements. Telling a lie does not become a forgery, because it is
reduced into writing” (i).

Forgery is 44 a false making, a making malo animo , of any written instrument
for the purpose of fraud and deceit " (j).

“ Not only the fabrication and false making of the whole of a document, but a
fraudulent insertion, alteration or erasure, even of a letter, in any material part of a
true instrument, whereby a new operation is given to it, will amount to forgery,
and this even though the instrument is afterwards executed by another person
ignorant of the deceit " (k).

Scope : — This section defines the offence of forgery and in so doing prescribes
the intents necessary to that offence. The section contemplates two classes of
intents, and it is clear that it is not an essential quality of the fraud mentioned in the
section that it should result in or aim at the deprivation of property (1). The
definition of 4 forgery 4 in the Indian Penal Code is not as simple and clear as the
definition of 4 forgery ’ at common |^w (m). S. 464 may be read as a part of this
section (n). Under this section the making of a false document with any of the
4 intents * therein mentioned is forgery, and s. 464 sets forth when a person is said
to make a false document within the meaning of the Code (o).

Whoever makes any false document or part of a document:—

4 Making a false document * is described in the next section (s. 464). The term
4 document 4 is defined by s. 29, supra.

The simple making of a false document constitutes the offence of forgery under
this section and it is not necessary that it should be issued or made known to the
injury of a person's reputation either before the offence is completed or the offender

(f) Stephen's Digest of English Criminal law.

(g) Halsbury's Laws of England, Vol. IX. 711.

(h) Exparte Windsor , (1865) 10 Cox. 118.

(i) Per Blackburn, J., in Exparte, Charles Windsor, (1865) 10 Cox. 118 (123).

(j) 2 East P. C. 852.

(k) Russel, 8th Edn. \%>1. II. p. 1506.

(l) Abbas AH, (1896) 25 C. 512 (521) (F. B.) overruling Haradhan's case, (1892)
19 C. 380.

(m) Adaik Lammi v. Rama , (1908) 32 M. 90,

(n) Girdharilal, (1886) 8 A. 653 (662).

(p) AH Hassan , (1906) 3 A. L. J. 149.

000

THE INDIAN PENAL CODE

[CHAP. XVHI

13 liable to punishment. Under s. 464, Explanation 2, it is clear that a false docu-
ment may be made in the name of a fictitious persoj} (p). The essence of the
making of a false document is the intention of causing it to be believed that such
document was made, signed, sealed or executed by or by the authority of a person
by whom or by whose authority it was not made, etc, (q). The Lahore High Court
has held that there must be acts that constitute the document a false or fabricated
one, the case must fall within the definition of making a false document in s. 464
and such document must also possess a certain character or tendency as the
character described in s. 453 (r).

A bank pest bill cannot, in an indictment for forging or uttering, be described
as a bill of exchange. Discharging an indorsement and inserting another may be
described as altering an indorsement (s).

The prosecutor, Borwick, sold powders called ‘ Berwick’s baking powders *
and 4 Borwirk’s egg powders ' wrapped up in printed papers. The prisoner pro-
cured 10 COO wrappers to be printed similar to Borwick’s except that the name of
Borwick was omitted on the baking powders. In these wrappers the prisoner
enclosed powders of his own which he sold as Borwick's Powders and the jury found
that the wrappers so far resembled Borwick's as to deceive persons of ordinary
observation. ft was held that the prisoner could not be convicted of forgery, though
he was liable to be indicted for obtaining money by false pretences (t).

Forging an indenture of apprenticeship and a receipt for the apprentice fee
with intent to defraud the stewards of the feast of the sons of the clergy, is within
the statute Geo. If, c. 25 which make forgery a capital offence (u).

Where A , who was not the son, natural or adopted of the deceased fi, executed
a deed of mortgage of certain properties of B in favour of C and in the body of the
document A was desc> ibed as the son of B t though no such description appeared
in the signature, the Madras High Court held that it would be going too far to hold
that whenever an executant of a document attaches a false description to his name
he comes within the purview of s. 464 (v).

The Calcutta High Court has held that the part of a document in order to come
within the definition of a false document must be dishonestly or fraudulently made,
signed, sealed or executed by the person who is charged, and it must be made with
the intention of causing it to be believed that juch document or part of a document
was made, signed, sealed and executed by or by the authority of a person by whom
or by whose authority he knows that it was not made, signed, sealed or executed,
and further held that making a false document is an offence under s. 465 and causing
a false document to be made is an act at most of abetment (w),

A person may be convicted of using as genuine a document which he knew to
pe forged though the document was produced for the first time in a civil suit and
*l W j S H ya C0J)y a copy .The forgery of a copy of a document comes within
the definition of forgery as contained in s. 463 (y).

(P)

(q)

(r)

A. I. R.

(s)

Griffiths,

(t)

(u)

(v)

(w)

681.

Ji

20 Cr. L. J. 142 : 49 I. C. 174.

(374) : 25 Cr. L. . 337 : 77 I. C. 226 :

Shi/ait AH, (1868) 10 W. R. (Cr.) 61.

Lachman Lai, (1918) 4 Pat. L. J. 16 :

Badan Singh, (1922) 3 Lah. 373
(1923) Lah. 11.

Birkett, (1823) R. and R. 251 referred to in Baskerville, (1916) 2 K. B 658 •
(1858) Dears, and B. 548.

John Smith , fl888) 8 Cox. 32.

Mary Jones and Henry Palmer, (1785) 1 Leach 3<>6.

Adaikalammi v. Raman , (1908) 32 M. 90.

Haidar Alt Pradhania, (1912) 17 C. W. N. 354 : 14 Cr. L. J. 129: 18 I. C.
Nijum Alt, (1866) 6 W. R. (Cr.) 41.

Essan Ckander Dutt v. Prannath Chaudhury, (1863) W. R. Gap. No. (F. B.)

FORGERY

001

SEC. 463 ]

* with intent to (a) cause damage or injury to the public or to any per*
son, or (b) to support any claim or title, or (c) to cause any person to part
with property, or (d) to cause any person to enter into any express or implied
contract, or (e) to commit fraud, or that fraud may be committed To

constitute the offence of forgery as defined by s. 463 it would not be enough to prove
that the document might be injurious or damaging to another person but it must be
proved that it was the intention of the accused that it should injure another (z).
The Calcutta High Court by a Full Bench held that where a document is made
for the purpose of its being used to deceive a Court of Justice, it is made with the
intention of being used for that purpose (a). A general intention to defraud without
the intention of causing wrongful gain to one person or wrongful loss to another,
would, if proved, be sufficient to support a conviction (b). S. 464 shows that the
false document referred to in s. 463 must, to constitute forgery, have been made
* dishonestly or fraudulently * which are defined in Ss. 24 and 25 of the Code respec-
tively (c). The essence of the offence of cheating is a fraudulent or dishonest
intention ; and the act done towards the commission of the offence, which is requisite
to establish the attempt to cheat, must be done with a fraudulent or dishonest intent.
In construing Ss. 24 and 25 of the Code the primary intention must be looked at (d).
The Allahabad High Court held that the claim in s. 463 is not limited to a claim to
property. The claim may be a claim to anything and it must have been rrade
with intent to support a claim within the mearing of this section (e). Where a
student in order to obtain admission to the Matriculation Examination fabricated
the Headmaster’s signature to a certificate purported to have been signed by the
Head Master and forwarded it to the Registrar, the Madras High Court by a Full
Bench held that the offence of forgery is defined in Ss. 463 and 464 of the Code
and in order to constitute the offence, the document must be false in fact, it must
have been made dishonestly or fraudulently within the meaning of these words
as used in s. 464 and it must have been made with one of the intents specified in

s. 463 The offence is complete if a document, false in

fact, is made with intent to commit fraud, although it may not have been made
with any of the other intents specified in s. 463 and upheld the conviction of the
accused (f).

The mere signing of a telegram in another’s name, where it is net shown to have
been done with intent to injure him and where it does not actually injure him, does
not constitute the offence of forgery, even though the signature may have been made
without the authority of such person (g).

* with intent to commit fraud 9 : — The Calcutta High Court by a Full Bench
decision held that deprivation of property, actual or intended, is not a necessary
ingredient of the 4 intent to defraud ’ and further held that the definition of * fraud-
ulently * in s. 25 is obviously imperfect. The word ‘ fraudulently ’ should not be
confined to transactions of which deprivation forms a part (h). Le Blanc, J., held :

(z) Feda Hossein , (1881) 10 C. L. R. 184. #

(a) Haradhan, (1887) 14 C. 513 (F. B.).,

(b) Dhanum Kasee, (1882) 9 C. 53 (61); 11 C. L. R. 169, following Nash, 2
Dearsly's C. C. R. at p. 500.

(c) Sheo Dayal, (1885) 7 A. 459 (461).

(c) Haradhan, (1892) 19 C. 380 overruled in Abbas AH, (1898) 25 C. 512 F. B. ;
Srinivasan . (1902) 25 M. 726; Bala, (1892) Rat. Unrep. Cr. C. 627.

(e) Sashibhusan, (1893) 15 A. 210 (217); Khandu Singh, (1890) 22 B. 768;
Kotamraju V enkatayadu, (1905) 28 M. 90 (98) F. B.

(f) Kotamraju Venkafrayadti , (1905) 28 M. 90 (05, 96) F. B.

(g) Kali Prasad Banerjee v. Bharat Chandra Banerjee, (1914) 16 Cr. L. J. 76
26 I. C. 668.

(b) Abbas AH, (1898) 25 C. 512 F. B. overruling Haradhan, (1892) 19 C. 380
followed in Kotamraju V enkatrayadu, (19Q5) 28 M. 90 (96) F. B,

902

THE INDIAN PENAL CODE

[CHAP, XVI11

" By fraud is meant an intention to deceive whether *it be from any expectation of
advantage to the party himself or from ill-will is immaterial’* (i). “ Where there is
an intention to deceive and by means of this deceit to obtain an advantage, there
is fraud and if a document is fabricated with such intent it is forgery ” (j). The
Calcutta High Court did not accept the restricted interpretation of (i) * * 4 defraud ’ given
by Mr. Justice Banerjee in the above case but held that the expression 4 intent to
defraud * implies conduct with intention to deceive and thereby to injure ; in other
words, 4 defraud * involves two conceptions, namely deceit and injury to the person
deceived, i.e., infringement of some legal right possessed by him, but not necessarily
deprivation of property (k). In re Shivanaxda Mudalis case (1) Devadoss, J. #
after reviewing authorities held : 44 It is sufficient if the doing of it is intended to
defraud some one without ultimately acquiring unlawful gain or causing wrongful
loss ,*' and Waller, J., held : 44 Nor does the word * fraudulently ’ necessarily import
an intention to cause wrongful loss. If a man intends to gain an unfair advantage
by deceitful means and uses a false document, for that purpose, his conduct is, I
think, fraudulent.”

Where a person lawfully entitled to possess arms and ammunition signed the
prescribed certificate of the purchase of the same in the name of another and gave
a false address and thereby deceived the gunsmith and the Government and deli-
berately defeated the object of the certificate, the Calcutta High Court held that
the accused was guilty of forgery, his act having been done 4 fraudulently ’ if not
‘dishonestly* (m). Where the accused, who were postmaster and treasurer re-
spectively of a Post Office, were charged under Ss. 409, 465, 471 and 477-A and the
alteration of accounts showed the receipt of a sum of money which had been crimi-
nally misappropriated by the Postmaster and it was found that such alteration was
for the purpose of removing the evidence of crime, but there was no inent to defraud,
the Calcutta High Court held that the offence did not come under either s. 465 or
s. 477-A (n). The vendees of a plot of land altered the number by which the land
was described in a deed of sale because such number was not the right number and
then they used the deed of sale as evidence in a suit. It was held that such alteration
did not amount to forgery within the meaning of s. 463 as the intention to cause
wrongful loss or wrongful gain or to defraud was wanting, and it was further held
that in producing the sale deed in the civil Courts the prisoners were not fraudulently
or dishonestly using as genuine a document which they knew to be a 4 forged docu-
ment * within the contemplation of law (o). Where the creditors of Syed Husain,
a police constable, applied to his superior officer that Rs. 2 might be deducted from
his pay until the debt was satisfied and the constable produced a receipt of Rs. 18
to his superior officer to save his pay from being cut to be paid to his creditor and
it subsequently appeared that the accused constable had altered the receipt for
Rs. 8 by adding figure 4 1 it was held that the appellant used the altered receipt*
in order to induce his superior officer to refrain from doing an illegal act, e.g ., the
deducting of the salary and it did not follow from that that he necessairly con-
templated setting up altered receipt to defeat his creditor’s claim, and accordingly

(i) Haycroft v. Creasy, (1886) 2 East 92 (108), followed in Vithal Narayan, (1886)
13 B. 606 (Note) ; Khandu Singh , (1896) 22 B. 768, following in Lalit Mohan Sarher,
(1894) 22 C. 313.

(i) Mahomed Saeed Khan, (1898) 21 A. 113 (115), followed in Mohit Kumar
Mukherjee, (1926) 62 C. 881 : A. I. R. (1926) C. 89.

(k) Surendra Nath Ghose, (1910) 38 C. 75 : 14 C. W N. 1076 : 12 C. L. J. 277,
distinguished in Mohit Kumar Mukherjee, (1926) 52 C. 881 but followed in Ahmed
AH, (1925) 42 C. L. J. 215 (218) : A. I. R. (1926) £al. 224.

(l) 27 Cr. L. J. 994 : 96 I. C. 850 : A. I. R. (1926) Mad. 1072.

(m) Causley, (1916) 43 C. 421, followed in Toshack, (1845) 1 Den. C. C. R. 492,
DhunumKazi, (1882) 9 C. 53 and Abbas AH, (1897) 25 Ca! H 512 (F. B.).

(n) Jyotish Chunder Ghose, (1909) 36 C. 955.

(o) Fuieh. (1883) 5 A, S17.

SEC. 463 ]

FORGERY

903

the conviction was set aside (pX A signed B*s name to petitions presented by G
to the mamlatdar requesting his summary assistance under Regulation XVII of 1827
for the recovery of rents from B’s tenant. It was held that As signipg of B*s
name, cannot without an extreme straining of law be brought within the definition
of forgery (q). A Postmaster misappropriated a sum of money and in order to save
himself, had forged a receipt as a voucher in support of payment. He was convicted
under Ss. 409 and 471. The Madras High Court upheld the conviction adding
that there was clearly an intention to cause wrongful loss to Government by con-
veying the false impression that the receipt contained an acknowledgment of
payment by the payee and the fact of misappropriation showed that there was an
intention of causing wrongful gain to himself. A debtor who forges a release to
screen himself from liability to pay the debt cannot be said not to be guilty of
forgery, because he intended by the forgery to cover a dishonest purpose (r).
Where the prisoner altered a police report in order to screen his own negligence, the
Allahabad High Court held : “ We do not consider that such conduct falls within the
definition of forgery in the Indian Penal Code. The prisoner did not intend to
cause damage or injury to any one nor did he make the alteration fraudulently or
dishonestly” (s).

Intention under the English law An indictment for forgery under the
English statute 24 & 25, vict. c. 98, s. 28, must allege an intent to defraud (t).

Sir James Stephen observes : “ There is little danger in saying that whenever
the word 4 fraud * or * intent to defraud * or * fraudulently * occurs in the definition
of a crime, two elements at least are essential to the commission of the crime, viz.,
first , deceit or an intention to deceive or in some cases mere secrecy ; and secondly ,
either actual injury or possible injury or an intent to expose some person either to
actual injury or possible injury or to a risk of possible injury by means of that
deceit or secrecy. This intent, I may add, is very seldom the only or the principal
intention entertained by the fraudulent person whose principal object in nearly

every case is his own advantage A practically conclusive test as

to the fraudulent character of a deception for criminal purposes is this : Did the
author of the deceit derive any advantage from it which he could not have had if the
truth had been known ” (u).

44 A representation to be fraudulent must be made malo animo. It is not
necessary that the party should gain or intend to gain anything for himself by it,
but if he makes it with the malicious intention that another should be injured by it,
he shall make compensation in damages 44 (v).

Where a forged cheque on the W. Bank was presented for payment at S. Bank
where the supposed drawer never kept cash, it was held that there was sufficient
evidence of an intent to defraud the partners of the S. Bank, although there was no
probability of their paying the cheque, even if it had been genuine (w). In a case
of forgery, the fact that the prisoner has given guaranty to his bankers to whom
he paid a forged note, to a larger amount than the note, does not completely nega-
tive an intent to defraud them as to withdraw the case from the consideration of
the jury (x). If a person, at the time he uttered a bill of exchange with a forged

(p) Syed Husain, (1885) 7 A. 403.

(q) Bhavanis hanker , (1874) 11 Bom. H. C. R. (Cr.) C. 3.

(r) Sabapati, (1888) 11 M. 411, where Jiwanand, (1882) 5 A. 221 was distinguished.

(s) Lai Gumal, (1870) S*N. W. P. H. C. R. 11 ; Shankar, 4 Bom. 657 ; Jiwanand ,
(1882) 5 A. 221 ; Mazher Husain , (1882) 5 A. 553 ; Giridhari Lai , (1886) 8 A. 653 ;
Abdul Hamid, (1886) 13 C. 349.

(t) Power, (1872) 12 Cox. 235.

(u) Stephen's History of Criminal Law, Vol. II, p. 121.

(\) Per Lawrence, J. "in Hay croft v. Creasy, (1801) 2 East. 92 (107).

(w) Crowther ; (4832) 5 C. and P. 316.

(x) James, (1836) 7 C.%ad P.553.

904

THE INDIAN PENAL CODE

[CHAP. XVIII

acceptance on it, knew that acceptance to be forged, and meant the bill to be taken
as a bill with a genuine acceptance upon it, the inevitable conclusion is that be
intended to defraud (y). In a case of forgery it is not required, in order to consti-
tute in point of law, an intent to defraud, that the party committing the offence
should have had present in his mind an intention to defraud a particular person,
if the consequences of his act would necessarily or possibly be to defraud any
person, but there must at all events be a possibility of some person being de-
frauded by the forgery (z). 'Where the prisoner was indicted for forging a transfer
of railway shares from H to himself, with intent to defraud and the only evidence
of H s title was the register of shareholders in which his name was inserted, it was
held that though the register did not prove H's title to the dividend, it was admissible
in evidence, that it was not necessary to prove H s title as a shareholder and
further that the direction was sufficient, considered with reference to the intent
to defraud (a). On the trial of an indictment for uttering a forged bill of exchange,
if the jury are satisfied that the prisoner uttered the bill as a true bill, meaning it
to be taken as such, and at that time knew it to be forged, they ought to find,
as a necessary consequence of law, that the prisoner intended to defraud, it they are
satisfied on the two other points (b). It is not necessary to prove that any person
was actually defrauded by the forgery (c).

The offence of disposing and putting away forged bank-notes is complete
though the person to whom they were disposed of was an agent for the bank to
detect utterers, and applied to the prisoner to purchase forged notes, and had
them delivered to him as forged notes for the purpose of disposing of them. It is
sufficient to state in the indictment that the prisoner disposed of the note with
intent to defraud the bank, he knowing it at the time to be forged (d).

Uttering a forged stock receipt to a person, who employed the prisoner tc buy
stock to that amount and advanced the money, is sufficient evidence of an intent
to defraud that person ; and the oath of the person to whom the receipt was uttered,
that he believes the prisoner had no such intent, will not repel the presumption of
an intention to defraud (e). Forging a bill payable to the prisoner’s own order, and
uttering it without indorsement as a security for a debt is a complete offence (f).

Forgery— to conceal previous fraud A kulkarni misappropriated certain
moneys paid to Government as irrigation cess*. The accused helped him in forging
signatures in receipts forged by him. The Bombay High Court in convicting the
accused held that the concealment of an already practised fraud is a fraud (g). This
view was dissented from by the Allahabad High Court in the following cases (h).
Where a treasury accountant was convicted of offences under Ss. 218 and 465 and
it was found that what the accused wanted and what was in his mind was to stave
off the evil day of the discovery of the previous fraud, and to save himself or the
actual perpetrator of that fraud from legal punishment, and for that purpose and

(y) Cooke , (1838) 8 C. and P. 582.

(z) Per Creswcll, J., in Marcus, (1840) 2 C. and It. 350.

(a) Nash, (1852) 2 Den. C. C. 493 : 21 L. J. M. C. 147.

(b) Hill, (1838) 8 C. and P. 274.

(c) Ward, (1727) 2 East P. C. 801 (802).

(d) Gilbert Holden, (1809) R. and R. 154; Marcus, (1846) 2 C. and K. 350;
Hoatson , (1847) 2 C. and K. 777.

(e) William Sheppard, (1810) R, and R. 109 ; Mary Mazafora, (1815) R. and R-

291. «

(f) John Birkett, (1805) R. and R. 86; Trenfield, 1 F. and F. 43.

(g) Balkrishna Vaman Kulkarini, (1913) 37 B. 060 ; 15 Bom. L. R. 708 : 14
Cr. L. J. 518 : 20 I. C. 998, following Lalil Mohan Sarker, (1895) 22 C. 313 ; Rash -
behary Das, (1908) 35 C. and Sabapati , (1887) 11 M. 411 and dissenting from Anant
Narayan, (1904) 6 Bom. L. R. 94.

(h) Lai Gaumul, (1870) 2 N. W. P. H. C. R. 50 ; Jiwanmd, (1883) 5 A. 221 ;

Girdhtmlal, (1886) 8 A. 653. - . * » *

FORGERY

905

SEC. 464 ]

with that intention he made false reports as a public servant and not with intent
to cause loss, it was held that the accused could not be convicted of forgery but he
was guilty of an offence under s. 218 (i). In a case where accounts were framed
in such a way as to conceal liability and to present an untrue state of affairs the
Calcutta High Court held that it would be difficult to say that under the circum-
stances the intent to defraud had been made out in its true legal sense (j). In
another case where a process-server put in an Attakshi with false signatures in
order to defraud a District Munsiff into excusing his delay in returning processes,
it was held by the Madras High Court that such conduct came within s. 464 and
so the conviction was upheld (k).

Making a false docu- 464. A person is said to make a false
ment - document —

First. — Who dishonestly or fraudulently makes, signs, seals
or executes a document or part of a document, or makes
any mark denoting the execution of a document, with
the intention of causing it to be believed that such
document or part of a document was made, signed,
sealed or executed by or by the authority of a person
by whom or by whose authority he knows that it was
not made, signed, sealed or executed, or at a time at
which he knows that it was not made, signed, sealed or
executed ; or

Secondly. — Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part thereof, after it has been
made or executed either by himself or by any other
person, whether such person be living or dead at the
time of such alteration ; or

Thirdly . — Who dishorfestly or fraudulently causes any
person to sign, seal, execute or alter a document, know-
ing that such person by reason of unsoundness of mind
or intoxication cannot, or that by reason of deception
practised upon him, he does not know the contents of
the document or the nature of the alteration.

* Illustrations .

(а) A has a letter of credit upon B for rupees 10,000, written'by Z. A, in order
to defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000, intending
that it may be believed by B that Z so wrote the letter. A has committed forgery.

(б) A f without Z*s authority, affixes Z’s seal to a document purporting to be a
conveyance of an estate from Z to A, with the intention of selling the estate to B and
thereby of obtaining from B the purchase-money. A has committed forgery.

(i) Girdkarilal, (1886) 8 A. 653.

(j) Jyotish Chandra, (1909) 36 C. 955 distinguishing the case of Lalit Mohan
Sircar, (1894) 22 Cal. 313, and the case of Rashbehary Das , (1908) 35 Cal. 450.

(k) Kamachinatha PUlai, (1918) 42 M. 559, following the case of Sabapati ,
(1888) 1 1 Mad. 411 ; Rashbehari , (1908) 35 Cal. 450 and,doubting the cases of Jiwanand,
(1883) 5 All. 221 ; Girdhari Lall , (1886) 8 /ill. 653.

900 THE INDIAN PENAL CODE [CHAP. XVIII

(c) A picks up a cheque on a banker signed by B, payable to bearer, but with-
out any sum having been inserted in the cheque. A fraudulently fills up the cheque
by inserting the sum of ten thousand rupees. A commits forgery.

(d) A leaves with B t his agent, a cheque on a banker, signed by A , without
inserting the sum payable and authorized B to fill up the cheque by inserting a sum
not exceeding ten thousand rupees for the purpose of making certain payments.
B fraudulently fills up the cheque by inserting the sum of twenty thousand rupees.
B commits forgery.

(e) A draws a bill of exchange on himself in the name of B without B's authority,
intending to discount it as a genuine bill with a banker and intending to take up the
bill on its maturity. Here, as A draws the bill with intent to deceive the banker by
leading him to suppose that he had the security of B, and thereby to discount the
bill, A is guilty of forgery.

(/) Z’s will contains these words — " I direct that all my remaining property be
equally divided between A t B and C. M A dishonestly scratches out B's name,
intending that it may be believed that the whole was left to himself and C. A has
Committed forgery.

(g) A endorses a Government promissory note and makes it payable to Z or his
order by writing on the bill the words M Pay to Z or his order ” and signing the
endorsement. B dishonestly erases the words *' Pay to Z or his order, and thereby
converts the special endorsement into a blank endorsement. B commits forgery.

(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z
of his estate, executes a conveyance of the same estate to B, dated six months earlier
than the date of the conveyance to Z , intending it to be believed that he had
conveyed the estate to B before he converted it to Z. A has committed forgery.

(0 Z dictates his will to A. A intentionally writes down a dilferent legatee
from the legatee named by Z, and by representing to Z that he has prepared the will
according to his instructions, induces Z to sign the will. A has committed forgery.

(j) A writes a letter and signs it with B’s name without B’s authority, certifying
that A is a man of good character and in distressed circumstances from unforeseen
misfortune, intending by means of such letter to obtain alms from Z and other persons.
Here, as A made a false document in order to induce Z to part with property, A has
committed forgery.

(A) A without B’s authority writes a letter and signs it in B’s name certifying
to A's character, intending thereby to obtain employment under Z. A has com-
mitted forgery, inasmuch as he intended to deceive Z by the forged certificate, and
thereby to induce Z to enter into an express or implied contract for service.

Explanation i. — A man’s signature of his own name may
amount to forgery.

Illustrations.

(a) A signs his own name to a bill of exchange, intending that it may be believed
that the bill was drawn by another person of the*, same name. A has committed
forgery.

«-

(b) A writes the word “ accepted "on a piece of paper and signs it with Z’s
name, in order that B may afterwards write on the paper a bill of exchange drawn
by B upon Z, and negotiate the bill as though it had been accepted by Z. A is
guilty of forgery ; and if B, knowing the fact, draws the bill upon the paper pursuant
to A ’s intention, B is also guilty of forgery.

(c) A picks up a bill of exchange payable to the brder of a different person of
the same name. A endorses the bill in his own name, intending to cause it to be
believed that it was endorsed by the person to whose order it was payable : here
A has committed forgery.

(d) A purchases an estate sold under execution of a ‘decree against B. B, after
the seizure of the estate, in collusion with Z, executes a lease of the estate to Z at
a nominal rent and for a long period, ana dates the lease six months prior to the

FORGERY

907

SEC. 464 ]

seizure, with intent to defraud A , and to cause "it to be believed that the lease was
granted before the seizure. B, though he executes the lease in his own name, com-
mitts forgery by antedating it.

(e) A, a trader, in anticipation of insolvency, lodges effects with B for A's
benefit, and with intent to defraud his creditors ; and in order to give a colour to
the transaction, writes a promissory note binding himself to pay to B a sum for
value received, and antedates the note, intending that it may be believed to ' have
been made before A was on the point of insolvency. A has committed forgery under
the first head of the definition.

Explanation 2. — The making of a false document in the name
of a fictitious person, intending it to be believed that the document
was made by a real person, or in the name of a deceased person,
intending it to be believed that the document was made by the
person in his lifetime, may amount to forgery.

Illustration .

A draws a bill of exchange upon a fictitious person, and fraudulently accepts the
bill in the name of such fictitious person with intent to negotiate it. A commits
forgery.

Clause 1 — * dishonestly or fraudulently 9 — A Full Bench decision of the
Calcutta High Court has held that the word ‘ dishonestly ’ has been defined by s. 24
and the word ‘ fraudulently 9 by s. 25. The word ‘ defraud * is of double meaning
in the sense that it either may or may not imply deprivation. The word ‘ fraudulent-
ly * is used in s. 471 and s. 464 together with the word ‘ dishonestly * and presumably
in a sense not covered by the latter word. If, however, it be held that ‘ fraudulently*
implies deprivation either actual or intended, then apparently that word would
perform no function which would not have been fully discharged by the word
‘ dishonestly * and its use would be a mere surplusage. So far as such a considera-
tion carries any weight, it obviously inclines in favour of the view that the word
* fraudulently * should not be confined to transactions of which deprivation of
property forms a part.

“S, 463 defines the offence of forgery and the section contemplates two
classes of intents, and it is clear that it is not an essential quality of the fraud
mentioned in the section that it should' result in or aim at the deprivation of pro-
perty.

“ If this be so, it cannot be supposed that the definition of a false document,
which is but a part of the definition of forgery, requires as a condition of criminality
an intent different in its quality and its aims from that prescribed by s. 463.

“ It appears to us, therefore, that deprivation, actual or intended, is not a
necessary ingredient of the intent to defraud referentially imported into s. 464, and
by a similar train of reasoning we are led to the like conclusion as to the true con-
struction of s. 471 *’ (1). The above case was followed by a Full Bench of the Madras
High Court, (m) In that case the accused in order to obtain admission to the
Matriculation Examination as a private candidate fabricated the signature of a Head
Master to a certificate of character and age, which he was required to produce
under the University regulations and forwarded it to the Registrar. It was held
by the majority of the Judges that the accused committed the offence ot forgery.
It was held in that case that t|je offence of forgery is complete if a document, false,
in fact, is made with intent to commit a fraud, although it may not have been made
with any of the other intents specified in s. 463. Those decisions, which proceed
on the ground that an act is not fraudulent unless it causes or is intended to cause

(1) * Abbas Ali t (1896) 26 C. 612 F. Bt (521) overruling Haradhan , (1892) 19 C.
380.

908

THE INDIAN PENAL CODE [ CHAP. XVIII

loss or Injury to some one, seem to take too narrow a view of the meaning of the
word 4 fraudulently * as. used in the Code. The act of the accused in such circum-
stances is fraudulent not merely by reason of the advantage which he intended to
secure for himself by means of the deceit but also by reason of the injury which
must necessarily result to the University and through it to the public from such
acts if unrepressed (m).

In order to constitute an offence of forgery the document must be made
dishonestly or fraudulently. In order to be fraudulent there must be some
advantage on the one side with a corresponding loss on the other (m 1 )*

* makes * : — The word ‘ makes # is taken from the English statute Will IV,
c. 66, s. 16 re-enacted as 24 and 25 Viet., c. 98, s. 17 of which runs as follows : —

“Whoever makes upon any plate whatsoever any werd, number the

impressions taken from which shall resemble any part of a bank-

note/’ etc.

The taking of a ' positive ’ impression of a note on glass by means of the
photographic process is a ‘ making ’ of a note within the meaning of the statute
24 and 25 Viet., c. 98, s. 19, although the impression so taken is evanescent and
although it cannot be printed or engraved from until it has been converted into a
4 negative * (n). It is forgery within the meaning of the English statute to make a
deed fraudulently with a false date, when the date is a material part of the deed,
although the deed is in fact made and executed by and between the persons by and
between whom it purports to be made and executed fo).

A person consenting to act under a Mookternamah and attaching his name
in token of such consent does not become a maker of the Mookternamah, or a
forger if the Mookternamah turns out to be forged Ip). Garth, C. J., held:
44 1 consider the ‘miking’ of a document, or part of a document, does not mean
* writing * or ‘ printing ’ it, but signing or otherwise executing it, as in legal phrase
we speak of ‘ miking an indenture ’ or 4 making a promissory note * by what is not
meant the writing out of the form of the instrument, but the sealing or signing it
as a deed or note. The fact that the word 4 makes ’ is used in the section in con-
junction with the word 4 signs/ 4 seals ’ or 4 executes/ or makes any mark 4 denoting
the execution * etc., seems to me very clearly to indicate that this is its true mean-
ing ’* (q). The word 4 mikes ’ in this section does not mean anything other than
4 makes/ that is to say, creates or brings into existence, or that a person cannot
forge a document which purports to be a will unless the will has been completed by
the addition of the date (r). Where the accused who was an accountant in
the MunsifFs court and whose duty was to make entries of receipts in the chalan
register, made false entries in the register in order to conceal a previous fraudulent
or dishonest act, the Calcutta High Court held that the accused was in reality fur-
thering the fraud that had already been committed and as his intention was to de-
fraud he was guilty under s. 477-A (r).

(m) Kolamaraju V enkatrayadu , (1905) 28 M. 90 (F. B.) where Haradhan, (1892)
19 C. 380, followed in Bala, (1892) CJnrep. Cr. C. 627 and Srinisasam , (1902) 25 M.
726, were not followed.

(ml) Sanjiv Ratnappa, (1932) 56 B. 488: 34 Bom. L. R. 1090: 34 Cr. L. J.
357 : A. 1. R. (1932) B. 777.

(n) Peter Rinaldi, (1863) Leigh and Cave's Crown Cases 330.

(o) William Ritson, (1869) L. R. 1 C. C. R. 200.

(p) Burjo Barick, 5 W. R. (Cr.) 70. «

(q) Riasat A li, (1881) 7 C. 352 (355), followed in Chandi Prasad v. Abdur Rahman ,
(1894) 22 C. 131 (138).

(r) Chaim Mallik , (1928) 10 L. 265: A. I. R. (1928) Lah. 681, dissenting from

Riasat Ali, 7 C. 352 and following Kristappa Khandappa, (1925) 27 Bom. L. R. 599
and Jawahir Thakur, (1916) 38 A. 430. •

(r) Rashbehari Das, (1908) 35 C. 450* dissenting from Jiwanand , (1882) 5 A*
221, Oiridhari Lai, (1886) 8 A. 633, Abdul Hamid, (1886) 13 C. 349.

FORGERY

909

SEC. 464 ]

Where a prisoner was requested by his creditor to make an entry in th$ account
book of the latter acknowledging his liability of debt, but he made an eritrjr of pay-
ment in a language not known to the complainant creditor, it was held by the Madras
High Court that the offence committed was not forgery but an attempt to cheat, for
the entry was not made with the intention of inducing the belief that such docu-
ment was made by or by the authority of one who did not make it or give such
authority (s).

It has been held in England that putting the name of a painter upon the copy
of one of his pictures, in order that it may be passed off as the original, is not
forgery at common law. But such passing off of the copy of the picture as the
original and obtaining money by means of such false representation, is cheating at
common law (t).

* signs, seals or executes * : — A , who was not the son, natural or adopted, of
the deceased B, executed a deed of mortgage of certain properties of B in favour of
C. In the body of the document A was described as the son of B, though no such
description appeared in the signature. A was known to C for a long time, and A
had no intention of causing it to be believed that the document was executed by any
other person. It was held that A was not guilty of making a * false document *
within the meaning of s. 464 (u).

Where a prisoner, who appealed to the Commissioner from an order of an
Assessor under Act XXI of 1867, filed stamped paper for a copy of the Assessor’s
decision after the period of appeal had elapsed, but on appeal, averred that he filed
the stamped piper before the time for appealing had elapsed, and fraudulently ob-
tained a certificate to that effect which was antedated, it was held that he was
guilty of having abetted the commission of forgery of a document within Ss. 463
and 464, cl. (1) (v).

Where an accused made an endorsement on the back of a bill presented to
him on the 25th Jeyt to the effect 17th Jeyt through B, Rs. 501, it was held by a
Full Bench of the Calcutta High Court that he could not be convicted of forgery
as the circumstances of the case did not justify an inference that the endorsement
was made by the accused with the intention of causing it to be believed that it was
made on the 17th and not on the 25th of Jeyt, when in fact it was made. In this
case it was found as a matter of fact that the accused paid the sum of Rs. 501 on
the 17th Jeyt (w). 1

Where a person impersonated an examinee at a University examination, got a
hall ticket and signed and handed answer papers in his name, it has been held by
the Madras High Court, that the person committed the offences of forgery and
cheating by personation ; because his acts clearly indicate an intention on his
part to lead the University authorities to believe that the examination pry ers were
answered by the examinee and by this means to endeavour to procure the grant
of a certificate, which if granted, would have been obtained by fraud ^x).

Where the accused was charged with fabricating two false letters to secure
a post by deceiving the Collector as well as the Sub-Divisional Officer of a district,
and was further charged with fabricating a third document, e.£., a letter to screen
himself from detection of fraud, the Calcutta High Court, "while upholding the

(s) Kunja Nayar, (1888) 12 M. 114.

(t) Closs, (1857) 7 Cox. 494.

(u) AdaiKalammai v. Rafoan, (1908) 32 M. 90 ; Jawala Ram , (1895) P. R. No. 12
of 1895.

(v) Sookomoy Chose , (1886) 10 W. R. (Cr.) 23; Ganesh Bhikaji, (1895) Rat.
Unrep. Cr. C. 772.

(w) Hurjee Mull v. Ali Sircar, (1903) 8 C. W. N. 278 (F. B.) .

(x) . Appasami , (1889) \2 M. 151, followed in Sashi , (1893) 15 A. 210.

THE INDIAN PENAL CODE

910

[CHAP. XVIII

conviction on the first two counts, set aside the conviction in the case of the last
document (y).

Where A wanted to take some contract from the Municipal Board and found
that his application would not be considered until he obtained an order to the
effect that he was solvent, and forged a receipt that purported to be a receipt from
a creditor for payment of debt which the creditor had in fact written off as ir-
recoverable and was convicted under Ss. 465, 471, the Allahabad High Court
upheld the conviction holding that the accused by that receipt intended to obtain
a wrongful gain to himself (z).

Where the accused used two certificates — one a wholly fabricated document
and the other an altered one, in order to secure a situation in the police force at
Poona, the Bombay High Court upheld the conviction under Ss. 463 and 471 (a).

A person lawfully entitled to possess arms and ammunitions signing the
prescribed certificate of purchase of the same in the name of another with an
address not his own, and thereby deceiving the gunsmith and the Government
and defeating the object of the certificate, commits forgery, his act having been
done * fraudulently * if not ‘ dishonestly ' (b).

In a case where the accused fabricated two police orders in order to secure the
delivery of a runaway woman to her husband, it was held by the Allahabad High
Court that the accused had acted fraudulently in fabricating the documents and had
committed an offence under s. 465 (c).

Where the accused in collusion with the judgment-debtor signed other people's
names who were co-decree-holders with him, in a Vokalatnama, by which he also
instructed a vakil to apply for recording of the payment of dues under the decree
and the striking off of the case, the Calcutta High Court held that a forgery had
been committed (d).

Where a person in the employment of another signed the name of the master
in a plaint and filed it in Court and when the master ratified the act of the servant,
the Patna High Court held that the person was not guilty or forgery inasmuch as he
did not make the signature of his master on the plaint dishonestly or fraudulently (e).

A signed B’s name to petitions presen/ed by G to the mamlaldar, requesting
his summary assistance, under Reg. XVII of 1827, for the recovery ot rents from
B’s tenants. It was held that even if A had no authority from B to sign his name,
and if A wished to deceive the mamlatdar into the belief that it was B himself who
had signed the petitions still, if there had been no intention to defraud any body
or if no wrongful gain or wrongful loss could have been caused to A or B, ^4’s act
did not constitute forgery within the meaning of the Indian Penal Code (f).

Where a person signed a telegram in another’s name without any intent to
injure him and when it did not actually injure him, the Calcutta High Court held
that the person r did not commit the offence of forgery (g).

(y) Abdul Hamid , (1886) 13 Cal. 349 ; Abdul Razak, (1896) P. R. No. 2 of 1896 ;
Khandu Sing , (1896) 22 B. 768.

(z) Abdul Ghaffur, (1920) 43 A. 226; 18 A. L. J. 1137 : 22 Cr. L. J. 56 : 59
I. C. 200.

(a) Khandu Sing, (1896) 22 B. 768.

(b) Causley, (1915) 43 C. 421 : 20 C. W. N. 326 :« 17 Cr. L. J. 69 : 32 I. C. 661.

(c) AH Hassan , (1906) 28 A. 358.

(d) Gyanee Ram, (1866) 6 W. R. (Cr.) 78.

(e) Ram Sarup, (1917) 19 Cr. L. J. 236 : 43 I. C. 828.

(f) Bhavani Shanker, (1874) 11 Bom. H. C. R. (Cr. C.) 3.

(g) Kali Prasad Bannerjee , (1914) 16 Cr. L. J. 76 : £6 I. C. 668 (Cal.).

SEC. 464 ]

FORGERY

911

In an old Calcutta case where a private student forwarded to the Registrar of
the Calcutta University with his application to appear at the Entrance Examina-
tion, a certificate of character purported to be signed by a Head master of a High
School, such signature being to the knowledge ot the accused a forgery and the
Registrar knowing the signature to be forgedialloyed the accused to appear at the
examination, it was held that the primary object df the accused was, by falsely induc-
ing the Registrar to believe that the certificate was signed by the Head Master,
to be permitted to sit for the examination and that such intention could not be held
to be ‘ fraudulent * or * dishonest * within the meaning ot Ss. 24 and 25 of the
Penal Code and that consequently he had not committed any offence either under
s. 471 or s. 415 ot the Penal Code (h). This case has subsequently been overruled
by a Full Bench decision in Abbas Ali (i).

The accused, T. C. S. Martindale, went to the market and after making some
purchases tendered a cheque to the shop-keeper who called a poddar who cashed
it for a small commission. On being presented, the cheque was dishonoured by the
Bank. It appeared that the brother ot the accused, G. R. Martindale, had an
account with the Bank and the signature on the cheque was only ‘ Martindale.’ The
evidence was that he made an alteration in the date on the cheque in the presence
of the shop-keeper and the poddar as though he were the drawer but made no
representation about G. R. Martindale. It was held that inasmuch as the accused
had no intention ot inducing in the minds of the shop-keeper and the poddar the
belief that the cheque had been signed by his brother and had no such intention
in regard to the Bank, the cheque in question was not a false document within the
first clause of this section and consequently the charge of forgery failed (j).

The accused a Mahomedan, with the intention of making a claim to a
woman’s property alleged marriage with her and to support his claim executed a
false kabinnama in her favour. It was held that the document was a ‘false
document’ within the definition contained in s. 464 (k).

Mere antedating a will does not amount to forgery in the absence of other
circumstances (I). The antedating of a document is net forgery, unless it has or
could have operated to the prejudice of any one (m). The Rangoon High Court
has held that to execute, with fraudulent intent, a document purporting to have
been executed on a date other than the one on which it was actually executed is it-
self a forgery. The real gravamen of the charge is that the document itself is
fraudulently antedated and not the alteration ot the date on which the stamp-paper
was bought which fact is merely a piece of evidence to establish the forgery of the
document itself (n).

Forging signature of plaintiff in plaint to prevent suit from becoming
barred by limitation — whether forgery s — Where the husband of a woman who
had given him general permission to file papers in Court on her behalf forged her
signature in a plaint to save the suit from becoming barred by limitation and filed
it in Court on the last day of limitation, held that the husband v^ts not guilty of
forgery as there was no intention to defraud anybody, though his act „ was an
improper one (o).

(hj Haradhan, (1892) 19 C. 380.

(i) (1896) 25 C. 512 (F. B.)

fl) T. C. S. Martindale . (1924) 52 C. 347 : 20 C. W. N. 447 : 40 C. L. J. 256.

(k) Gum jar Mahomed v.*Shuraz Ali, (1921) 23 Cr. L. J. 723 (Cal.) : 69 I. C. 451.

(l) Durga Prasad, (1915) 17 Cr. L. J. 640 : 36 I. C. 588.

(m) Gobind Singh, (1926) 5 P. 573 : 8P.L. T. 133 : 27 Cr. L. J. 1308 ; A. I. R

(1926) Pat. 535.

(n) Rangaswami Chettiyer v. Mautigo Po Ku, (1927) 6 R. 49.

(oi Afati Charan Roy, (1929) 31 Cr. L. J. 1126 : A. 1. R. (1930) P. 271.

012

THE INDIAN PENAL CODE

[CHAP. XVIII

Forged documents which purport to be copies: — Where an accused

produced before Court an interpolated certified copy of plaint in a boundary suit,
the Calcutta High Court convicted the accused holding that having given his pleader
a copy of a f ilse document for the purpose of using it in the trial of his suit he inten-
tionally and fraudulently made the fabricated plaint and these acts constitute
the substantive offence rather than an attempt of which he had formally been
charged and convicted (p). A copy of a false document is not a false document
within the meaning of this section (q). The Patna High Court has held that the
making of the copy of a forgery is not ‘ forgery * unless the maker of the copy was
authorised to make the copy (r). Where the accused, a clerk in the office of the
District Superintendent of Police forged an order purporting to be the order of the
District Superintendent of Police intimating that a woman, Piary, was with one
Sibni, and that the Sub- Inspector should be directed to hand her over to her
husband, it was held that the accused in fabricating such a document had acted
fraudulently and had committed the offence punishable under s. 465 (s). The forging
of a document which purports to be a copy only and which even if a genuine copy
would not authorise the delivery of moveable property is not punishable under
either s. 467 or s* 471 ft). Where a person, who was bound to give a true copy of
an original, gave such a copy knowing the original to be false, the Bombay High
Court held that no offence of forgery had been committed (u). Where the accused
sent an imperfect copy of his diary to the Superintendent of Police, the Bombay
High Court held that no charge of forgery could be established unless it was proved
that the interpolations were extant on the diary and had not been struck through
at the time the copy was made (v). It is extremely doubtful whether the mere
filing cf a copy is the user of a forged document. A certified copy thereof is
certainly not a forged document. But it is otherwise where the offender used the
copy knowing or having reason to believe that the entries in the original docu-
ments were forgeries and intending to use them for fraudulent purposes (w).
Where a person in obedience to an order of a Court produced a forged document,
the Madras High Court held that no offence under Ss. 463 and 471 had been
committed (x).

* makes any mark denoting the execution of a dccvmcnt 9 : — A person
counterfeiting marks on a tree intended to be used as evidence that the tree has
been passed for removal by the Ranger of a forest is guilly under this section as
such mark is a ‘ document * within the meaning of s. 29, supra fy).

English cases : — S. 464 embodies the principles enunciated in Dunns case (z)
and Martins case (a). To make a mark in the name of another person with
intent to defraud the person whose name is assumed, is forgery (z). When the
accused, Robert Martin, in payment of some dues drew a cheque in the name of
William Martin which was dishonoured, it was held that he could not be convicted
of forgery (a). Where the accused fabricated a false certificate of service and
character purported to be given by the Master of a Ship and by producing it before

(p) Lata Ojhk, (1899) 20 C. 863.

(q) Gopal Krishna, (1910) 20 M. L. J. 534.

(r) Lachman Lai, (1919) 4 P. L. J. 16.

(s) Ali Hassan , (1 906) 28 A. 358.

(t) Naro Gopal , (1886) 5 Bom. H. C. R. (Cr. C.) 56.

(u) Marigowda, (1891) Rat. Unrep. Cr. C. 583.

(v) Shiddungowda, (1868) Rat. Unrep. Cr. C. 12.

(w) Krishna Govinda Pal, (1015) 43 C. 783. #

(x) Assistant Sessions Judge of North Arcot v. Ramammal, (1911) 36 M. 387 :
22 M. L. J 141 : (1912) M. W. N. 3 : 13 Cr. L. J. 35 : 13 I. C. 275.

(v) Krishnapal Khandappa, (1925) 27 Bom. L. R. 599.

(z) Dunn, (1802) 1 Leach C. C. 59 : 2 East, P. C. 061, 962.

(a) Martin , (1878) 6 Q. B. D. 34, following Dunn t (1882) 1 Leach C. C..59: 2
East P. C. 961. c

SEC. 464 ]

FORGERY

913

a Board or Examiners of the Corporation of Trinity House deceived the said
examiner and got a certificate of nautical skill from them, it was held that he
committed the offence of forgery (b). The forgery of a railway pass to allow the
bearer to pass free on a railway, is a forgery at common law, but the uttering of
it per se is not a misdemeanour unless some fraud was actually perpetrated by
it (c). Putting a seal to a genuine signature to a document which is invalid without
a seal is a forgery (d)

Record in s. 28 of 24 and 25 Viet. c. 98, means the record of a Court of com-
petent jurisdiction, and forgery of a document, which although an official document,
is not kept in pursuance of any statutory authority, does not constitute an offence
within that section (e).

Clause 2 Illustration (a), (c), (d) t (e), (/), and (g), amplify this clause.

Where the accused altered the date of a document for the purpose of having
the document received in evidence and was convicted under s. 471, the Allahabad
High Court held that the conviction could not be maintained inasmuch as upon
the facts of the case, the element of 4 dishonesty * or 4 fraud * required under
this section was wanting (f). Where the accused, after the execution and registra-
tion of a document which was not required by law to be attested, added his name
to the document as an attesting witness, and was convicted under s. 471, the
Calcutta High Court held that the act of the accused could not be said to have
been done either dishonestly or fraudulently, and as such the offence did not come
within the 1st clause of s. 464, and it was further held that the interpolation of
the name of a witness as an attestor subsequent to the execution of a document
which need not be attested, is not a material alteration thereof within the second
clause of this section (g). Where an agreement in writing (valuable security) which
purported to be entered into between five persons was signed by only 2 of them
and was altered by the addition of some material terms by the accused who was
one of the executants without the consent or knowledge of the other executants
and was not signed by the other parties to the agreement, the Madras High Court
held that the accused was guilty of forgery of a valuable security under s. 467 or
an offence under s. 474 (h).

An intent to defraud means something more than mere deceit : — The object for
which the deceit is practised must be considered. The advantage intended to be
secured must be something to which* the party perpetrating the deceit is not en-
titled either legally or equitably. Where therefore the accused made an alteration
in a deed of agreement between himself and another intending thereby to secure
a certain plot of land which was in his possession ard to which he bona fide believed
himself to be entitled, it was held that this act did not constitute the offence of
forgery as no wrongful result was intended or could have arisen (i).

In order to constitute in point of law an intention to defraud, there must be a
possibility of some person being defrauded by the forgery, or there must be a
possibility of some person being not only deceived but injured by the forgery (j).
*

(b) Toshack, (1849) 1 Den. C. C. 492 ; Sharman, (1854) Dears. C. C. 285 ; Moah,
(1858) 7 Cox. 503.

(c) Boult, (1884) 2 C. and K. 604.

(d) Collins, (1844) 1 Cox. 57.

(e) Etheridge, (1901) 19 Cox. 670.

(f) Kali Din, (1919) 17 A. L. J. 872 : 20 Cr. L. J. 573 : 52 I. C. 61.

(g) Surendra Nath Ghose* (1910) 38 C. 75 : 14 C. W. N. 1078, followed in Ahmed
Alt, (1925) 42 C. L. J. 215 (218), but not followed in Mohit Kumar Mukherjee, (1925)
52 C. 881 (892) — decision of a single judge.

(h) G. S. Ramasami Ayar, (1917) 41 M. 589: 19 Cr. L. J. 177 : 43 I. C. 593.

(i) Manicka Atari, (1915) M. W. N. 278 : 16 Cr. L. J. 246 : 28 I. C. 102.

(i). Aparti Oman Ray' (1929) 126 I. C. 862 : 31 Cr. L. J. 1126 : A. I. R. (1930)
P. 271. ,

914

THE INDIAN PENAL CODE

[CHAP. XVIII

Where the promissory note expresses no time for payment, and while it was
in the possession of the payee, the words ‘ on demand * were added without the
assent of the maker, it was held that the alteration only expressed the effect of the
note as originally stood, and was therefore immaterial, it did not affect the validity
of the instrument (k).

A mooktear, who was appearing for the plaintiff in a Revenue Court, took up
the plaint in open Court but without the permission of the Court or of the clerk
in whose custody it was, added a prayer for ejectment for one more field to the
number of fields already claimed in the suit. He was acquitted of the charge of
forgery as it was not established that he did the act with any fraudulent or dis-
honest intention (1).

The accused fabricated a document purported to have been executed by one
M in their favour, while as a fact M had not executed it. The accused pleaded
the property comprised in the document already belonged to them by virtue of
some documents executed in the name of M, benami for them, and that the docu~
ment in question was only intended to confirm their already existed title. It
was held that the accused were guilty of forgery and it made no difference that the
fabricated document was intended to confirm an already existing title (m).

Clause 3 : — In order to convict a person under s. 464, it must be proved that
the accused practised deception so as to prevent a person from knowing the nature
of the document (n).

Where the accused, a mohurrer in a Registry office, was charged with making
alse endorsements of registry on the back of certain deeds, which endorsements
were signed by the Registrar, it was held that before he could be convicted of forgery
under this clause, it must be shown that the Registrar, in consequence of deception
practised upon him by the accused, did not know the contents of the document
he was signing (o).

Where it was not found that the copy of the registration endorsement, which
the accused requested a school boy to make on the document they produced, was
to be made for a dishonest or fraudulent purpose and if made dishonestly or
fraudulently was made with one of the intents set out in s. 463, the conviction under
s. 467 was not maintained (p).

It is not forgery fraudulently to procure a party’s signature to a document, the
contents of which have been altered without his knowledge (q).

Where a party receives a blank cheque signed, with directions to fill in a certain
amount and to appropriate the instrument to a certain purpose, and he fraudulently
fills in a different amount, and devotes the cheque to other purposes, he commits
forgery. But to sustain the charge, it is essential to negative every fact from which
an authority to act as he has done might be presumed (r).

Every fabricated document is not a forged document. There must be acts
that constitute the document a false or fabricated one and the case must fall within
the definition of piaking a false document under this section and such false docu~
ment must also possess the character or tendency described in s. 463 (s).

(k) Aldous v. Cornwell, (1886) L. R, 3 Q. B. 5?3.

(l) Bisheshar Dayal , (1905) A. W. N. 93 : 2 Or. L. J. 234.

(m) Soma Sundaram , 6 M. L. T. 266 : 3 I. C. 736, not following Kailash Chandra
Das, (1901) 6 C. W. N. 382.

(n) Najeebutollah, (1868) 9 W. R. (Cr.) 20. #

(o) Dwarka Nath Ghose, (1873) 20 W. R. (Cr.) 49. *

(p) Kailas C hander Das, (1901) 6 C. W. N. 382.

(q) Chadwick, (1884) 2 Mood, and R. 545.

(r) Bateman, (1845) 1 Cox. 180.

(s) Badan Singh, (1922) 3 L. 373 : 25 Cr. L. J. 337 : 77 I, C. 225 : A. I. R.

(1923) Lah. 11. ‘

SEC. 464 ]

FORGERY

915

Explanation 1.— Forgery of one’s own signature s— In all forgeries the
instrument supposed to be forged must be a false instrument in itself. If a person
give a note entirely as his own, his subscribing it by a fictitious name will not make
it a forgery, the credit being then wholly given to himself, without any regard to the
name or without any relation to any third person. But an instrument of another,
and in that light obtaining a superior credit when in truth it is not the act of the
person represented, is strictly and properly a false instrument. Where therefore
the accused, Elizabeth Dunn, representing herself to be the widow of one John
Wallace, took a loan and executed a note subscribed in the name of Mary Wallace,
it was held that she committed forgery (t). It has been held to be a forgery for a
man to sign his own name to a document in order that it may be supposed to be
and that it may take effect as a document executed by another person of the same
name (u). But where a prisoner was requested to make an entry in a book of account
belonging to the complainant to the effect that he was indebted to the com**
plainant in a certain sum found due on a settlement of accounts and instead of
making this entry as requested the prisoner entered in a language not known to
complainant that this sum had been paid to complainant, he was convicted of
forgery under s. 465, the Madras High Court held that the entry was not a docu-
ment which was made by the prisoner with the intention described by the first
clause of s. 464 or caused by him to be signed or executed within the meaning of
the third clause of this section (v).

Explanation 2. — Flase document in the name of a fictitious person : —

Where the accused put the name of the drawer in a cheque purporting to be drawn
by G. A. upon Messrs. J. L. & Co., and it was proved that no person named G. A.
kept any account with or had any right to draw on Messrs. J. L. & Co., it was held
that G. A. must be taken to be a fictitious person and consequently the accused
committed forgery (w). The prisoner gave a cheque for £10, drawn in the name
of John Weston on Messrs. Cox, Greenwood & Co., Bankers. It was found that
there was no customer of the bank of that name and the prisoner was convicted of
uttering a forged cheque (x). The prisoner in payment of his debt offered a pro-
missory note in his favour purported to be drawn by one William Holland. He
represented the maker as living at a particular place and in a particular line of
business but it was proved that it was not that person's note. It was held that
the accused committed forgery and proof that there is another person of that
name in a different line of business wilP not make it necessary for the prosecutor
to show that it was not that person’s note (y). It was held in the undermentioned
case, that to make a mark in the name of another person with intent to defraud the
person whose name is assumed, is forgery (z).

The accused advertised that a work on English idioms by Robert S. Wilson,
M. A., was ready, stating that the price was Rs. 2-4 and that intending purchasers
might remit it by money order to Robert S. Wilson, Council House Street, Calcutta,
then requested the postal authorities at Calcutta by a letter signed Robert S.
Wilson, to have the money orders redirected to him as above at Rajam ; similarly
requested the Postmaster at Rajam to pay the money orders to his c?erk Sheshegiri
Rau ; subsequently received the value of money order made out in favour of Robert
S. Wilson from the Postmaster at Rajam, signing receipts as Sheshegiri Rau.
Robert S. Wilson and Sheshegiri Rau were alleged to be fictitious persons and it
was also alleged that the accused had no book on English idioms ready to be des-

(t) Dunn's case, (1765) 1 &ach 57 ; Martin, 5 Q. B. D. 34 (37).

(u) Mead v. Young , (1790) 4 T. R. 28.

(v) Kunju Nayar, (1888) 12 M. 114.

(w) Backler, (1833) 5 C. and P. 118.

(x) Branman , (1834) 6 C. and P. 326.

(y) Richard Hampton, (1830) 1 Mood. C. C. 225.

(*) Dunn's case, (1765) 1 Leacb 59 ; Martin, 5 Q. B. D. 34.

916

THE INDIAN PENAL CODE

[CHAP. XVIII

patched to purchasers. It was held that the above allegations supported charges of
cheating and forgery (a). Where certain persons signed a bail Bond with names
which were not their own, it was held that they were not guilty of an offence under
s. 464 as they had before sigring the bond informed the Magistrate that their names
were the names they afterwards signed to the bail bond and that, therefore, the
persons could not be held to have intended to cause the Magistrate to believe that the
bail bond was signed by any person real or fictitious other than the accused (b).

Forgery to conceal carelessness or a negligent act Falsification of a
record made in order to conceal a previous act of negligence not amounting to
fraud does not amount to forgery within the meaning of Ss. 463 and 464 (c),

A public servant in charge of certain documents having been required to pro-
duce them, and being unable to do so, fabricated and produced similar documents
with the intention of screening himself from punishment. It was held that he
could not be legally convicted under s. 471 as the documents were not forgeries,
being not made with the intent specified in s. 463 (d).

A Kulkarni misappropriated certain moneys which the raiyats had paid to him
as irrigation cesses. Some time afterwards, he forged certain receipts purporting
to come from the Government treasury for those moneys, with the object of conceal-
ing the misappropriation. The accused helped the Kulkarni in the forgery for
forging the signatures on the receipts. It was held that the accused had committed
forgery although it was effected in order to conceal an already completed fraud.
As observed by Batchelor, J., in this case : “ The concealment of an already
practised fraud is a fraud " (e).

Where the accused, a pleader’s clerk, altered the date in the copy of a decree in
order to hide his fault in not filing the execution petition in time and filed it with
the copy of the altered decree, it was held that he was not guilty under s. 467,
the copy of the decree not being a valuable security but was guilty of the offences
under Ss. 193 and 471 (f).

An attakshi , prepared by the accused with false signatures in order to defraud
the District Munsiff into excusing his delay in returning processes and his absence
from duty, is made fraudulently and is a forged document within the meaning of this
section (g).

The prisoner altered an office report/ with a view to screen his own negligence,
he having lost a portion of a record, for which, if the report had stood in its original
form, he would have been called upon to account. The purport of the alteration
made by the prisoner was to throw upon another officer responsibility for the
missing document. It was held that there was no offence of ‘ fcrgery ’ under the
Penal Code (h).

Joint acts : — If several combine to forge an instrument, and each executes
by himself a distinct part of the forgery, and they are not together when the instru-
ment is completed, they are nevertheless all guilty as principals (i). To prepare in

(a) Peera Raju, (1889) 13 M. 27.

(b) Venkarajee Venkatasami, (1910) M. W. N. 232: (1910) 8 M. L. T. 124: 7
I. C. 178: 11 Cr. L. J. 440.

(c) Shanker, (1879) 4 B. 657.

(d) Mazher Hussain, (1883) 5 A. 553.

(e) Batktishna Vaman Kulkarni , (1913) 37 B. 666 : 15 Bom. L. R. 708 : 14

Cr. L. J. 518 : 20 I. C. 998. #

(f) Godlavedu, (1902) 1 Weir 551.

(g) Kamatchinatha Filial , (1918) 42 M. 559, following Kotamrazu Venkatarayadu,
(1905) 28 M. 90 (F. B.).

(h) Lai Gutnulo , (1870) 2 N. W. P. H. C. R. 11. r ‘

(i) John Bing ley, (1821) R. and Ry. 446; Jonathan Dade , (1831) 1 Mood. 307;
Robert Kirkwood, (1831) 1 Mood. 304. •

SEC. 405 ]

forgery

conjunction with others a copy of an intended false document and to buy a stamped
paper for the purpose of writing such false document, and to ask for information
as to a fact to be inserted in such false document do not constitute forgery nor an
attempt to commit forgery under the Penal Code, but are facts which would support
a conviction for abetment of forgery as being acts done to facilitate the commission
of the offence (j). A person cannot be convicted of forgery unless it is proved that
the person himself made a document or part of a document with the intention of
causing it to be believed that such document or part of a document was made by
the authority of a person by whose authority he knew that it was not made ( k).
Where the accused was neither a party nor took any part in the actual forgery of a
document, nor was he present upon the occasion when the document was forged,
it was held that the accused could not be convicted of forgery, but the proper section
to convict him would be Ss. 467/109, i.e., abetment of forgery and not sections
467/114 (I).

465. Whoever commits forgeiy shall be punished with
imprisonment of either description for a

gj’umshment for for- ^ ^ extend to twf) years> or

with fine, or with both.

Procedure : — Non-cognizable — Warrant — Bailable — Net compoundablc —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Prosecution {or an offence described in s. 463 or punishable under

s. 471 or 475 or 476 how initiatedi : — Under the old Criminal Procedure Code
no prosecution could be started for an offence under this section or s. 471 or s. 475
or s. 476 except with the previous sanction or on the complaint of such Court or of
some other Court to which such Court is subordinate. Under s. 195 (1), (c) of the
present Code of Criminal Procedure, Act XVIII of 1923 ‘ with the previous sanction *
is deleted. But the rulings under the old Code which related to ‘ sanction * still
holds good as regards 1 complaint in writing of such Court or some other Court of
which such Court is subordinate 9 and the new Code of Criminal Procedure by
s. 476-B has provided an appeal. The rulings under the old Code are summarised
here as follows : —

In s. 195 (1) (c) of the Criminal Procedure Code, the word ‘ offence * occurr-
ing as the third word is designedly used in somewhat abstract manner. It is the
4 offence in itself, not any particular offender’s offence which the section aims at,
and that is in accordance with s. 40 of the Penal Code where offence is defined as the
thing made punishable by the Code. In other words, the clause deals with the case
where there is a substantive offence committed by a party to a suit (m). The
offence under s. 463 mentioned in clause (c) of s. 195, Criminal Procedure Code,
covers an offence under s. 468, the object of mentioning s. 463, in s. 195 (c), Crimi-
nal Procedure Code, being to include all cases of forgery whatever the nature of the
fraudulent intention may be (n). Where forgery is alleged to have been com-
mitted before a document was produced in a Court, sanction is required to prose-
cute the offender (o). In a case of offences under Ss. 463 and 471, committed

a ) Padala Venkatas wami , (1881) 3 M. 4.

;) Ramgopal Dhar, (1868) 10 W. R. (Cr.) 7.

(1) Kashinafh Naik, (1897X25 C. 207.

(m) Narayan Dhonde v. Risbud (1910) 12 Bom. L, R. 383 : 11 Cr. L. J. 368 :
6 I. C. 629.

(n) Assistant Session Judge , North Arcot v. Ramammal, (1911) 30 M. 387 :
(1912) M. W. N. 3 : 10 M, L. T. 663 ; Teni Shah, (1909) 14 C. W. N. 479 : 11 Cr. L.J.
280 : 6 I. C. 879.

(o) • Teni Shah v. Bolai Shah , (1909) 14 C. W. N. 479 : 11 Cr. L. J. 280 : 6 I. C.

879 .

918

THE INDIAN PENAL CODE

[ CHAP. XVIII

before a civil Court, it was held that the provisions of s. 476, Criminal Procedure
Code, clearly indicate that the Court taking action under that section must not only
have ground for inquiry into an offence of the description referred to in that section
but must also be prima facie satisfied that the offence has been committed by
some definite person or persons against whom proceedings in the criminal Court
are to be taken (p). If an offence under s. 465 or s. 467 is committed with reference
to a document produced in course of a judicial proceeding, complaint by Court is
necessary though these sections are not specifically mentioned in s. 195, Cr. P. Code,
because s. 463 which finds a place there is used in a comprehensive sense fq).
Sanction is not required in a prosecution for forgery where the accused are not
parties to the proceeding but witnesses in the suit, when they are charged for
forgery of a document with a party to the suit (r). Under s. 195 cl. (1) sub-clause
(c) read with clause (3) of the Criminal Procedure Code, sanction of Court for the
prosecution of offences in respect of documents produced in Court is only necessary
when the offence is committed by parties to the proceeding, whether the offence
be one of the substantive offences under s. 463, 471 , 475 or 476, or it only amounts
to abetment of any such offences. Sanction is not required against any person
who is not a party to the suit, e.g., a witness (s). The same view has been held
in the following cases under this amended Code of Criminal Procedure (s x ).

The accused presented before the Registrar a certain document for registra-
tion, the execution of which was denied by the complainant but the Registrar directed
it to be registered. Thereafter as the result of a civil suit instituted by the com-
plaint, the document was found by the Court to be a forged one. A complaint was
then presented before the Sub-divisional Officer under Ss. 467 and 471 , and process
was issued under s. 467. It was held that the Magistrate could proceed under
s. 471 , without obtaining the sanction of the civil Court, but that so far as the pro-
ceedings founded on the offence under s. 467, were concerned he could not proceed
without the previous sanction of the civil Court ft).

Evidence of forgery : — The forgery can be proved by the evidence of ex-
perts as to the handwriting. The opinions of the expert on the question whether
the two documents were written by the same person or by different persons are
relevant (u).

Admissibility of Evidence : — On a trial of A before the jury on a charge under
this section the prosecution put in evidence the judgment of a Munsif in a civil
suit which was objected to on behalf of the petitioner and the Sessions Judge
referred to the substance of the judgment in the charge to the jury, the Calcutta
High Court held that the judgment had been illegally admitted (v).

Thumb impression : — There is no objection in law to the taking of the ac-
cused’s thumb impression, if the Judge thinks it relevant at any time ; nor a con-

(p) Mahomed Bhahlln, (1895) 23 C. 532.

(q) Khairqti Ram v. Malawa Ram, (1924) 5 L. 350 cases under the new code.

(r) Eadara Viraita v. Jiven, (1881) 3 M. 400 ; John Martin Sequeira v. Luja
Bai, (1901) 25 M. 671 ; Emperor v. Ghansham Sing , (1909) 32 A. 74: Amea Ayray
v. Emperor , (1906) 30 M. 226.

(s) Debilal, (1910) 15 C. W. N. 565 : 12 Cr. L. J. 101 : 9 I. C. C. 577 ; Sessions
Judge of Guddapat v.Kondate Obalesu , (1914) 26 M. L. J, 220 : 5 Cr. L. J. 242 : 23
I. C. 194.

(si) Probhat Ran j an Bayat v. Uma Sankar Cfiatterjee , (193Q) 35 C. W. N. 78;

Sengoda Goundan v. Vycpuri Goundan (1931) 61 M. L. J. 684 see contra, Bal

Gaunda Ram Chandra Palil, (1930) 55 B. 461 : 33 Bom. L. R. 296.

(t) Abdul Gant , (1915) 16 Cr. L. J. 617: 30 I. C. 441, following Teni Shah ,

(1909) 14 C. W. N. 280 ; Noormahamad C as sum v. Kaikhosru Maneehjee. (1902) 4
Bom. L. R. 268 : Gulabchand, (1925) 27 Bom. L. R. 1039.

(u) Section 45, Indian Evidence Act I of 1872.

(v) Gogun Chunder Ghose t (1880) 0 C. 247.

SEC. 405 ]

FORGERY

919

viction based on a comparison of the thumb-mark so taken with the thumb-mark
on the document in respect of which the accused is alleged to have committed an
offence is in the least objectionable (w).

Evidence of intention : — A statement made by a witness in a civil suit
concerning the authenticity of a document before the Court may be admissible
in evidence on the prosecution of a party to the suit for an offence relating to the
document, the witness having since died ; but such a statement cannot be treated
as evidence against another witness in the same civil suit accused of abetment of
the offence charged against the party and of perjury (x).

A certified copy of a forged document is certainly not a forged document
and it is doubtful whether the mere filing of such a copy is the user of a forged
document. But if the accused knows that the entries in the original document
are forgeries and uses a certified copy of such forged original for fraudulent purposes,
he can be convicted (y).

Assuming the document to be a false document, it is further necessary for the
prosecution to prove that it was made with any of the intents mentioned in s. 463.

Now s. 464 uses the expression 'dishonestly’ or ‘fraudulently’ for which see
commentary on s. 464, supra .

Joint trial : — Where the accused was tried at one and the same trial for
three offences under s. 408 and three offences under s. 469 of the Indian Penal
Code, it was held that the proceedings were irregular and that the trial of the
accused in respect of six offences at one and the same trial, although they were
committed within the space of 12 months contravened the rule laid down in s. 233
even when read with s. 234 of the Criminal Procedure Code (z). The joint-trial
of the scribe and attesting witnesses of an alleged forged document for giving
false evidence in support of that document is illegal and vitiates the trial fa).

Autrefois acquit: — Where the prisoner was charged with having forged
poltahs A and B bearing the same date and adduced in evidence by him in the
same suit, and no mention of any charge as to pottah B was made in the order of
commitment, and the prisoner was acquitted on an indictment for forging pottah
A, it was held by the majority of the Court (Markby, J., dissenting) that the plea
of autrefois acquit was inadmissible on^a subsequent trial of the prisoner lor forging
pottah B (b).

Onus on the prosecution : — In a charge of forgery it is for the prosecution
to prove that the document is a forged one and that the accused did forge it, and
not for the defence to prove that the document is a genuine one fc).

The prosecution must prove — (1) that the accused made, signed, sealed
or executed the document or part of the document in question or that it was made
by some one else at a time at which the accused knew that it was not made, signed,
sealed or executed.

(2) That it was made under any of the circumstances mentioned in s. 464.

(3) That the accused made, signed, sealed or executed such document either
dishonestly or fraudulently (s. 464) or with intent to cause damage or injury to

(w) Public Prosecutor v. Kan das ami Thevan , (1923) 53 M. L. J. 597.

(x) KadueMal, (1919) 42,A. 24.

(y) Krishna Govinda Pal , (1916) 43 C. 783.

(z) Sheo Saran Lai , (1910) 32 A. 219 : 7 A. L. J. 225 : 11 Cr. L. J. 285 : 5 I. C.

896.

(a) Gunwant, (1916) 13 N. L. R. 35.

(b) Dwarakanath Dutt,ilSW) 7 W. R. (Cr.) 1 5.

(c) ’ Luchmi Singh, (1918) Pat. Supp. C. W, N. 36 : 19 Cr. L. J. 344 : 44 1. C.

456 . *

020

THE INDIAN PENAL CODE £ CHAP. XVtll

the public or to any person.or to support any claim or title or to cause any person
to part with property, or to enter into any express or implied contract, or with intent
to commit fraud or that fraud may be committed (s. 463).

The prosecution must prove affirmatively that the signature or the part of the
document alleged tor be false is not in the handwriting of the party whose signature
or writing the document or part of the document purports to be, but in the hand*
writing or the accused who knew the handwriting of the complainant or the person
whose handwriting is alleged to have been forged, either from the circumstances
that he saw the man to write, or from being in the habit of correspondence with
him.

It must be proved that the signature or other part of the document alleged
to be false, is not in the handwriting of the party whose signature it purports to
be, by any person acquainted with his handwriting, either from having seen him
write, or from being in the habit of corresponding with him (d).

It must be proved expressly or from surrounding circumstances that the
alleged forgery represents the handwriting of the person whose handwriting it is
proved to be (e).

The elements which have to be proved in a case of forgery are (i) that the
document was not executed on a date on which it is shown to be written, fu) that
the parlies who executed it did so with fraudulent intent (f).

Evidence of handwriting expert : — Ordinarily a man should not be con*
victed of the offence of forgery solely upon the evidence of a Finger-print Expert
relating to similarity of thumb-impressions (g). But the opinion of an expert
is not final, as Abbott, C. J., said : It is evidence to which no great weight should

be given for I think it must be too loose to be the foundation of a

judicial decision either by Judges or juries ” (h). To base a conviction upon
the opinion of an expert in handwriting is, as a general rule, very unsafe (i).

Evidence of comparison of handwriting is often extremely dangerous—cf all
methods of proving a document that of comparison of handwriting by an inexpert
witness is the most unsatisfactory (j).

A Court is competent to use its own eyes for the purpose of deciding whether
certain handwriting placed before it are similar or not, and the opinion of ex-
pert is only a piece of evidence, whereas the opinion of the Judge is the decision in
the case. It is unsafe to base the conviction of an accused entirely upon a
comparison of handwriting (k). A conviction of forgery can seldom be based
solely on non-resemblance of handwriting (1).

The Madras High Court has also held that an accused should not ordinarily
be convicted of forgery upon the uncorroborated testimony of a handwriting
expert (m).

Evidence of accomplice : — A conviction of an accused for forgery based
upon the evidence of an accomplice or even on the confession of a co-accused,

(d) Harley, 2 M. and Rob. 473.

(e) Downes, 2 East, P. C. 997.

(f) Rangaswami Chettyer, (1927) 6 R. 49 : A. I. R. (1928) Rang. 117.

(g) Jassu Ram, 4 L. 240 : 25 Cr. L. J. 375 : 77 I. C. 423 : A. I. R. (1923) L. 622 ;
sec Harendra Nath Sen, (1931) 35 C. W. N. 802— conviction under s. 457 and 380.

(h) Gurney v. Langlands, 6 B. and A. 330.

(i) Srikant, (1904) 2 A. L. J. 444.

(j) Suresh Chandra Banerjee, (1927) 47 C. L. J. 471 (476).

(k) Udhab Santra, (1921) 23 Cr. L. J. 74 : 65 I. C. 426.

(l) Sagarmal Agarwalla, (1924) 40 C. L. J. 135 (138)«

(m) Venkata Row, (1913) 36 M. 159, following Srikant, (1904) 2 A. L. J. 444;
Kalicharan Mukcrjec, (1909) 6 A. L. J. 184.

SEC. 405 ]

FORGERY

021

is not illegal, though it is quite unsafe to convict a man on such testimony unless
there is reliable corroborative evidence in material particulars (n).

Guilty knowledge : — The simple making of a false document as mentioned
in s. 463, constitutes the offence of forgery and it is not necessary that it should be
presented in Court or shewn to any person. A false document may even be made
in the name of a fictitious person (o). But the conviction for forgery cannot be
had unless it is proved that the accused himself made a document or part of it
with the intention of causing it to be believed that such documentor part of it
was made by the authority of a person by whose authority he knew that it was not
made (p). Similarly it has been held that the adopting of a false description and
addition where a false name was not assumed, and where there was no person
answering the description or addition, was a forgery (q).

In an action on a foreign bill of exchange, to prove the handwriting of the
defendant it is evidence to go to the jury, that a person who saw him write once,
thinks the handwriting alike, though he has no belief on the subject (r). It has
been held that another uttering subject of a separate indictment cannot be adduced
in evidence to prove guilty knowledge (s).

Production of a document in obedience to a Court’s order : — A forged
document was produced in Court in obedience to an order of the Court. It was
held that the production did not amount to using the document as genuine. An
involuntary production of a document in Court cannot be said to amount to
user of it. The expression * using a document * is apparently used in the sense
of its being put forward in some way for one of the purposes mentioned in s. 463 (t).

* It is immaterial whether the document was produced by the accused of his
own motion or under the order of a Court, if in the event he uses it as genuine (u).

Charge t — I (name and office of Magistrate , etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of , at ,

forged a certain document, to v/it (describe it), with intent to cause

damage or injury to XY [ (or to support a certain claim of title, to wit ,

or to cause XY to part with certain property to wit , or to enter into a

certain contract (either express or implied) with regard to ( mention the object) or
with intent to commit fraud (state She deception) ] or that fraud may be committed
by AB, and that you thereby committed an offence punishable under s. 465 of the
Indian Penal Code and within my cognizance (or the cognizance of the Court of
Session or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Punishment : — Deterrent punishment is necessary for offences under Ss. 196
and 465 (v).

eparate sentences: — See commentary under s. 71, supra .

(n) Narayana Aiyar , (1014) M. W. N. 363 : 15 Cr. L. J. 4*17 : 24 I. C. 153.

(o) Shifati A li t (1868) 2 Beng. L. R. 12 : 10 W. R. (Cr.) 61 ; Peera Raju, (1880)
13 M. 27.

Ramgopal Dhar, (1868) 10 W. R. (Cr.) 7.

(qj John Webb, (1819) R. and R. 407 ; Zeigerl, (1867) 10 Cox. 555.

(i) Garrets v." Alexander, (1801) 4 Esp. 37 ; Slaney, 5 C. and P. 213.

(s) Smith, 2 C. and P. 633.

hi Assistant Sessions' Judge of North Arcot v. Ramammal, (1011) 36 M. 387 :
(1912) M. W. N. 3 : 10 M. L. T. 563 : 22 M. L. J. 141 : 13 Cr. L. J. 35 : 13 I. C.
275.

(u) Mohit Kumar Mukherji, (1925) 52 C. 881 ; see contra Ahmed Ali (1925)
42 C. L. J. 215.

-(v) Jorabhai Kisahbai, (1926) 50 B. 783-28 Bom. L. R. 1051-27 Cr. L. J.
1173-A. I. j t. (1926) Bom. 555.

922

THE INDIAN PENAL CODE

[CHAP. XVIII

When an accused persory is convicted of two different offences, separate
punishment for each offence ought to be awarded (w). The Allahabad High
Court in a later decision held: “The accused cannot be convicted at one and
the same time of forging a document and using that document as forged and the
charges under Ss. 467 and 471 must therefore be regarded as alternative. We
know of no authority to this effect and none has been pointed out to us ” (x). But
the learned Judges were not referred to the case of Umrao Lai (w).

For further commentary see notes under Ss. 463 and 464, supra .

466. Whoever forg es a document, purporting to be a re-
Forgery of record of cord or proceeding of or in a Court of Justice,
Court or of public rc or a register of birth, baptism, marriage or
gister, etc. burial, or a register kept by a public servant

as such, or a certificate or document purporting to be made by a
public servant in his official capacity or an authority to institute
or defend a suit, or to take any proceedings therein, or to confess
judgment, or a power of attorney, shall be punished with imprison-
ment of either description for a term which may extend to seven
years, and shall also be liable to fine.

Forges — s. 463. Court of Justice — s. 20.

Document — s. 29. Public servant — s. 21.

This section punishes forgery of record of Court or of public register of birth,
baptism, marriage or burial or a register kept by a public servant, etc. This section
provides for an aggravated punishment in view of the documents forged being
important.

Procedure s — Non-cognizable — Warrant — Not bailable — Not compound-

able — Triable by Court of Session.

For other points of procedure sec commentary on the preceding section.

Sanction — of the Local Government under s. 197 is necessary for the prose-
cution of a village Munsif where he has forged any record in his capacity as a
Judge fy). *

Charge s — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows: —

That you, on or about the day of , at- ,

forged the document, exhibit which purported to be a record (or

proceeding of a Court of Justice, etc.) and that you thereby committed an offence
punishable under s. 466 of the Indian Penal Code and within the cognjjzance of the
Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Ss. 466 and 12&-B :-S. 1 96-A, Criminal Procedure Code, applies only to a
prosecution for conspiracy punishable under $. 120-B of the Penal Code' and not
for abetment of conspiracy punishable under s. 109 of the Code (z).

Forgery of record of Court or of public register/ etc* The false
alteration of a police-diary by a Head-constable was held to fall under this section
as the forgery of a document made by a public servant in his official capacity (a).

(w) Umraolal , (1900) 23 A. 84, followed in Digambar, A. I. R. (1925) Nag. 440.

(x) Badri Prasad, *1912) 35 A. 63. * «

(y) Sivarama Krishna lyyar v. Sheshappa Naidu, (1928) 52 M. 347.

(z) Abdul Salim, (1923) 49 C. 573, followed in V. M. Abdul Rahaman, *(1*924)

3 R. 95 (105). •

SEC. 466 ]

FORGERY

923

Garth, C. J., held : “ It seems to me that s. 466 is not intended to apply to
cases where a public officer, or a person acting for a public officer, whose duty it is
to make entries in a public book knowingly makes a false entry, but to cases where
a certificate or other document is forged by some unauthorised person with a view
to make it appear that it was duly issued by a public officer, as for instance, where
a man forges a marriage certificate duly issued by the officer who ought to have
issued it” (b).

‘ purporting to be 9 : — A conviction may be had for using as genuine a forged
document purporting to be made by a public servant in his official capacity, not-
withstanding the illegibility of the seal and signature thereon (c). The mere filing
of a document as the basis of a plaint or as a necessary sequence to the pleas in the
plaint is an user ; and it then becomes incumbent on the person using it to show that
he filed the document in all good faith believing it to be genuine (d). The accused
transferred the whole of his property in favour of his wife but before registering
the sale deed mortgaged the property to F. The sale deed was however registered
after the mortgagee had made all necessary enquiries at the Registration Office.
After the registration of the sale deed, the mortgage deed was also registered.
The accused was charged for cheating. It appeared during the trial that the
mortgage deed filed by the complainant be re on it an endorsement of the return of
the consideration, although there was no such endorsement on it, when it was
filed in Court. The accused was thereupon further charged for fabricating false
evidence and forgery. It was contended for the accused that the object of fabri-
cating the endorsement was to save him from conviction in the criminal case for
fprgery and that therefore the act does not amount to the offence of forgery as
defined in s. 463. But it was held by Tudball, J., that the accused must be pre-
sumed to know the probable result of his action and it obviously could not have
been absent from his mind when he fabricated the endorsement that he was
thereby attempting to defraud the mortgagee of his money and consequently the
act of the accused fell within the scope of s. 463 (e). A plaint is a record or a pro-
ceeding of the Court of Justice in which it is filed. It is a document which once filed
cannot be altered or amended without the special sanction of the Court. Where
therefore the accused fraudulently made alterations and substitutions in a plaint
after k wfcs filed they were held to have committed the offence under s. 466 (f).
This section applies to the forging of a document purporting to be a register of
marriage, although the register is a private one and not one kept by a public servant
as such, e.g., a register of marriage of Muhammadans kept by a Kazi (g). Where
a document is made for the purpose of being used to deceive a Court of Justice, it is
made with the intention of being used for that purpose. A person, therefore, who
at the request of another sent to trap him, fabricated a document purporting to be
a notice under the seal and signature of a Deputy Collector, he being informed that
the notice was required by such other person for the purpose of being used in a
pending suit (there being, however, in reality no such suit in existence), is guilty
of forgery, it not being necessary that the intention of fraudulently using the docu-
ment should exist in the mind of any other person than the person fabricating the
document (h)« Where the accused were convicted of the offence of forgery in that
they dishonestly prepared a copy of an entry in a village death-register knowing

that the entry was false, the Bombay High Court in quashing the conviction held

■*

(a) Rughoo, (1869) 11 W. R. (Cr.) 44.

(b) Jtiggan Loll, (18tft>) 7 C. L. R. 356 (361).

(c) Prosunno Bose, (1866) 6 W. R. (Cr.) 96.

(d) Mobarak AH, (1012) 17 C. W. N. 94 : 18 I. C. 81

(e) Abdul Rashid Khan, (1913) 12 A. L. J. 104.

m Shyama Charan, 16 I. C. 1004 (AH.).

• (g) Bacha Miah, (1891) 1 Weir 541. *

(h) Haradhan Maiti, (1887) 14 C. M3 (fr. B.).

924

THE INDIAN PENAL CODE

[CHAP. XVIII

that it cannot be forgery on the part of such a person to give a true copy of a
document which contains a statement which he knew to be false even though he may
also know that the copy is about to be tendered in evidence before a Court (i).

offence unless the alteration or addition made is done dishonestly
or fraudulently s— ' The elements of fraud or dishonesty, as explained in the Penal
Code, must be present in the mind of the person accused to bring his act under
Ss. 466 and 471 of the Penal Code (j). The substitution in sub-pcenas, without
intent to defraud, of names of witnesses whose evidence is bona fide required for
names of those who are discovered to know nothing of the case, is not sufficient
to establish the offence of forgery (k).

English cases 2 — Where the accused, an attorney, altered a printed form of a
distringas into a summons by striking out certain words respecting the distraining
and inserting the word * summon * after the same had been issued in a blank
form by the county clerk according to an irregular though prevailing practice, it
was held that he was not guilty of forgery as there was no evidence of any intent
to defraud the prosecutor (1). Where the accused, a prisoner in a jail, forged an
order from a Magistrate to the gaoler to discharge him (the accused) as upon bail
having been given, it was held that this act was forgery at common law (m).
Where the accused secured the post of an ‘ assistant priest ’ by producing a fabri-
cated document purporting to be a certificate of his ordination at Worcester, it
was held that he could not be convicted under 24 and 25 Viet., c. 98, s. 28 as the
register of ordinations is not the record of a Court, but he was convicted of the
charge of the common law misdemeanour of forgery (n).

467. Whoever forges a document which purports to be a
valuable security or a will, or an authority
sccurityTwiu, f etc aluablc to adopt a son, or which purports to give
authority to any person to make or transfer
any valuable security, or to receive the principal, interest or
dividends thereon, or to receive or deliver any money, moveable
property or valuable security, or any document purporting to be
an acquittance or receipt acknowledging the payment of iftoney
or an acquittance or receipt for thfc delivery of any moveable
property or valuable security, shall be punished with transporta-
tion for life, or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.

Forges — s. 463. Document — s. 29.

Valuable security— s. 39. Will— s. V.

Moveable property — s. 22.

This section provides for a more enhanced punishment for the offence of
forgery than under lire preceding section as the document forged is more important
than those mentioned in s. 466 as also the serious consequences that affect the
persons aggrieved. *

If a person puts forward a document as supporting his chu'fn in any matter,
whether the document is acted upon by the Court or used in evidence is im-

, (») Marigowda, (1801) Rat. Unrep. Cr. C. 583.

(i) Raily. (1001) 5 C. W. N. 000.

(k) Taylor, (1012) A. C. 347 (353).

(l) Collier, (1831) 5 C*and P. 100.

(m) Robert Hams, (1834) 1 Mood. C. C. 303.

(n) Etheridge, (1901) 10 Cox. 070. * «

SEC. 467 ]

FORGERY

925

material (or the purpose of constituting the user of the document by the party
within the meaning of s. 471 (o).

Procedure : — Non-cognizable — Warrant — Not bailable— Not compound-

able — Triable by Court of Session.

When the valuable security is a promissory note — Cognizable— Warrant — Not
bailable — Not compoundable — Triable by Court of Session.

To justify a conviction under s. 467, it must be shewn that the document is
a false document within the meaning of s. 464 and that it was forged by the accused
with some intent mentioned in s. 463. It is not sufficient that some possible
intent may be inferred from the facts but it is necessary that such intent should
be established by evidence (p).

The accused was tried along with his partner A, in that they conspired to get
up a Khata , and in furtherance of that conspiracy A went to S, a professional
forgerer, and got it prepared. A was acquitted, but the accused was convicted
and sentenced under Ss. 467 and 109. The accused on appeal contended that as
the case against his fellow conspirator was not successful, the charge of conspiracy
broke down and he was entitled to an acquittal, but it was held that the charge
against the accused was that he abetted S's offence of forging a Khata , and if that
abetment was proved against the accused, he must be convicted of that charge, even
though the prosecution were not successful in establishing the particular means or
instruments selected by the accuesd for the abetment of Ss offence (q).

S. 463 referred to in s. 196 (c) of the Criminal Procedure Code covers forgery
of the description for which penalty is provided under s. 467. Where therefore the
accused was alleged to have committed an offence under s. 467 in respect of a
document which was subsequently produced at the hearing of a suit tried on the
original side of the High Court in which the accused was a party, it was held that
the prosecution was incompetent without the previous sanction of the Court which
tried the suit or of the Court to which it was subordinate (r).

Complaint by Court : — Now under the amended code of Criminal Procedure
no Court shall take cognizance of the offence under this section except on the com-
plaint in writing of the Court before whom the document is produced or given in
evidence or some other Court of which such Court is subordinate (s).

Complaint by Court is necessary if offence is done in relation to a pro-
ceeding in Court (t).

The word ‘Court* in s. 195 (1) fc)* Criminal Procedure Code, refers only to
a Court in British India and does not include a Court in a Native State (u).

The Calcutta High Court has held that complaint by Court can be made
against a witness in respect of offences mentioned in s. 195 (I) (c), Cr. P. Code, (v)
but a contrary view has been held by the Bombay High Court (w). The Allahabad
High Court by a Full Bench decision in Kushal Pal Singh* s (x) and the Madras

(o) Bansi Shaikh , (1923) 51 C. 469 (477).

(p) Kailas Chandra Das , (1901) 6 C. W. N. 382.

(q) Chottalal, 14 Bom. L. R. 367.

(r) Teni Shah v. Bolahi Shah, (1909) 14 C. W. N. 479.

(s) 195 (1) (c) of the Code of Criminal Procedure.

(t) Khairati Ram v. Malawa Ram , (1924) 5 L. 550.

(u) hi re Patel MuljtBhai Hirahhai, (1925) 49 B. 860.

(v) Provath Ranjan Barat v. Uma S hanker Chatter jee, (1930) 35 C. W. N. 98.

(w) Balgounda Ranigouvda Patil, (1930) 55 B. 461 : 33 Bom. L. R. 296, following
in re Devjivalad Bhavan, (1893) 18 B. 581 and dissenting from C. T. Gurusamy v.
D. K. S. Ebrahim , (1024) 2 R. 374.

. (x) (1931) A. L. J. 697 (F. B.).

926 THE INDIAN PENAL CODE [ CHAP. XVIII

High Court in Sengoda Samdas’s case (x 1 ) have held the same view as that of
the Calcutta High Court.

Charge: — In order that Ss. 109 and 467 may apply to a case, it should be
declared in the charge that ‘ the act abetted was committed in consequence of the
abetment ’ (x s ). A charge is bad if the intention is not set out (y).

Form of charge I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at ,

forged a certain document purporting to be a valuable security to wit — ,

(or a will or an authority to adopt a son, or document which purported to give
authority to a person to make or transfer a valuable security or to receive the
principal, interest or dividends thereon, or to receive or deliver money or moveable

property or valuable security or a document, viz., purporting to be an

acquittance or receipt acknowledging the payment of money or an acquittance or
receipt for the delivery of moveable property or a valuable security) namely,
(describe document )> with intent — , and thereby committed an offence punishable
under s. 467 of the Indian Penal Code and within the cognizance of the Court
of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Alternative charges : — Where a person, who was a forgerer himself, and
had used a forged document as genuine, was charged under s. 466 (for forgery)
as well es under s. 471 of the Indian Penal Code, it was held by the Allahabad
High Court that he cannot be charged under s. 471. It was remarked by the
learned Jij^ge in this case that the concluding words of s. 471 led him to
believe*thaf it was directed against some person other than a person proved to be
the actual forgerer. The section is useful as an alternative charge where it is not
certain whether the accused person is himself the forgerer of a document or has
merely used it as genuine. But he cannot recall a case in which the forgerer has
been punished both for forging a document and for using it as genuine (z). In a
later case, the Allahabad High Court in remanding back the case under s. 471 for
fresh trial before a new Sessions Court remarked : “ We notice what is apparently
a mistake of law into which the learned Sessions Judge has fallen. He says that
it is settled law that in each case the accused t^nnot be convicted at one and at
the same time of forging a document and using that document as forged, and the
charges under Ss. 467 and 471 must therefore be regarded as alternative. We

know of no authority to this effect and none has been pointed out to us’* (a).

*■

Punishment s—If a document was used fraudulently or dishonestly and if it
purported to be a valuable security the punishment provided by this section and
not that provided by s. 465 would be that to which the accused would be liable
under s. 471 (b).

Separate conviction : — Where a person commits the offence of forgery
outside the jurisdiction of the Court, and as such he cannot be charged under
that section, the Madras High Court held thgt the fact of his being the forgerer
is no reason why he should not be charged under s. 471. The forgery must, of

(xl) Sengoda Goundan v. Vyapuri Goundan, (1931) 61 M. L. J. 684.

(x2) (1864) 1 W. R. (Cr. L.) 9. «

(y) Haidar AH, (1912) 17 C. W. N. 364.

(z) Umrao Lai , (1900) 23 A. 84 ; Mokand Lai, (1901) P. R. No. 26; Pirbhu Dial
(1913) P. R. No. 4 of 1913.

(a) Badri Prasad , (1912) 35 A. 63 where Umrao Lai, (1900) 23 A. 84. was not
cited.

(b) Sagarmal, (1924) 40 C. L. J. 135 (142).

SEC. 467 J

FORGERY

927

course* be proved in order to establish the offence under s. 471, though it is not
itself the object of a charge (c).

Where a person is convicted of having forged a document, the Punjab Chief
Court held that he should not be punished both under this section and under s. 471 ,
even though he made use of the document (d).

Where a person is convicted under s. 467, for having forged a
promissory note, a further conviction and sentence under s. 471 for using that
note as genuine is not illegal in the course of the same trial (e).

Asking forgiveness if amounts to an admission of forgery : — In a case
where the expression : 44 Sir kindly forgive the fault. Such thing shall not take
place again ”, was used, it was held by the Calcutta High Court that it was not
an incriminating statement, and when used with reference to alleged forged
receipts, it was not an admission of forgery or of using a forged document (f).

Forgery of valuable security See commentary under Ss. 463 and 464.

In a case, where the prisoner was charged with destroying a 4 valuable secu-
rity’, e.g. 9 a settlement of accounts in the handwriting of himself though not
signed by him, it was held by the Madras High Court that an account stated
in which the balance is admitted to be due in the handwriting of the prisoner
was a valuable security (g). Forgery may be committed of a promissory note on an
imstamped paper (h). A deed of divorce is a valuable security within the meaning
of s. 30, and presenting such document for registration and obtaining registration
would be ‘using* within the meaning of s. 471 (i). Where the accused was
charged with forging a Sunnud conferring the title of Loskar upon them and filing
the same before the Settlement Officer and were thereupon convicted under J5s. 471
and 476, the High Court, in quashing the conviction, held that they could not be
found guilty, as the intention of the accused was not to cause wrongful gain or
wrongful loss to any one, their intention being to produce a false belief in the mind
of the Settlement Officer that they were entitled to the dignity of Loskar , and this
could not be said to constitute 4 an intention to defraud A Sunnud conferring
a title of dignity on a person is not a valuable security within the meaning of s. 30 (j).
A sale deed which is compulsorily registrable under s. 1 7 of the Registration Act
is a valuable security and forgery of such a deed is punishable under this section (k).
Where, the accused wrote out a document and took active part in the preparation
of it, but evidence was wanting to show that the accused took any part in the
forgery of the same of the alleged executant, it was held that he could not be con-
victed of the offence of forgery under s. ^67, and the proper section to convict
him would be under Ss. 467-109 that is of abetment of forgery and not under
Ss. 467/114(1).

A fraudulent alteration of a collectorate chalan is a forgery of a document
described in this section (m).

(c) Bhagavatty Perumall Pillay, 13 Cr. L. J. 862 : 17 I. C. 798. .»

(d) Pirbhu Dial, P. L. R. No. 52 of 1913 : P. R. No. 4 of 1913 : 14 Cr. L. J.
183 : 19 I. C. 183 ; Umrao Lai, (1900) 23 A. 84, contra see Badri Prasad, (1912) 35
A. 63.

148 ,

(e)

a

(h

8

W

In re Madu Chinnaji Reddi, 17 Cr. L. J. 73 (Mad.) : 32 I. C. 065.

Jang Bahadur Lai, (1911) 14 C. L. J. 652 : 13 Cr. L. J. 62 : 13 I. C. 398.
Kapalavaya Saraya , (1864) 2 M. H. C. R. 247.

Morton, (1795) 2 East.P. C. 956.

Azimoodeen , (1869) 11 W. R. (Cr.) 15.

Jan Mahamed, (1884) 10 C. 584. '

Govinda Ranappu, (1889) Rat. Unrep. Cr. C. 467 ; Ramasami , (1888) 12 M.

(i) Kashinath Naik , (1897) 25 C. 207.

(my Hurrish Chunder Bose, (1864) W. R. Gap. No. 22.

928

THE INDIAN PENAL CODE

[CHAP. XVIII

* purports to be f : — 1 The words in the section are ‘ which purports to be v
and not 4 which is 4 a valuable security. The document may not be an effectual
document so as to pass title until it is registered ; but as soon as it is registered,
it takes effect from the date of execution thereof ; and although it may not be a
valuable security until the registration is completed, still it * purports * to be a
valuable security within the meaning of the section (n). Where two documents
were found in the possession of the accused each bearing a signature which pur-
ported to be that of one Bindhyachal, but which in fact was a forged signature,
one document was intended to be filled up as a promissory note, the other as the
receipt, but the spaces for particulars of the document, the name of the person
in whose favour the document was executed, the date and place of execution and
the rate of interest were not filled in, an one anna stamp was affixed to each
but it was not cancelled in any way, it was held that these documents nevertheless
purported to be the valuable securities within the meaning of the definition con-
tained in s. 30 (o). Where the accused had been convicted of an offence punish-
able under Ss. 467 and 474 of the Indian Penal Code in the alternative, the alleged
forgery consisting in certain alteration in an agreement for sale of some landed
properties after its execution by a person who was a witness on behalf of the pro-
secution, as well as by the accused himself, it was held by the Madras High Court
that the accused was guilty of the offence of forgery of a valuable security urder
s. 467 or of being in possession of a forged document under s. 474 of the Indian
Penal Code (p). The Lahore High Court in Chattru Mullins case (q) followed
Jawahirs case fo) and Ramaswamis case (p).

Where the accused made a false entry of a receipt of money in a book which
purports to be a banker’s pass-book with intent to defraud, it was held that he can
be convicted of forgery (r).

Where a person forged the signature of another person in a money-order
receipt and obtained the money to himself, on the representation and connivance
of another person, it was held that both of them were guilty under this section,
viz., of forging a valuable security, r.e., the money-order receipt (s).

Where the accused produced false turn-pike tickets in form and colour resembl-
ing those issued at the gate to evade payment of toll, they were convicted of forgery,
etc., which is a felony within the meaning of 24 and 25 Viet., c. 98, s. 23 (t)«

Forgery of a will : — Mere antedating a will does not amount to forgery in
the absence of other circumstances (u). Forgery may be committed by the making
of a false will of a living person (v). The forgery of the will of a non-existing person
is an offence within the Stat. Will. IV. c. 66, s. 3 (w). Signing a wrong Christian
name of the person, whose will a false instrument purports to be, is a forgery (x).

Similarity of handwriting -Where the accused was convicted by the
Judicial Commissioner of Chota Nagpur for having forged certain bills, the Patna
High Court in quashing the conviction remarked: “ I think that mere similarity
of writing, without a title of other evidence of complicity in the conspiracy in pur-

(n) Kashinath Naik, (1897) 25 C. 207 (210). ~

(o) Jawahir Thcikur , (1916) 38 All. 430-: 14 A. L. J. 643.

(p) Ramaswami Aiyar, (1917) 41 M. 589.

(q) (1928) 10 L. 265: A. I. R. (1928) Lah. 681.

(r) Smith. (1862) 31 L. J. N. S. M. C. 154,

(s) Jogi Das Babu , (1921) 24 Bom. L. R. 99 : 23 Cr. L. J. 261 66 I. C. 328:
A. I. R. (1922) Bom. 82.

(t) Fitch and Howley, (1862) 9 Cox. 162.

(u) Durga Prasad , 17 Cr/L. J. 540 : 36 I, C. 588.

(v) Murphy , 2 East P. C. 949.

(w) Avery , (1838) 8 C. and P. 596.

(x) Fite Gerald and Lee, (1741) 1 Leach. 20.

SEC. 468 ]

FORGERY

029

suance of the forgery committed is insufficient to justify a conviction for
forgery ” (y). In a case where the Patna High Court affirmed the conviction of the
accused for forgery, it remarked that it was unsafe to base the conviction of an
accused entirely upon a comparison of handwritings (z).

468 * Whoever commits forgery, intending that the docu-
ment forged shall be used for the purpose of
of ch^ting. ° r purposc cheating, shall be punished with imprison-
ment of either description for a term which
may extend to seven years, and shall also be liable to fine.

Cheating — s. 415.

This section punishes forgery for the purpose of cheating.

Procedure : — Non-cognizable — Warrant — Not bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first
class.

complaint : — Where an offence is committed by a party to a proceeding
in a civil suit in respect of a document given in evidence in such suit, no
criminal Court can take cognizance except on the written complaint of the said
civil Court under s. 195 cl. (1) (c), Cr. P. Code, and in such a case the conviction
under this section must be set aside (z z ).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the-^ day of , at .

forged a certain document, to wit , ( describe it) intending that it shall

be used for the purpose of cheating, and that you thereby committed an offence
punishable under s. 468 of the Indian Penal Code and within my cognizance (or
the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Forgery for purpose of cheating : — Where it is established that the object
of the prisoner was to deceive his employer by falsifying the account books which
were in his custody, and as such deception was likely to cause damage to his
employer, the accused should be convicted under s. 468 and not under s. 465 (a).
The Madras High Court has held that a process-server filing a forged attakshi to
explain the delay in returning the process is guilty under this section and s. 471 (b).
Putting forward a nomination paper of election as a municipal commissioner con-
taining the alleged signature of persons who did not actually sign them is not an
offence under this section because no body is cheated by the candidate (c).

* doc ume nt 9 • — The Rangoon High Court has held that a hammer for
marking sleepers is a document within the meaning of this sectioned). If a wrong
entry of payment happens to be made in a document, it does not constitute forgery (e).

Mahomed Kabiruddin, (1909) 20 Cr. L. J. 534: 51 I. C. 774 (Pat.).

(zj Udhab Santra, (1921) 23 Cr. L. J. 74 : 65 I. C. 426 (Pat.), see Sagarmal
A gay walla, (1924) 40 C. L. J. 135 (138).

(zl) Martazuddin, (1933) *34 Cr. L. J. 256 (Cal.) .

(a) Banessur Biswas, (1872) 18 W* R. (Cr.) 40. • XT

(b) Kamatchinatha Pillai, (1919) 42|, M. 558: 36 M. L, J, 201 : (1919) M. W. N.
433 : 25 M. L. T. 345 : 20 Cr. L. J. 287 : 50 I. C. 175.

(c) Khadem Ali , (1921) 19 A. L. J. 093.

jej" Sam ihulam Qingh, (flsqw A. L.,J. 502.

65

930

THE INDIAN PENAL CODE

[CHAP. XVIII

469. Whoever commits forgery, intending that the docu-
ment forged shall harm the reputation of
of ^ha? mhi reputation* any party, or knowing that it is likely to be
used for that purpose, shall be punished with
imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.

‘ Harm the reputation * — s. 499, infra .

This section punishes forgery with intent to harm the reputation of another.

Procedure : — Non-cognizable — Warrant — Bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the
first class.

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the , day of , at-

forged a certain document, to wit-

intending that the same shall

harm the reputation of XY (or knowing that it is likely to be used for the purpose
of harming the reputation of XY) and you thereby committed an offence punishable
under s. 469 of the Indian Penal Code, and within my cognizance (or the cogni-
zance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Forgery for purpose of harming the reputation : — The simple making
of a false document constitutes the offence of forgery under s. 463 and that it is not
necessary that it should be issued or made known to the injury of a person’s repu-
tation before the offence is completed or the offender is liable to punishment.
A false document may be made in the name of a fictitious person. The publication
of such a document forms no part of the offence. And where a draft petition con-
tained false statements calculated to injure the reputation of a person, the offence
was held to fall within s. 469 (f).

470. A false document made wholly or
in part by forgery is designated “ a forged
document. ” •

False document — s. 470. Forgery — s. 463.

471. Whoever fraudulently or dishonestly uses as genuine
any document which he knows or has reason
forged document Ume a to believe to be a forged document, shall be
punished in the same manner as if he had
forged such document.

Fraudulently — s. 25. Dishonestly — s. 24.

Document — s. 29. Forged document — s. 470.

Reason to believer-*. 26.

Forged document.

This section provides punishment for fraudulently or dishonestly using as
genuine a forged document.

Scope Morgan and Macpherson observe : “'There must be a using of the
document by a person who knows or has reason to believe that it is forged, and such
using must be with the intention to defraud 6t to cause wrongful gain or wrong*

(f) Sheejait Ally, (1808) 10 W. R. (Cr.) 01

SEC. 471 ]

USING FORGED DOCUMENTS

931

ful loss. In deciding whether there has been a ‘using as genuine* of the document
the Courts will advert to the nature of the document. Some documents, such as
receipts, are intended to remain in the holders possession, other documents such
as cheques or promissory notes must be tendered to the persons who are to pay
them. Whatever the document, the dealing with it by the accused person must be
such as to satisfy the Court that he intended to defraud, but it is not necessary that
wrongful gain or wrongful loss should actually be caused by the use ” (g).
Where on a judicial enquiry before a Deputy Magistrate, the accused when asked
whether a document was forged or genuine, stated the document to be genuine and
whereupon the Deputy Magistrate holding it to be forged referred his case to the
Sessions Court which Court convicted him under s. 471 , it was held by the Calcutta
High Court in setting aside the conviction that the person did not ‘ use f the docu-
inent. The use of a forged document which is contemplated by this section is such
use as causes wrongful gain or wrongful loss (h). In order to constitute an offence
within the meaning of this section there should be a ' user ’ of the document by
the accused and it has been held that at least in certain circumstances the filing of a
document may constitute a user (i).

If a party to a suit sets up two different titles and supports one of them with
a false document, he commits an offence under this section, even if it be found
that the other title is good (j). Where the accused during the examination of
a witness for the prosecution in a rioting case handed over to his Muktear rent
receipts which the Muktear tendered to the witness, who said it was not genuine
and then it was initialled by the trying Magistrate and placed on the file by him
for the purpose of being used in the case, the Calcutta High Court held that there
was a sufficient user and the conviction under s. 471 was right (k).

Procedure: — Non-cognizable— Warrant — Bailable — Not compoundable —

Triable by the same Court as that by which the forgery is triable.

When the forged document is a promissory note of the Government of India —
Cognizable Warrant — Bailable — Triable by Court of Session.

Where, on a perusal of the judgment of the Magistrate, it appeared to the High
Court in revision that there should not have been a conviction of the petitioner
under s. 196, the High Court upon the facts found set aside the conviction and
directed the Magistrate to commit the accused to the Court of Session to stand his
trial under this section (1). f

Complaint : — No Court shall take cognizance of an offence under this sec-
tion when such offence is alleged to have been committed by a party to any proceed-
ing in any Court in respect of a document produced or given in evidence in such
proceeding, except on the complaint in writing of such Court or some other Court
of which such Court is subordinate (pn).

The Lahore High Court has held that complaint by Court is necessary under
s. 195 (1) (c) of the Code of Criminal Procedure of 1923 if the offence is committed

(g) Morgan and Macpherson, Penal Code, 419.

(h) Asimuddi Sheikh , (1907) *11 C. W. N. 838 : 5C. L. J. 545.

(i) Asrabuddin Sarkar v. KalidoyaK (1914) 19 C. W. N. 125 : 16 Cr. L. J. 309:
28 I. C. 645, following Rati Jha , (1911) 39 C. 463 : 15 C. L. J. 509 : 16 C. W. N. 623 :
13 Cr. L. J. 201 and Mobarak Ali t (1912) 17 C. W. N. 94 : 13 Cr. L. J. 449 : 15 I. C.
81 ; Krishna Prasad Mandal v. Robindra Nath Dinda, (1911) 13 Cr. L. J. 6 : 13 I. C.
99.

(j) In re Sriramalu Naidu, fl929) 52 M. 532 : 27 Cr. L. J. 994 : A. I. R. (1926)
Mad. 1072.

(k) Rati Jha , (1911) 39 C. 463 : 16CwW. N. 623 : 15 C. L. J. 509 : 13 Cr. L. J.
201 : 14 i. c. 201 distinguishing Ambiha Prasad Sing , (1908) 35 C. 820 : 8 Cr. L. J.

(l) tiara Mohan t>as t (1926) $0 C. ; W. N. 840,

(m) JS. 195 (1) (c), Cr, P. Code, ; *

932

THE INDIAN PENAL CODE [ CHAP. XVI11

in relation to a proceeding in Court (n). The Bombay High Court has recently held
that the word * Court * in s. 195 (1) (c). Criminal Procedure Code, refers only to a
Court of British India an<|, does not include a Court in a Native State (o).

S. 195, Cr. P. Code, is a restrictive section, and there is nothing in that section
and s. 470, Cr. P. Code, to prevent the Munsif from making a complaint under
the ordinary law in respect of the offence under this section (p).

No complaint by Court is necessary for the prosecution with regard to an
offence under this section (for previously using in a solicitor’s firm), where subse-
quent to the complaint being preferred and cognizance being taken thereon, a
suit was instituted in a Court regarding the document in question (q). See com-
mentary on s. 467, supra , under this head.

Where a prisoner was convicted for having dishonestly used as genuine a forged
document, it was held by the Patna High Court that although the District Registrar
was not a civil, criminal or revenue Court within the meaing of s. 476, Cr. P. Code,
he could, as District Magistrate, take cognizance of the offence under s. 190 (1) (c),
and that the presentation of the document to the Sub-Registrar was sufficient
evidence of user of the document (r).

Evidence: — Evidence of other similar acts is admissible under the Indian
Evidence Act (r 1 ). Such evidence has been held to be admissible in England also (s).

Where prisoner was indicted for an attempt to obtain money from
a pawnbroker by false pretence that a ring was a diamond ring, also for an attempt
to obtain money from another pawnbroker by a similar false pretence, it was held
that evidence that he had shortly before offered another false article of jewellery to
another pawnbroker, was admissible to show guilty knowledge (t). Where the
prisoner was indicted for uttering three law-forms with forged stamps impressed
thereon to meet the defence of innocence, counsel for the Crown proposed to give
in evidence several documents from the files of Queen’s Bench Division which were
on forms bearing the prisoner’s particular mark and the stamp on which were, in the
opinion of the expert, forgeries of a similar character as those the subject of indict-
ment, it was held that such documents were admissible (u). Evidence of uttering
a forged acquittance order on a previous occasion was held admissible in a case
where the prisoner was indicted for uttering a certain forged acquittance for money
knowing the same to be forged with intent to defraud (v). Evidence tending to
shew that the accused has been guilty of criminal acts other than those covered by
the indictment is not admissible unless upon the issue whether the acts charged
against the accused were designed or accidental, or unless to rebut a defence
otherwise open to him (w). A series of similar transactions which are not the offence
charged can only be used as evidence of the intention of the person who forged
the document and not as evidence of forgery; It is extremely doubtful whether the
mere filing of a copy is the user of a forged document. A certified copy thereof is
certainly not a forgo! document. But where the offender used the copy knowing or

(n) Khairati Ram v. Malawa Ram, (1924) 5 L. 550.

(o) In re Patel Mulji Bhai Hirabhai, (1925) 49*B. 860.

(p) Dwarka Prosadv. Makund Sarup, (1925) 24 A. L. J. 122 (124).

(q) Superintendent and Legal Remembrancer v. Biswambhar Brahmin . (1929)
56 C. 1041.

(r) Chella Mahto , (1922) 2 P. 459 : 4 P. L. T. 727 ; 24 Cr. L. J. 792 : 74 I. C.
536 : A. I. R. (1924) Pat. 128.

(rl) Act I of 1872 S. 14, ill. (b), (d) ; S. 15, ill. (6), (c).

(s) Samuel Millard, (1813) R. and R. 245 ; Moore , 1 F. and F. 73; Salt, 3 F.
and F. 834 ; George Hough, (1866) R. and R. 120. ,

(t) Francis , 12 Cox; 612.

(u) Colelough, (1882) 15 Cox. 92. ,

(v) Phillips, (1848) 3 Cox. 88.

(w) Makin v. Att,- General of New South Wales , (1894) A. C. 57,

SEC. 471 ]

USING FORGED DOCUMENTS

933

having reason to believe that the entries in the original documents were forgeries
and intending to use them for fraudulent purposes, it was held that such user
amounted to an offence under this section (x).

Charge : — The charge under this section must follow as nearly as possible
the language of the penalty section (465). To import into it all the definitions of
forgery is only to confound the accused, to disregard the law, and give unnecessary
trouble to the Court (y). Where the offence charged is punishable in the same
manner as forgery of the document to which the offence related, the charge should
not be for one under s. 471 alone but under s. 471, coupled with s. 465 or with
s. 466 or s. 467 according to the nature of the document used (z).

In a case under this section which is tried by a Jury, the charge should dis-
tinctly set forth the offence as that of using a document of the nature of those
specified in s. 467 (a).

Where the accused was charged in respect of the 4 using * of separate sets of
receipts filed along with the respective written statements in 3 suits, it was held
that the conviction under this section and s. 469 was right as there was one using
in respect of each set of documents (b).

Form of charge s — I (name and office of Magistrate, etc.) hereby charge
you ( name of accused) 8S follows : —

That you, on or about the day of , at ,

fraudulently (or dishonestly) used as genuine a certain document to wit ,

which you knew or had reason to believe, at the time you so used it a that the said
document was forged, and that you thereby committed an offence punishable
under Ss. 465 and 471 of the Indian Penal Code, and within the cognizance of the
Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

The prosecution must prove —

(1) That the document is a forged one ;

(2) That the accused used the document in question as a genuine document ;

(3) That the accused at the time he used such document knew or had reason
to believe it to be a forged document ;

(4) That the accused used it fraudulently or dishonestly.

For the defence: — (1) Establish by cross-examination or by adducing
evidence that the prosecution has failed to prove the points noted above.

(2) If the plea is that the accused admits having used the document, try to
establish that he used the document without knowing or having reason to be-
lieve that it was a forged one.

(3) If the plea is that the accused had not used the document in question,

substantiate such a plea by cross-examination and contend that it is unsafe to act
upon the evidence of a handwriting expert if that is the only evidence against the
accused (c). -

(x) Krishna Govinda Pal, (1915) 43 C. 783 : 20 C. W. N. 202: 17 Cr. L. J.
130 : 33 1. C. 306.

(y) (1867) 8 W.R. (Cr. L.) 7.

(z) (1865) 3 W. R. (Cr. L.) ,8.

(a) Gangaram Malji, (1869) 6 Bom. H. C. D. (Cr. C.) 43.

(b) Raghunath Das , (1893) 20 C. 413.

(c) Jassu Ram, (1923) 4 L. 246 : 25 Cr. L. J. 375 : 77 I. C. 423 : A. I. R. (1923)

Lah. 622 ; Nerayana Aiyar, (1914) M. W. N. 363 : 15 Cr. L. J. 417 : 24 I. C. 153.
Udhab Santra, (1921) 23 Cr. t. J. 74 : 65 I. C. 426 (P.), see a?so Sreematty Sarojini
Dassi v. 'Haridas Ghose , (1921) 26 C. W, N. (119) — Civil Case; Sagarmall Agarwalla,
(1924) 40 C. L. J. 135. •

{>34 THE INDIAN PENAL CODE [ CHAP. XVIII

(4) If the plea is that the document is not forged, show that the prosecution
has failed to prove that the document is a forged one.

(5) When the user is established by the prosecution, take the plea that the
accused did not use it dishonestly or fraudulently.

Separate conviction : — As the concluding words of this section lead one
to believe that the section is directed against some person other than the person
proved to be the actual forgerer, the actual forgerer cannot be separately punished
under ^ Ss. 466 and 471 (d). A contrary view was held in in re Sriramalu
Naidus case (e). Where a charge is laid against an accused under s. 465 read
with this section the accused cannot be convicted and sentenced under s. 466 read
with this section (f). Where a person is convicted under s. 467 for having forged
a promissory note, separate conviction or sentence under this section is not
illegal (g).

Sentence : — When the statute lays down that for a certain offence as for that
under s. 471 or s. 193 the punishment shall be imprisonment, it means that the
offender shall go to jail and suffer imprisonment till the rising of the Court is a
clear evasion of that intention (h).

If a document was used fraudulently or dishonestly and if it purported to be
valuable security the punishment provided by s. 465 would be that to which the
accused would be liable under s. 471 fi).

Uses as genuine any (forged) document : — The accused was a third party
in a proceeding under s. 1 45 of the Criminal Procedure Code. He produced certain
forged rent receipts before his Muktear and they were entered in a list, which was
filed with the statement made on his behalf. These rent receipts were at once
denounced as forgeries by the second party of the proceeding and they were never
tendered in evidence. It was held that this did not constitute any user of the forged
receipts and the accused could not therefore be convicted of an offence under this
section (j). The learned Judges of the Calcutta High Court referring to the head
note of (35 C. 820) held that it was entirely misleading, and further held that the
filing of a document as the basis of a plaint is an user ; and it then becomes incum~
bent on the person using it to show that he filed the document in ell good faith
believing it to be genuine (k). This case was followed by the Patna High Court
in a case where a document was filed with the plaint in a suit but was not used in
course of the case (1). The Calcutta High*Court recently held that if a document
is filed by the plaintiff in support of his pleading, this is sufficient use within the
meaning of this section, and further held that if a person puts forward a document
as supporting his claim in any matter, whether that document is acted upon by the
Court or used in evidence, is immaterial for the purpose of constituting the use of the
document by the party within the meaning of this section (m). The term ‘ claim *
in s. 463 is not limited in its application to a claim to property (n).

(d) Umrao Lai, (1900) 23 A. 84, see contra in Badri Prasad, (1912) 35 A. 63 :
10 A. L. J. 473.

(e) (1929) 02 M. 532 dissenting from Umrao Lai, (1900) 23 A 84

(f) Mobarak Ali, (1912) 17 C. W. N. 94 : 13 Cr. L. J. 449 : 15 I. C. 81.

(g) In re Madu Chinnaji Reddi , 17 Cr. L. J. 73 : 32 I. C. 665.

(h) Knnki Bava, (1928) 56 M. L. J. 550.

(i) Sagar Mull Agarwala, (1924) 40 C. L. J. 136 (142).

(j) Ambika Prasad Singh, (1908) 35 C. 820. The head note of, this case has

been held to be misleading vide Mobarak Ali, (1912) 17 C. W. N. 94 • 13 Cr L. J.
449: 151. C. 81; Ratijha, (1911) 39 C. 463 ; BansiSheikK, (1924) 51 C.409.

(k) Mabarak Ali, (1912) 17 C. W. N. 94 : 13 Cr. L. J. 449 : 15 I. C. 81.

(l) Idu Jolaha, (1917) 3 P. L. J. 386 : 19 Cr! L. J. 709 : 46 I. C. 293

(m) Bansi Sheikh, (1924) 51 C. 469.

(n) Channan Singh, (1928) 10 L. 545, following Abbas Ali, (1890) .25 C. 512 (F. B.),

Sashi Bhusan, (1893) 15 A. 210 and Kotamraju V enkatarajalu , fl905) 28 M. 90,
decision by five judges. ;

SEC. 471 ]

USING FORGED DOCUMENTS

935

1 uses * : — To constitute an user within the meaning of this section, it is not
necessary that the forged document should be used as evidence in a Court of
Justice. It is sufficient that it is used in order that it may ultimately appear in
evidence or used dishonestly or fraudulently (o). The Madras High Court has
held that the mere production of a document in obedience to the summons of a
Court cannot amount to 4 using * it within the meaning of s. 471 (p).

The filing of a forged document in a Court with the intention of relying on it
at the trial of a case amounts to an attempt to use such document though the docu-
ment itself was not actually used, and the person filing it may be prosecuted for
offences under Ss. 51 1 and 471 (q). The nature of the user is not material (q 1 ).

A deed of divorce is a 4 valuable security * within the meaning of s. 30 of the
Penal Code. The presenting of a forged document of such a nature for registration
and obtaining 4 registration ’ would be using within this section (r).

When in a judicial enquiry under s. 202, Cr. P. Code, against a person accused
of having forged a document, the accused states before the enquiring Magistrate
that the document is genuine, he cannot be said to have used the document so as to
make himself amenable to the provisions of s. 471 even though he knew the docu-
ment to be a forged one. The section applies to the rase of a person who appears
before some other person or before a Court with a document and endeavours to
induce that person or Court to do some act which he or it would not do it it was
known to be a forgery (s). Where the accused applied to the Superintendent
of Police at Poona for employment in the police force, and in support of his appli-
cation he presented two certificates which he knew to be false — one of these certi-
ficates was a wholly fabricated document, while the other was altered by several
additions made subsequently to the issue of the certificate, it was held that the
accused was guilty of offences under Ss. 463 and 471 (t). The Patna High Court
held that the presentation of a forged document before the Special Sub-Registrar
was sufficient evidence of user (u). Where a person during the course of a police
investigation tenders a forged document to the investigating officer, and thereby
causes that officer to do something which he would otherwise not have done, he is
guilty of having used a forged document within the meaning of this section (v).
Where the accused gave his pleader a copy of a document which had been falsified
by an interpolation being made in i^ for the purpose of its being used in the trial
of his suit, it was held that he was guilty, not of an attempt to commit an offence
under this section but of the offence itself (w). Counterfeit of paying-in-slip
of Bank is a valuable security and a case under Ss. 471 and 465 is exclusively
triable by Court of Session (x).

Where accused obtained a prescription from a medical man for one tube to four
tubes, presented the prescription to a chemist and obtained four tubes of Morphia
for him, the Lahore High Court held that the accused was guilty of an offence under

(o) Ramappal Hebara, (1890) 1 Weir 550.

(p) Muthia Chetly, (1911) 30 M. 392, see contra in Ishar Das , (1924) 0 L. 50.

(q) Krishna Prasad v. Rabindra Nath , (1911) 13 1. C, (Cal.) 99; Rati J ha,
(1912) 3fcC. 463.

(ql) Superintendent and Remembrancer of Legal Affairs , Bengal v. Danlteram
Modi , (1932) 59 C. 1233 (1240) ; 58 C. L. J. 349.

(r) Azimooddeen , (1809) 11 W. K. (Cr.) 15 (16).

(s) Asimjiddi, (1907) 11X. W. N. 838 ; 5 C. L. J. 484.

(t) Khandu Singh , 22 B. 768.

(u) " dheta Mahlo t (1923) 2 P. 459 : 4 P. L. T. 727 : 24 Cr. L. J. 792 : 74 I. C.
536 : A. I. R. (1924) P. 128.

(v) Sagan Lal t (1920) 22 Cr. L. J. 274 ; 60 I. C. 674.

(w) Lala Ojha , (1899) 26 C. 863.

(*) Turner , (1924) 29 C. W. N. 868.

936

THE INDIAN PENAL CODE [ CHAP. XVtll

* ' -V

this section (y). Where, in order to support a false claim, a forged document is so *
mentioned in another document that it can be easily identified, it constitutes the \
offence of using, a forged document within the meaning of this section (z). A
person may be convicted of using as genuine a document which he knew to be forged,
though he in the first instance produced only a copy of it (a).

“It is extremely doubtful whether the mere filing of a copy is user of a forged
document. The conditions in which it has been held that the user of a copy
amounts to an offence in the case of Nujum Ali (6 W. R. Cr. 41) and Mulai Singh
(28 All. 402) are clearly distinguishable inasmuch as these were cases where th$
offender used the copy knowing or having reason to believe that the entries in the
original documents were forgeries, and intending to use them for fraudulent
purposes ” (b). Where a process-server filed in Court a forged attakshi to ex-
plain the delay in returning a process, it was held that he was guilty of offences
under Ss. 468 and 471 (c). Where an insolvent uses a forged document with the
intention of supporting his claim to be declared an insolvent, he is liable to con-
viction under s. 464 (d).

User of a document — what amounts to s — It is user of the document
whether the party files the document personally, or as more usually happens,
through a legal representative. Further such legal representative will be
presumed to have filed a document with the knowledge or authority of his
client until the contrary is shown (e).

Production in response to summons or requisition by Court is no
offence under this section : — The Madras High Court has held that the mere
production of a document in obedience to the summons of a Court canuot amount
to ‘ using * it within the meaning of this section and further held that a mere state-
ment that a document is genuine does not amount to using it as genuine (f). But
where the accused was told by the Court to produce copies of the revenue records
in support of his complaint of trespass and he knowingly produced forged copies
as genuine, the Lahore High Court held that it was not an involuntary production
and the accused was rightly convicted under this section (g). Page, J., however,
held a contrary view, viz,, it matters not whether the document was produced by
the accused himself or by his agent (h) or whether it was produced by the accused
of his own motion or pursuant to the order of the Court, if, in the event, he uses
it as genuine fraudulently or dishonestly (i).

If a person, however, voluntarily produces a document in order to support a
claim without being ordered by the Court to do so, held that the act is a user
within the meaning of this section (i x ).

(y) Robinson, (1921) 22 Cr. L. J. 681 (Lah.) : 63 I. C. 687.

(z) In re Sithara Naick, (1916) 16 Cr. L. J. 703 : 30 I. C. 761 (Mad.).

(a) Nujun Ali , (1866) 6 W. R. (Cr.) 41 ; Mulai Singh, (1906) 28 A. 402.

(b) Krishna Govinda Pal, (1916) 43 C. 783 : 20 C. W. N. 262 (264) : 17 Cr. L. T.

130 : 33 I. C. 306. v ' J

(c) In re Kamatchinatha Pillai, (1919) 42 M. 668: 36 M. L. J. 201: (1919)

M. W. N. 433 : 25 M. L. T. 345 : 20 Cr. L. J. 287 : 50 I. C. 175. V

(d) Abdul Ghafoor, (1920) 43 A. 225: 18 A. L. J. 1137: 22 Cr. L. T. 56: 59
I. C. 200.

(e) Ali Ahmed, (1932) 55 C. L. J. 336.

(f) Assistant Sessions Judge of North A root v. Ramammal, (1911) 36 M. 357,
followed in Boddtt Ramaya v. Chittari, (1915) 28 M. L. 1. 486: 29 I C 71

(g) IsharDas, (1924) 6 L. 50. c

, . Jk) Asrabuddin v. KaliDoyal, (1914) 19 C. W. N. 125 ; Ram Prasad Maity, (1908)
12 C. W. N. 1113 : 8 C. L. J. 317. ~

(li) Lalu Ojha, (1899) 26 C. 863.

(i) Per Page, J., in Mohit Kumar Mukherjee , (1925) 52 C. 881 : 27 Cr. L. J.
177 : A. I. R. (1926) Cal. 80. .

(1908V l4T\v‘lf m 3 *8 C 10 c * W - Nl l * 6, Ram Prosai ' Mait y

SEC. 471 ]

USING FORGED DOCUMENTS

937

Where the petitioner was told to produce copies of the revenue records in
support of his complaint of trespass and he knowingly produced forged copies as
genuine (j).

Use must be made by the accused dishonestly or fraudulently :~A

Full Bench decision of the Calcutta High Court has held : “ The word ‘fraudulently*
is used in sections 471 and 464 together with the word 4 dishonestly ’ and presumably
in a sense not covered by the latter word. If, however, it be held that 4 fraudulently’
implies deprivation either actual or intended, then apparently that word would
perform no function which would not have been fully discharged by the word
dishonestly ’ and its use would be a mere surplusage. So far as such a considera-
tion carries any weight, it obviously inclines in favour of the view that the word
4 fraudulently ' should not be confined to transactions of which deprivation of pro-
perty forms a part ” (k). There must be a fraudulent and dishonest using of a
document as genuine before a conviction can be had under this section (1).

If a person, at the time he altered a bill of exchange with a forged acceptance
on it, knew that acceptance to be forged, and meant the bill to be taken as a bill
with a genuine acceptance upon it, the inevitable conclusion is that he intended
to defraud (m).

A general intention to defraud without the intention of causing wrongful gain
to one person or wrongful loss to another, would, if proved, be sufficient to support
a conviction (n).

In a trial upon a charge under s. 471 of fraudulently or dishonestly using
as genuine documents known to be forged, it was found that four forged receipts
for the payment of rent used by the prisoner had been fabricated in lieu of genuine
receipts which had been lost, Brodhurst, J., held that with reference to the definition
of the terms 4 dishonestly ’ and 4 fraudulently * in Ss. 24 and 25, the prisoner upon
the facts as found, had not committed the offence punishable under this section (o).

The creditors of a police constable applied to the District Superintendent of
police that Rs. 2 might be deducted monthly from the debtor’s salary until the debt
was satisfied ; upon an order being passed directing that the deduction asked for
should be made, the debtor produced a receipt purporting to be a receipt for Rs. 18
the whole amount due. It subsequently appeared that the receipt was one for
Rs. 8, which the debtor had altered by adding the figure ‘1 ’ so as to make it appear
that the receipt was for Rs. 1 8. It was held by the Allahabad High Court that
the real intent in the prisoner’s mind being to induce his superior officer to refrain
from the illegal act of stopping a portion of his salary, the Court in a criminal case
ought not to speculate as to some other intent over and above this that might have
presented itself to him, that it did not necessarily follow that he contemplated
setting up the altered receipt to defeat his creditor’s claim, and that therefore he
ought not to have been convicted of an offence under this section (p).

Where the accused made and used a false document with intent to cause
a person to enter into an express contract for service, i.e., to. engage the accused as a
police officer, it was held that the act of the accused came within the terms of s. 463
and was indeed previous illustration (k) given in the Code under s. 464 fq).

(j) Ishar Das, (1924) 6 L. 50.

(k) Abbas Ali, (1890) 25 C. 512 (521) (F. B.) ; Surendra Nath Ghosh, (1910) 38 C.
76 : 14 C. W. N. 1070 ; Ahmed Alt, (1925) 42 C. L. J. 215.

(l) JahaBux, (1807) 8 W. R. (Cr.) 81.

(m) Cooke, (1838) 8 C. and P. 582 ; Hill, (1838) 8 C. and P. 274.

(n) DhunumKazee, (1882) 9 C. 53; Causley, (1016) 43 C. 421; Bansi Sheikh,
(1923) 51 C. 409 approved of in Jhabbar Ali, (1928) 50 C. 194. : 49 C. L. J. 193.

(o) Shio Dayal, (1885; 7 A. *59.

(p) Syed Hussain, (1883), 7 A. 403.

(q) Khandu Singh , (1896) 22 B. 768. ,

938

THE INDIAN PENAL CODE [ CHAP- XVIII

Where the accused, a pleader’s clerk, altered the date in the copy of a decree
in order to hide his fault in not filing the execution petition in time and filed it with
the copy of the altered decree, it was held that the accused was not guilty under
s. 467, the copy of the decree not being a valuable security, but was guilty of the
offences under Ss. 193 and 471 (r).

A Sunnud conferring a title of dignity on a person is not a valuable security
within the meaning of the Penal Code. Where, therefore, the accused, in order to
obtain a recognition from a Settlement Officer that they were entitled to the title of
4 Loskur ,* filed a forged Sutmud before that officer purporting to grant that title,
it was held by the Calcutta High Court that they could not be convicted under
Ss. 471 and 464, as the intention of the accused was not to cause wrongful gain or
wrongful loss to any one but only to produce a false belief in the mind of the
Settlement Officer, that, they were entitled to the dignity of ‘ Loskur * which could
not be said to constitute 4 an intention to defraud ’ (s).

* dishonestly or fraudulently * i — See commentary on s. 463, supra.— The
expression 4 intent to defraud ’ implies conduct coupled with intention to deceive
and thereby to injure, in other words, 1 defraud * involves two conceptions, namely,
deceit and injury to the person deceived, that is infringement of some legal right
possessed by him, but not necessarily deprivation of property (t).

* knows or has reason to believe to be a forged document ’ : — The

words in s. 471 4 knows or has reason to believe ’ are of general application, and
the allegation must be proved as strictly in the case of a pleader as in the case of any
one else (u).

A is accused of fraudulently delivering to B a counterfeit rupee. The question
is, whether delivery of the rupee was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counter-
feit rupees to C, D and E, are relevant, as showing that the delivery to B was not
accidental (v).

In a case in which the accused was charged with dishonestly using as genuine
a pottah which he knew to be forged, and in which there was a fraudulent insertion,
it was held that it was not necessary to prove that he personally inserted the word,
but it was sufficient if it was inserted with his knowledge (w).

Holmwood and Mullik, J.J., held that ivwas extremely doubtful whether the
mere filing of a copy was user of a forged document. A certified copy thereof
is certainly not a forged document. But it is otherwise where the offender used the
copy knowing or having reason to believe that the entries in the original documents
were forgeries, and intending to use them for fraudulent purposes (x).

To support a conviction of the offence under this section, there must be a using
of a document by a person who knows or has reason to believe that it is forged (y).

Evidence to prove similar other documents raises a presumption of the guilty
knowledge on the part of the accused (z).

(r) Godiavedu Balaya, (1902) 1 Weir 551.

(s) Jan Mahomed, (1884) 10 C. 584 distinguished in Khandu Singh , (1896) 22
13. 768 (769).

(t) Surendra Nath Ghose, (1910) 38 C. 75 (89, 90) : 14 C. W. N. 1076 (1085)
dissented from by Page, J. f in Mohit Kumar Mukherjee, (1925) 52 C. 881 : A. I. R.
(1926) Cal 89, but followed in Ahmed Ali, (1925) 42 C. L. J. 215 (218).

(u) Ranchoddas Nagardas , (1896) 22 B. 317 (320). *

(v) Evidence Act I of 1872, s. 15 ill. (c).

(w) Hemoruddi Mundal , (1868) 9 W. R. (Cr.) 22.

(x) Krishna Govinda Pal, (1915) 43 C. 783.

(y) Bholay , (1872) 17 W. R. (Cr.) 32.

(z) Millard, (1913) R. and R. 245 ; Moore, 1 F. and f! 73 ; Ball , (1807) R. and R.
132; Colelough , (1882) 15 Cox. 92.

SEC. 472 ]

USING FORGED DOCUMENTS

939

The filing of a document as the basis of a plaint or as a necessary sequel to
the pleas in the plaint is itself a user, and it then becomes incumbent on the
person using it-to show that he filed the document in all good faith believing it to be
genuine (a). Where at the time the putwari put up the mutation papers before
the tahsildar , the accused w?s present and he simply asked the tahsildar to attest
his mutation on the vendor telling the tahsildar that he had sold less than what
was shown in the mutation paper, the accused was asked to produce the
registered deed and it was then discovered that the share was altered, it was held
that the offence under this section was committed (b). Where a part of a docu-
ment was altered and made with the intention of causing it to be believed that it
was made at a time at which it was not really made and the accused used it knowing
it to be forged, it was held that an offence under this section was committed,
although there was not sufficient evidence to prove a charge of forgery (c).

The words 4 reason to believe * are much stronger than ‘ suspect * (d).

472 . Whoever makes or counterfeits any seal, plate or
other instrument for making an impression,
intending that the same shall be used for
with intent to commit the purpose of committing any forgery
dcr g section n 4 « 7 ablc un which would be punishable under section

467 of this Code, or, with such intent, has .in
his possession any such seal, plate or other instrument, knowing
the same to be counterfeit, shall be punishable with transporta-
tion for life, or with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

Counterfeits — s. 28. Possession — s. 27.

This section punishes making or possessing counterfeit seal, etc., with
intent to commit forgery punishable under s. 467. The next section deals with the
same offence but the only distinction is that the intent to commit forgery is not of
such a serious nature as is punishable under s. 467. The provisions of this section
and the next may be compared with the provisions of Ss. 235, 255 and 256 which
relate to the possession of instruments or materials for the purpose of counterfeit-
ing coins or stamps.

Procedure : — Non-cognizable — Warrant Bailable — Not compoundable —

Triable by Court of Session.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you
( name of accused ) as follows : —

That you, on or about the day of , at

made (or counterfeited) a seal (or plate or instrument) ex ,

for making an impression, intending that the same shall be used for the purpose
of committing forgery punishable under s. 467 of the Indian Pfcnal Code, (or had in
your possession the seal or plate or instrument intending that the same shall be used
for the purpose of committing any forgery), and that you thereby committed an
offence punishable under s. 472 of the Indian Penal Code and within the cognizance
of the Court of Session (or the High Court).

(a) Mobarak Ali % (1912) 17 C. W. N. 94 : 13 Cr. L. J. 440 : 15 I. C. 81.

(b) Karim Dad , (1913) P. L. R. No. 273 of 1914 : P. R. No. 25 of 1913 (Cr.) :
14 Cr. L. J. 667 : 21 I. C. 907.

S The Public Prosecutor v, Ramraju Vcnkatappayya, 16 Cr, L. J, 701 (Mad.).

) Rango Timaji, (1880) 6 B. 402 followed in Kannaippa Naicker, (1913)
M. W. N. 696.

940

THE INDIAN PENAL CODE

t CHAP. XVIII

And I hereby direct that you be tried by the said Court on the said charge.

For commentary refer to c&nmentary under Ss. 325, 255 and 256.

473 . Whoever makes or counterfeits any seal, plate or
other instrument for making an impression,
coSTt! intending that the same shall be used for
with intent to commit the purpose of committing any forgery which
otherwise* pun,shabIe would be punishable under any section of
this Chapter other than section 467, or, with
such intent, has in his possession any such seal, plate or other
instrument, knowing the same to be counterfeit, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session.

Charge — same as under s. 472, supra, only substituting ‘ punishable under
any section of this chapter other than s. 467 ’ for ‘ forgery which would be punish-
able under s. 467 of this Code ’ in s. 472.

' 474. Whoever has in his possession any document, knowing
Having possession of the same to be forged, and intending that the
document described in same shall fraudulently or dishonestly be
toSg it to be forged used as genuine, shall, if the document is
and intending to use it one of the description mentioned m section
as genuine. 466 of this Code, be punished with imprison-

ment of either description for a term which may extend to seven
years, and shall also be liable to fine ; and if the document is one
of the description mentioned in section 467, shall be punished with
transportation for life, or with imprisonment of either description,
for a term which may extend to sev,en years, and shall also be
liable to fine.

Possession— s. 27. Document— s. 29.

Fraudulently— s. 25. Dishonestly— s. 24.

This section punishes a person who has in his possession any document
described in s. 466 or s. 467, knowing it to be forged and intending to use
it as genuine. The intention of making a fraudulent or dishonest use of the forged
document is the gist of the offence under this section and the next two sections.

For analogous provisions compare Ss. 242, 243 and 259, supra.

Procedure s — Non-cognizable — Warrant — Bailable Not compoundable—

Triable by Court of Session.

Complaint: — S. 195 of the Criminal Procedure Code has no application
to the provisions of this section. It has been held by the Calcutta High Court that
in a prosecution under this section no sanction is necessary (e).

Now under the amended Code of Criminal Procedure, instead of ‘sanc-
tion ’ complaint in writing of the Court is required. S. 195 (c) does not mention

(e) Asrabuddin Sarkar v. Kali Day a’, (1914) 19 C. ,W. IN. 125 : 16 Cr. L. J. 309 :
28 Ir C. 645, see Contra in Khairati Ram y. Malawa Ram, (1924) 5 L. 550.

SEC. 475 ]

USING FORGED DOCUMENTS

941

this section and in view of the above decision of the Calcutta High Court no such
complaint by the Court is required. But, for the prosecution of an offence under
s. 475 or s. 476, such complaint would be required.

Where the offence committed is really one under s. 471, it is illegal to reduce
the charge to one under s. 474 and prosecute the accused without a complaint under

s. 476, Cr.P. Code (0.

Where a village Munsif is alleged to have fabricated an entire record of the
whole of a proceeding purporting to have been tried and decided by him under
the Village Courts Acts, held , previous sanction under s. 197, Cr. P. Code, was
necessary (g).

To support a charge under this section, it is necessary for the prosecution to
prove : —

(1) That the documents in respect of which the charge is brought are forged ;

(2) That the accused knew them to be forged ;

(3) That he was in possession of them ;

(4) That he intended that they should be fraudulently or dishonestly used

as genuine ;

(5) That each of the documents is of the description mentioned either in

s. 468 or s. 467 (h).

Where counterfeit seals and forged documents were found in the prisoner’s
possession, and he could give no satisfactory information as to how he became
possessed of them it was inferred that he kept them with the intention of using them
fraudulently (i).

Where an intention to use a forged document was inferred from the facts of
the case and from the conduct of the prisoner, the accused was convicted under this
section (j).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

had in your possession any document of the description mentioned in s, 466 (or 467)
of the Indian Penal Code knowirfg the same to be forged and intending that the
same shall be fraudulently or dishonestly used as genuine, and you thereby com-
mitted an offence punishable under s. 474 of the Indian Penal Code, and within the
cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

475. Whoever counterfeits upon, or in the substance of.
Counterfeit device any material, any device or mark used for

authenticating sed docu- the purpose of authenticating any document
ments described in described in section 467 of fhis Code, intend-

ing tl counterfeit marked ing that such device or mark shall be used
material. for the purpose of giving the appearance of

authenticity to any document then forged or thereafter to be
forged on such material, or who, with such intent, has in his

(f) Ibrahim, (1927) 29 Cr. L. J. 849 7 111 I. C. 433 (Cal.).

(g) Sivaramakrishna Ayyar v. Sheshappa Naidu, (1928) 52 M. 347,

(b) Abaji Ramchandra, (1891) 16 B. 165 (168).

(i) Kissio Soonder,\M5) 2 W. R. (Cr.) 5.

(j) Hatim Moonshee, (1867) 8 W. 1$. (Cr.) 11.

942

THE INDIAN PENAL CODE

[CHAP. XVIII

possession any material upon or in the substance of which any
such device or mark has been counterfeited, shall be punished
with transportation for life, or with imprisonment of either de-
scription for a term which may extend to seven years, and -shall
also be liable to fine.

Counterfeits — s. 28. Document — s. 29.

Possession — s. 27.

This section punishes counterfeiting device or mark used for authenticating
documents described in s. 467, or possessing counterfeit marked material intending
that such device or mark shall he used for the purpose of giving the appearance of
authenticity to any document then forged or thereafter to be forged on such material.

Procedure : — Non-cognizable — Warrant Bailable — Not compoundable —

Triable by Court of Session.

Complaint : — No Court shall take cognizance of an offence under s. 475 or
s. 476 of the Penal Code, when such offence is alleged to have been committed
by a party to any proceeding in any Court in respect of a document produced or
given in evidence in such proceeding, except on the complaint in writing of such
Court or some other Court of which such Court is subordinate (k).

To support a charge under the latter part of this section, it is necessary for the
prosecution to prove —

(1) that the accused was in possession of the papers referred to in the charge ;

(2) that the devices or marks on those papers were counterfeited on them ;

(3) that the devices or marks were such as are used for the purpose of

authenticating any document described in s. 467 of the Indian Penal
Code ;

(4) that the accused intended that the devices or marks should be used for

the purpose of giving the appearance of authenticity to documents
either then forged or thereafter to be forged (1).

In order to support a conviction under this section, it is necessary to pjpve
that the document which the accused has in his possession must have sdme counter-
feit device or mark upon it, and it must be proved that the accused has the docu-
ment in his possession with the intent to use such counterfeit mark or device
for the purpose of giving the appearance of authenticity to the document, and
besides, the document must be a document which comes under s. 467 (m).

Charge s — Where the charge imputed to the accused the possession of some
exhibits mentioned and other papers, and the ‘ other papers ’ referred to comprised
not less than 5£ documents, the Bombay High Court held that the charge was vague,
and the charge should have distinctly specified the particular papers bearing a
counterfeit mark or device which it was alleged that the accused had in his pos-
session with the intent mentioned in the section (n).

Form of charge : — I (name and office of Magistrate , etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of , at ■ ,

counterfeited upon (or in the substance of) any material^ to wit * , any

device or mark, to wit used for the purpose of authenticating any

(k) S. 195(1) (c) of the Code of Criminal Procedure of 1923.

(l) Abaji Ramchandra, (1891) 16 B. 165 ; Parbhudas, (1874) 11 B. H. C. R, 90.

(m) Raghunondan Puttronuvees, (1871) 15 W. R. (Cr.)i 19.

(n) Abaji Ramchandra, (1891) 16 B. 165*

SECS. 476-77 ]

USING FORGED DOCUMENTS

943

document, viz., described in s. 467 of the Indian Pena] Code (or that you were in

possession of any material, to wit , upon or in the substance of) which

any device (or mark) shall be used for the purpose of giving the appearance of
authenticity to some document then forged (or to be forged on such material) and
that you thereby committed an offence punishable under s. 475 of the Indian
Penal Code, and within the cognizance of the Court cf Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

476. Whoever counterfeits upon, or in the substance of,

Counterfeiting device material, any device or mark used for

or mark used for the purpose or authenticating any document
mmt- n ntw n th!.n th^ other than the documents described in

ments other than those . ali c \ * \ • i* 1

described in section 467, section 40/ or this Lode, intending that

?dtS n LS to ' such device or mark shall be used for the
purpose or giving the appearance of
authenticity to any document then forged or thereafter to be
forged on such material, or who, with such intent, has in his
possession any material upon or in the substance of which any
such device or mark has been counterfeited, shall be punished
with imprisonment of either description for a term which rftay
extend to seven years, and shall also be liable to fine.

This section is similar to the last with the only difference that the document
referred to is ‘ other than the documents described in s. 467.’

See commentary on s. 475.

Procedure : — Non-cognizable — Warrant — Not bailable — Not compoundable
— Triable by Court of Session.

Complaint in writing of Court is necessary for prosecution under this section,
*vide s. 195 (1) (c), Cr. P. Code.

Charge : — Same as under s. 475, substituting * other than the documents
d^cribed in s. 467 * for ‘ any document described in s. 467.’

477. Whoever fraudulently or dishonestly, or with intent

Fraudulent canceiia- to cause damage or injury to the public
of^wiil^^uthodty or to an y P erson > cancels, destroys or defaces,
adopt, or valuable secu- or attempts to cancel, destroy or deface, or
ri ‘y- secretes or attempts to secrete any document

which is or purports to be a will, or an authority to adopt a son,
or any valuable security, or commits mischief in respect to such
document, shall be punished with transportation for life, or with
imprisonment of either descripion for a term whieh may extend
to seven years, and shall also be liable to fine.

Fraudulently — s. 25.
Injury— s. 44.
Persons— s. 1 1 .

Will— s. 31.

Dishonestly — s. 24.
Public— s. 12.

* Document — s. 29.

Valuable security — s. 30.

Mischief — s. 425.

This section punishes fraudulent or dishonest cancellation, destruction,
defacement, e/c., of a will or tin authority to adopt a son or any other valuable

944

THE INDIAN PENAL CODE

[CHAP. XVIII

security. Logically this section should have been placed after s. 467 which
punishes * forgery of a valuable security', but since this section does not deal with
4 forgery’, it has been placed after the offence of ‘ forgery * has been exhausted.
It has been placed under the category of ‘ forgery * as fraudulent or dishonest
cancellation, destruction, etc., of a valuable security may be termed ' forgery.'

Procedure: — Non-cognizable— Warrant — Not bailable — Not compound-
able — Triable by Court of Session.

Separate convictions under Ss. 467, 471 and 477 are illegal : — Where
the act of the accused which constitutes forgery is the same as the act which
amounts to fraudulent destruction or defacement or cancellation of the document,
he cannot be convicted of separate offences under Ss. 467, 471 and 477 (o).

Charge : — I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the — - — day of , at ,

fraudulently [(or dishonestly or with intent to cause damage or injury to XY (or
to the public)] cancelled (or destroyed or defaced or attempted to cancel, destroy
or deface or secreted, or attempted to secrete, or committed mischief in respect of)
a document which is or purported to be a will (or an authority to adopt a son, or
any valuable security) and that you thereby committed an offence punishable under
s. 477 of the Indian Penal Code, and within the cognizance of the Court of Session
(or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Fraudulently destroying or defacing a will or authority to adopt or
valuable security : — Where the evidence establishes that the prisoner took and
tore up a pottah, and that is a document which is a valuable security, the Calcutta
High Court held that the conviction and sentence under this section was legal (p).

A person tearing to pieces a registered conveyance is guilty under this section
and it is immaterial whether the document was invalid for want of consideration^
or not (q).

Destruction or attempted destruction of a promissory note has been held to be
an offence punishable under this section and is triable by a Sessions Court
only (r).

The fact that a document has not been stamped, and is not, therefore, receiv-
able in evidence, does not prevent its being a * valuable security ’ within the meaning
of this section (s).

A person may secrete a document not only when the existence of the docu-
ment is unknown to other person and for the purpose of preventing the existence
of the document coming to the knowledge of anybody, but also when the existence
of the document i$ known to others. But it is not necessarily enough to show that
upon an occasion on which it became his duty to produce the document he failed to
discharge that duty, though it may be an urgent piece of evidence the fact that a
man perjures himself by denying the existence of a document which, to his know-
ledge, is in his custody would be a still more urgent piece of evidence (t).

(o) Pirbhu Dial, (1912) P. L. R. No. 52 of 1913 :.P. R. No. 4 of 1913 (Cr.) :
4Cr. L. J. 183: 19 I. C. 183.

(p) Nittar Mundle, (1865) 3 W. R. (Cr.) 38.

(q) Kotha Goundan, (1890) 1 Weir 554.

(r) In re Madurai , 1888) 12 M. 54.

(s) (1874) 7 M. H. C. R. (App.) xxvi.

(t) Sushen Behari Roy, (1930) 58 C, 1051 (S. B.), *

SEC. 477-A ] FALSIFICATION OF ACCOUNTS

945

Where the complainant alleged that the accused had wilfully and dishonestly
destroyed two documents — one said to be a written contract, by which the com-
piainant’s firm sold to the accused or to his firm certain quantity of shellac and
another spoken of sometimes as a tender and sometimes as a delivery order
bearing endorsement in favour of the complainant's firm, the Calcutta High Court
held that if the documents were not found to be * valuable security ’ within the
meaning of this section, other sections of the Code, e.g. 9 s. 204, may be applicable (u).

Where the prosecution failed to show that the act of the accused in destroying
a pottah was done with the intention of causing damage or injury to the complainant,
the Allahabad High Court held that the act of destroying the pottah might have been
a very foolish act but the conviction of the accused under this section could not be
maintained and accordingly set aside the conviction (v).

The fraudulent secretion of any document purporting to be a will would
constitute an offence within the meaning of this section quite apart from its
validity, as defined in s. 3 of the Probate and Administration Act (w).

477-A. Whoever, being a clerk, officer or servant, or em-
_ , .. . , ployed or acting in the capacity of a clerk,

counts! ficaU ° n ° aC officer or servant, wilfully, and with intent
to defraud, destroys, alters, mutilates or
falsifies any book, paper, writing, valuable security or account
which belongs to or is in the possession of his employer, or has
been received by him for or on behalf of his employer, or wilfully,
and with intent to defraud, makes or abets the making of any
false entry in, or omits or alters or abets the omission or altera-
tion of any material particular from or in, any such book, paper,
writing, valuable security or account, shall be punished with im-
prisonment of either description for a term which may extend
to seven years, or with fine, or with both.

Explanation . — It shall be sufficient in any charge under this
section to allege a general intent to defraud without naming any
particular person intended to‘ be defrauded or specifying any
particular sum ..of money intended to be the subject of the fraud,
or any particular day on which the offence was committed.

Clerk or servant — s. 381. Valuable security — s. 30.

Omission — s. 33. Abets — s. 107.

This section prescribes punishment for falsification of accounts.

Legislative changes ! — This section was added by the Indian Criminal Law
Amendment Act III of 1895, s. 4, in order to meet a glaring defect ia the law pointed
out by the Calcutta High Court in Shama Charon Sens case (x).

Analogous law : — This section is borrowed from the English statute (38 and
39 'Viet., c. 24), the Falsification of Accounts Act, s. 1 of which runs as follows : —

(u) Debendranath Upadhyq v. Bhagirathi Mahto, (1021) 38 C. L. J. 158.

(v) Ram Harakh Pathak, (1925) 23 A. L. J. 990— where Jawahir Thalmr,
(1916) 38 A. 430 and G. S. Ramaswami Ayar, (1017) 41 M. 689 were distinguished.

(w) Mali Mathu Servay, (1926) 4 R. 251 (256) : 27 Cr. L. J. 1230 : A. I. R.
(1926) Rang. 202.

(x) Proceedings Legislative Council, Gazette of India, Part VI, dated 31st
March, 1894, p. 132.

66

946

[chap, xvni

THE INDIAN PENAL CODE

“ That if any clerk, officer or servant, or any person employed or acting in the
capacity of a clerk, officer, or servant, shall wilfully and with intent to defraud,
destroy, alter, mutilate, or falsify any book, paper, writing, valuable security, or
account which belongs to or is in the possession of his employer, or has been received
by him for or on behalf of his employer, or shall wilfully and with intent to defraud,
make or concur in making any false entry in, or omit or alter, or concur in omitting
or altering, any material particular from, or in any such book, or any document, or
account, then in every such case the person so offending shall be guilty of a mis-
demeanour, and be liable to be kept in penal servitude for a term not exceeding
seven years, or to be imprisoned with or without hard labour for any term not exceeding
two years. “

S. 2 runs as follows : —

“ It shall be sufficient in any indictment under this act to allege a general intent
to defraud without naming any particular person intended to defraud. "

Thus it will be seen that this section is virtually the same as Ss. I and 2 of the
English statute and as such the cases decided in England will apply to an offence
under this section.

The intention of the English Act, 4 Falsification of Accounts Act,* 1875 (38
& 39 Viet., c. 24) was to punish the falsification by clerks, officers, servants, or
others of their employers* accounts (y).

It has been held that a servant may be convicted under the Falsification of
Accounts Act, who wilfully and with intent to defraud tampers with a mechanical
instrument (a taxi-meter) used by his employer tor registering figures from which
an account is subsequently prepared as between parties (z). A person may be guilty
of making a false entry, although he does not make the entry himself but fraudulently
and wilfully causes the entry to be made (a).

Scope This section (477-A) is almost identical with section 1 of the
Falsification of Accounts Act, 1875 (38 & 39 Viet., c. 24). The removal of new
court-fee stamp from documents and substitution in their place of used court-
fee stamps cannot be brought within the scope of this section (b).

S. 477-A deals only with a special class of forgeries. Where a Judge found
that the object of the accused in making the false entries was to cover the defalca-
tion made by him, and convicted the accused, the Allahabad High Court held that
the conviction for forgery was not sustainable (c).

Procedure: — Non-cognizable — Warrant— Bailable — (d)— Not compoundable
— Triable by Court of Session , Presidency Magistrate or Magistrate of the first
class (e).

Europeans to claim trial by jury — Effect of the amendment of the
Code of Criminal Procedure by Act XII of 1923 1 Where a European
British subject who had claimed to be tried by jury was committed on the 1 1th
June, 1923, to the Court of Session on charges under s. 420 and this section when
the provisions of Chapter XXXIII of the Code of Criminal Procedure oi 1898
relating to trials of European British subjects by jury were in force, but the right
to be tried by jury was taken away by Act XII of 1923 which came into operation
on the 1st September, 1923, and the accused appeared before the Sessions Judge

258 .

(y)

M

(a)

(b)

Paulin , (1906) 1 K. B. 7.

Solomons , (1909) 2 K. B. 980.

BuU t (1884) 15 Cox. 564. •

Bibhudhananda Chakravarty , (1919) 47 C. 71 : 23 C. W. N. 936 : 30 C. L. J.

(c) Shujauddin Ahmad, (1922) 20 A. L. J. 662. v

(d) The word “Bailable'* was substituted for “Not bailable*’ by Act XVIII

of 1923. , 7

(e) These words were substituted^ “ Court of Session “ by Act XVIll of 1923.

SEC. 477-A ]

FALSIFICATION OF ACCOUNTS

947

in October, 1923, and asked for trial by a mixed jury, the Lahore High Court held
that the right of trial by a jury which was vested in the accused was not a mere
matter of Procedure and that the accused, who had the right under Chapter XXXIII
of the Code of Criminal Procedure of 1898 when he was committed for trial, could
not be deprived of it by the amendment of the Code by Act XII of 1923 (f).

Examination under S. 342— if can be dispensed with— While on the
completion of the examination-in-chief of the prosecution witnesses the accused
was examined and a charge was framed under s. 409, subsequently another
prosecution witness was examined and accused was examined and a charge
framed under this section and thereafter prosecution witnesses were examined and
re-examined and the accused filled a written statement and it was contended
that s. 342, Cr. P. Code, was not complied with, held , the filing of written statement
relieved the Magistrate from the necessity of examining him orally in reference
to the matters elicited in cross-examination and re-examination of piosecution
witnesses (g).

Charge : — The Explanation to this section says : “ It shall be sufficient in
any charge under this section to allege a general intent to defraud without naming
any particular person intended to be defrauded or specifying any particular sum
of money intended to be the subject of the fraud, or any particular day on which
the offence was committed.'*

The alteration in the law by s. 222 (2) of the Code (of Criminal Procedure)
of 1898 does not apply to a charge under this section. It applies only to criminal
breach of trust or dishonest misappropriation of money (h). A series of alterations
in accounts made to cover a defalcation might all be charged in one charge under
the provisions of s. 477-A, and there are not three distinct offences, committed
by an accused person merely by reason of the fact that he makes more than one
false entry to cover one defalcation. A joinder of three charges under s. 409 with
three under s. 477-A relating to different transactions is not covered by any of the
exceptions provided in the Code of Criminal Procedure and is fatal (i). The
Madras High Court has held that it is illegal to try a person on a charge which
alleges three distinct offences under s. 409 and three other distinct offences under
this section and the error is an illegality which wholly vitiates the trial (j). The
Allahabad High Court has held the same view (k). The Bombay High Court also *
has held the same view (1). The Patna High Court has held similar view (m).

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge
you (name of accused ) as follows : —

That you, (on or about the day of ), (if the date

is not known do not specify the particular day as that is not material under this section )

at , being a clerk (or employed or acting in the capacity of a clerk or

officer or servant) wilfully and with intent to defraud, destroyed (or altered, muti-
lated or falsified) a certain book (or paper, or writing or valuable security or account

— ■ ■■■ — ■ — — — w — • " —

(f) Fitzmaurice , (1925) 6 L. 262. t

(g) Syed Mohiuddin, (1925) 4 P. 488.

(h) Mati Lai Lahiry, (1899) 26 C. 560 (564).

(i) Raman Behary Das, (1913) 41 C. 722 : 18 C. W. N. 452, followed in Profulla
Chandra Kharghoria, (1930) 34 C. W. N. 925. distinguished in Surendra Nath Goswami ,
(1932) 54 C. L. J. 470.

(j) Kasi Viswanathan , (1907) 30 M. 328, following Subramania Ayyer , (1901)

25 M. 61 (P. Q.). .

(k) Kalka Prasad , (1915) 38 A. 42 ; Sujauddin Ahmed, (1922) 44 A. 540 :
20 A. L. J. 662, following Sheo Saran Lai, (1920) 32 A. 219.

(l) Mantnat K. Mehta, (1925) 49 B. 892, following Nathulal Bapuji, (1902) 4
Bom 1 . L. R% 433 ; Kasi Viswanathan , (1907) 30 M. 328 and Raman Behari Das, (1913)
41 C. 722 (726) and distinguishing in re Balgangadhar Tilak , (1908) 33 B. 221.

(m) • Michael John, (1931) 10 P. 463,

948 THE INDIAN PENAL CODE [ CHAP. XVIII

Ni-
eto.) to wit , which belonged to (or which was in the possession ©I)

XY t you r employer (or wilfully and with intent to defraud, made or abetted
the making of a false entry in) or omitted or altered or abetted the omission
or alteration of a material particular from or in a book) (or paper or writing or
valuable security or account, namely, (describe matter inserted or omitted and the
book or papers, etc.) which belonged, to or which had been received by you for
or on behalf of your employer, and that you thereby committed an offence
punishable under s. 477-A of the Indian Penal Code, and within my cognizance (or
the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Clerk, officer or servant or employed or acting in the capacity of a
clerk, officer or servant ; — These words would include a person who undertakes
to perform and does perform the duties of a clerk or servant, whether in fact he is a
clerk or servant or not and though he is under no obligation to perform such duties
and receives no remuneration (n). The Bombay High Court has held that under
this section whether a person is a partner or not in a firm, if he fills the capacity
of its clerk or servant, he comes within its provisions (o). Where both the Manage
ing Director and the Manager of the Head Office of the Hindusthan Bank, Multan,
had" ‘ falsified * the balance-sheet of a particular year and the books of the bank as
showing profits where there were no profits, they were both held guilty under this
section (p).

Falsification by act or omission : — Where the prisoner was a collector of
money, and from time to time he had to render an account of the money collected
by him to another person in his master's employment, and the prisoner received
£8 14s. I0J. from a particular gentleman but he accounted for £5 only, it was held
that his conviction under the Falsification of Accounts Act, 1875, was right (q).

Where the defendant was indicted at the Central Criminal Court under s. 1
of the Falsification of Accounts Act, 1875, for omitting or concurring in omitting,
material particulars from the cash book, and was convicted, it was held that the
Court had jurisdiction to try the case and the defendant was rightly convicted (r).

* wilfully and with intent to defraud 9 s— For ‘ intent to defraud* see
commentary under s. 463.

The Bombay High Court agrees with *the view of the Madras and Calcutta
High Courts in the interpretation therein put upon the expression * intent to
commit fraud ’ and the word * fraudulently and held that it is a fraud to conceal
a fraud and to make the party believe that the fraud had been committed (s), but
the Bombay High Court in an earlier case held that falsification of a record made
in order to conceal a previous act of negligence not amounting to fraud does not
amount to forgery within the meaning of Ss. 463 and 464 (t). The Calcutta High Court
has held that even if the intention with which false entries in a book or register

(n) Annasami A iyanger, (1901) 1 Weir 554, following Foulkles , L. R. 2 C. C. R.

150.

(o) halloo Ghella , (1904) 6 Bom. L. R. 553.

(p) Daulat Rai, (1915) P. L. R. No. 167 of 1915 : P. R. No. 28 of 1915 (Cr.):
P. W. R. No. 23 of (1915) (Cr.) : 10 Cr. L. J. 473 : 20 I. C. 105.

(q) Butt, (1884) 15 Cox. 564.

(r) Oliphant, (1905) 2 K. B. 67.

(s) Balkrishna Waman Kulkarni, (1913) 37 B. 666 (074) : 15. Bom. L. R. 708:
14 Cr. L. J. 518 : 20 I. C. 998 dissenting from Jiwanand, (1882) 5 A. 221 ; Masher
Hussain , (1882) 5 A. 553 and Giridhari Lai, (1886) 3 A. 653 ; and following Sabapati,
(1888) 11 M. 411 ; Lalit Mohan Sarkar , (1894) 22 C. 313, Rashbehary Das , (1908) 35
C. 450.

(t) Shanker , (1879) 4 B. 057 not referred to in 'Balkrishna Waman Kulkarni,

(1913) 37 B. 666 (674), •

949

SEC. 477-A ] OF TRADE AND PROPERTY-MARKS

were made was to conceal a fraudulent or dishonest act previously commited, the
intention would be to defraud and the case would fall within this section (477-A) (u).
The Allahabad High Court has held that if together with the intention of deceiving
there be an attempt to obtain an undue advantage, there would be, in law, an
intent to defraud (v).

'wilfully — This word has not been defined in the Code.

An Attakshi made by a process-server with false signatures in order to defraud
a District Munsif into excusing his delay in returning processes and his absence
from duty is made fraudulently and is a forged document within the meaning of
s. 464 (w).

Where a Postmaster and a Treasurer of a Post Office were convicted under
this section and Ss. 409, 465, and 471 for criminal breach of trust of Rs. 10 and altera-
tion of certain books and papers in connection therewith, the Calcutta High Court
acquitted the accused of the offence under this section but affirmed the conviction
of the Postmaster under s. 409 holding that the intent to commit fraud had not been
established but it was found that the real purpose was not to defraud but to remove
the evidence of crime for which no charge had been framed against the accused (x).

Of Trade and Property* Marks -

The Madras High Court has held in a case: “Ordinarily the infringement
of a trade-mark is rather a civil than a criminal wrong, but as civil proceedings may
require much time and expenditure to bring them to a conclusion, the Legislature
in its anxiety to protect traders, has allowed a resort to the criminal Courts to pro-
vide a speedy remedy in cases where the aggrieved party is diligent and does not by
his conduct show that the case is not one of urgency. If therefore the person
aggrieved fails to resort to the criminal Court within a year of the offence coming
to his knowledge, the law assumes that the case is not one of urgency, and it leaves
him to his civil remedy by an action for injunction " (y). Aggrieved party has a
remedy both in civil and criminal Courts — (I) he can institute criminal proceedings
under the Indian Penal Code or (2) he can bring an action for an injunction and
damages. In view of particular circumstances of a particular case criminal Court
may stay its hand and direct the complainant to establish his right in the civil
Court (z).

The Indian Merchandise Marks Act (Act IV of 1889), repealed in part and
amended by Act IX of 1891 and Act XVI of 1904 by s. 3 amended Ss. 478, 479, 480,
481, 482, 483, 484, 485, 486, 487, 488, and 489 of the Penal Code which were
inserted by virtue of that Act which again had been drawn from the English
Merchandise Marks Act, 1887 (50 and 51 Viet., c. 28). For the Indian Merchandise
Marks Act see Appendix x.

Now 4 trade-mark * has been defined in s. 478, and the ‘ property-mark * in
the next section. S. 480 describes using a false trade-mark, whereas s. 481 defines
• using a false property-mark * and s. 482 provides punishment for using a false
trade-mark or property-mark.

(u) Rashbehayy Das, (1908) 35 C. 450 f following Lalitmohan Sarkar , (1894) 22
C. 313 In re Annasami Ayyangar, (1901) 1 Weir 554.

(w) Kamachinatha Pillai, (1918) 42 M. 559, following Kotamrazu Venkarayudu ,
1905) 28 m. 90 (F. B.) ; Sabapatht , (1888) 11 M. 411 and Rashbehari Das t (1908)
35 C. 450 and dissenting from Jiwanand, (1882) 5 A. 221 and Gtvdharilal , (1886) 8

A ^ W Jyotish Chandra Maker ji, (1909) 36 C. 955 where the cases of Lalit Mohan
Sarkar (1894) 22 C. 313 and Rashbehari Das , (1908) 35 C. 450 were distinguished.

(v) Ruppel v. Ponnusam Tewan , (1899) 22 M. 488 (490).

(i) Banarasi Das , (1927) 9 C. 491 : A. I, R. (1928) Lah. 180.

950

THE INDIAN PENAL CODE f CHAP. XVIII

478. A mark used for denoting that goods are the manufacture
de mark. or merchandise of a particular person is called

a trade mark,

and for the purposes of this Code the expression “ trade
mark ” includes any trade mark which is registered in the register
of trade marks kept under the Patents, Designs and Trade Marks
Act, 1883, and any trade mark which, either with or without
registration, is protected by law in any British possession or
Foreign State to which the provisions of the one hundred and
third section of the Patents, Designs and Trade Marks Act, 1883,
are, under Order in Council for the time being applicable.

This section defines * trade-mark ’ and includes any trade-mark which is re-
gistered in the register of trade-marks kept under the Patents, Designs and Trade
Marks Act, 1883 (50 and 51 Viet., c. 28, s. 3) which runs as follows : —

S. 3. " ‘Trade-mark' means a trade-mark registered ?n the register of trade-
marks kept under the Patents, Designs and Trade-Marks Act, 1883 (46 and 47 Viet,
c. 67) and includes any trade-mark which, either with or without registration
is protected by law in any British possession or Foreign State to which the Pro-
visions of the Patents, Designs and Trade Marks Act, 1883 (50 and 51 Viet. c. 28)
are under Order in Council, s. 103 for the time being applicable.”

Trade-mark : — “ The mark whether it is a letter, or a name, sign, seal or any
arbitrary mark, if it is used to shew that the thing on which it is placed is the work
of a particular person or was made at a particular place, &c., is a ‘ trade-mark/ The
mark or name which an artist, sculptor, or engraver may use to denote that a picture,
statue, or engraving is the work of his hands may perhaps be within these words" fa).

In a civil suit in the original side of the High Court of Calcutta, where
plaintiff company who took an assignment from a tobacco merchant of all that the
trade-mark, name and label known as the Sri-Durga trade-mark and label used upon
packets of cigarettes sold and known as Sri-Durga cigarettes, claimed damages and
prayed for an injunction restraining the fc defendants from committing acts of
infringement, the Calcutta High Court dismissed the suit and Jenkins, C, J., held :
44 In India there is no system of registration nor is there any provision for a
statutory title to a trade-mark, so that the rights of the parties must be determined
in accordance with the principles of the English Common Law.

44 Now a trade-mark is a mode of warranting the origin of goods to which it is
attached, or their trade-association, and it is of the essence of a trade-mark that its
representation should be true" (b). Lord Cranworth observes: 44 The right
to a trade-mark is a right closely resembling though riot exactly the same as
* copyright/ word 4 property 4 when used with respect to an author s right to
the production of his brain, is used in a sense very different from what is meant by
it when applied to a house or a watch " (c). Lord Kingsdown in the same case

(a) Morgan and Macpherson, Penal Code, p. 423.

(b) The British American Tobacco Co. v. Mahboob Buhsh , (1910) 15 C. W. N.
280 (289), following Leather Cloth Company Ltd. 4 y. The American Leather Cloth
Company Ltd ., (1865) 11 H. L. C. 523 : 35 L. J. Ch. 53 (61) ; Edward v. Dennis (1885)
30 Ch. D. 454 (479) j Hall v. Barrows , (1863) 4 D, K. and S. 160 j Singer Manufacturing
Co. v. Wilson, (1855) L. R. 2 Ch. D. 454; Singer Manufacturing Co. v. Loog , (1882)
L. R. 8 A. C. 16 (33) : 52 L. J. Ch. 481.

(c) Leather Cloth Company v. American Leather « Cloth Co. (1865) 11 H, L. C.

52 3 (533). * •

SEC. 478 ] OF TRADE AND PROPERTY-MARKS 661

observed: “The fundamental rule is that one man has no right to put off his
goods for sale as the goods of a rival trader " (d).

The right of exclusive user of a name or a number as a trade-mark is not an
absolute and unqualified right which would entitle the owner to prevent another
person from using it under all circumstances. It is only when the use of that name
or number deceives or is reasonably likely to deceive the public that it can be inter-
fered with or prevented (c).

Where the trade-mark said to be counterfeited was that of F. C. Calvert & Co.,
manufacturers of Carbolic Tooth Powder, the Calcutta High Court held that the
expression * trade-mark * as defined in s. 478 must not be confined to the trade-
mark of the complainants registered in England but must include the whole design
on the top of the box and the black label pasted round the side, and further held that
the imitation was most marked and complete, and as the accused failed to bring
themselves within the exceptions in s. 486, they were guilty (f).

“ The principle on which relief is given in these cases is that one man ^cannot
offer his goods for sale represent them to be the manufacture of a rival trader (g).

Where the petitioners were aware of the alleged infringement so long ago as
1893 and there was nothing before the Court to hold that they believed that the
manufacture was discontinued and was lately revived, the Madras High Court held
that the prosecution having been started in 1898 was time-barred under s. 15 of the
Indian Merchandise Marks Act (h).

Mellis, L. J., said : “ The Court of equity having taken that step, trade-marks
began to be considered as property and no doubt there is in a certain sense a property
in the trade-mark and equally in a trade-name, because a trade-name may be used,
and is very commonly used, as a trade-mark properly so-called, that is a trade-mark
upon the goods themselves “ (i).

The applicant's chance of success must largely depend upon whether other
traders are likely in the ordinary course of their business and without any improper
motive to desire to use the same mark or some other mark nearly resembling it
upon or in connection with their own goods (j). The burden of proving that
a proposed trade-mark is not likely to deceive lies upon the applicant (k).

Where the complainants were selectors who imported hand-made sugar to
C, used a distinctive mark on the bags* denoting that the sugar contained in bags so
marked had been selected and imported by them, and their customers accepted the
mark as a guarantee that the sugar was hand-made, the Allahabad High Court held
that the mark so used was a trade-mark as defined in this section (1).

For the purposes of the Penal Code it is not essential that an imitation should
be exact in order to be 4 counterfeit * (m).

(d) Ibid , p. 538, following Lord Langal’s observations in Perry v. Tmefitt, (1842)
6 Beav. 66.

(e) Barlow v. Gdvindram, (1877) 24 C. 364 (Civil case decided by a single Judge
on the original side).

(f) Niltnony Nag v. Durga Pada, (1915) 19 C. W. N. 257 : 16 Cr. L. J. 719 : 30
I. C. 1007 (popularly known as Calvert Tooth Powder infringement case).

(g) Per Lord Cranworth, in Seixo v. Provezende , (1865) L. R. 1 Ch. App. 192
(195).

(h) Ruppel v. Ponnusami Tevan, (1899) 22 M. 488.

(i) Singer. Manufacturing* Co. v. Wilson, (1858) L. R. 2 Ch. D. 454.

(j) George Banhant <5* Co. v. F. Reddaway Co. (1927) A. C. 406, following D .
Cross , (1913) A. C. 624.

(k) McDowell v. Standard Oil Co., (1927) A. C. 632, following Eno v. Donn t
(1890) 15 A. C. 252.

(l) LatiL (1916) 39 A. "123 : 14 A. L. J. 1080 : 17 Cr. L. J. 535 : 36 I. C, 583.

(m*) Lokumal , (1914) 8 S. L*. R. 199 : l m 6 Cr. L. J. 230 : 27 I. C. 902.

952 THE INDIAN PENAL CODE [ CHAP. XVIII

Where a design or pattern covers the whole body ot goods and is pert and parcel
of the goods themselves, it falls within the definition of * design * given in s. 215
of the Indian Patents and Designs Act II of 1911, and cannot be treated as * trade-
mark ’ as defined in this section (n).

Where the general get-up of the labels of tins of two manufacturers was almost
identical, the Bombay High Court held that the accused was guilty of an offence
under s/486 and further held that false trade-mark and counterfeit trade-mark were
the same thing (o).

Lord Westbury says: “The property in the trade-mark consists in the
exclusive right to the use of that mark as applied to a certain manufacture “ (p).

Unless it is proved that the mark in question is the trade-mark alleged to have
been counterfeited, the conviction under Ss. 485 and 486 cannot stand, and it was
further held that a mark to be a trade-mark must be a mark used for denoting that
the goods are the manufacture or the merchandise of a particular person (q).

Where the petitioner was charged under s. 485 on the allegation that he had
been selling umbrellas as ‘Butto Kristo Pal Umbrellas,' and a wooden block was also
found and the petitioner was convicted under Ss. 482, 485, and 486, the Calcutta
High Court held that a trade-mark must be some visible concrete device or design
affixed to goods to indicate that they are the manufacture of the person on whose
property the trade-mark is and as there was no proved ‘ trade-mark ' of the com-
plainant for infringing which the petitioner could be convicted, set aside the
conviction and sentence (r).

The ground on which the Court protects trade-marks is, that it will not permit
a party to sell his own goods as the goods of another ; a party will not, therelore, be
allowed to use names, marks, letters or other indicae , by which he may pass off his
own goods to purchasers as the manufacture of another person (s).

Where the plaintiff had for some years made belting and sold it as 1 Camel Hair
Belting/ a name which had come to mean in the trade the plaintiff’s belting and
nothing else, the defendant began to sell belting made ot the yarn of camel's hair
and stamped it, ‘ Camel Hair Belting', so as to be likely to mislead purchasers into
the belief that it was the plaintiff's belting, endeavouring thus to pass off his goods
as the plaintiff’s, Lord Halsbury, L. C., held : “ For myself I believe the principle
of law may be very plainty stated, and that is„that nobody has any right to represent
his goods as the goods of somebody else ” and the Court granted an injunction (t),

Merchandise : — No definition is given of the word ‘merchandise ’ and it is
often used as the synonym of ‘goods,* ‘wares' and ‘commodities’. The word
‘ merchandise * in Ss. 478 and 480 implies goods not only offered for sale, but also
selected and so to say, guaranteed by the proprietor ot the trade-mark, and a selector-
importer who affixes his name or other trade-marks to goods is a person ‘ whose
merchandise they are ’ within the meaning of s. 480 (u).

(n) Narumal Khemchand v. The Bombay Company , Ltd., 8 S. L. R. 39: 15
Or. L. J. 670 : 26 I. C. 998.

(o) Ganpat Sitaram Muhdum , (1914) 16 Bom. L. R. 78.

(p) Hall v. Barrows, (1863> 33 L. J. Ch. 204 : 4 D. J. and S. 150.

(q) Anoohool Chunder Nundy, (1900) 27 C. 776. 4 C. W. N. 423.

(r) Anath Nath Bey, (1912) 40 C. 281. 17 C. W. N. 227. 14 Cr. L. J. 68 : 18
I. C. 404.

(s) Perry v. Truefitt , (1842) 6 Beav. 66. r

(t) Reddaway v. Benitham, (1802) Q. B. 639 (643), affirmed in Reddaway v.
Bentham, (1896) A. C. 199 ; Birmingham Vinegar v. Powell , (1897) A. C. 710 ; Parsons
v. Gillespie, (1898) A. C. 239 ; and explained in The Cellular Clothing Co. v. Max ton ,
(1899) A. C. 326 (335, 336).

(u) Dunbar v. The Holland Bombay Trading Co., *(1918) 12 S. L. R. 129: 20

Cr. L. J. 277: 60 I. C. 165. .

OF TRADE AND PROPERTY-MARKS

953

SEC. 478 ]

A manufacturer, who has produced an ariticle of merchandise, e.g. t a new
pattern of cloth, and applied to it a particular fancy name, and sold it with a particular
mark under which name and mark it has obtained currency in the market, acquires
an exclusive right to the use of such name and mark and is entitled to restrain all
other persons from using such name and mark to denote articles similar in kind and
appearance, although he may have no exclusive right of manufacturing the article (v).

Mode of determining trade-mark s— ' The proper mode of determining
questions as to the similarity of trade-marks is to compare them as actually used,
e.g. 9 impressed on metal goods (w).

But where a charge under s. 482 is made, fraudulent intent is essential and the
prosecution must prove it.

Lord Chelmsford observed : “ For the purpose of establishing a case of in-
fringement it is not necessary to shew that there has been the use of a mark in all
respects corresponding with that which another person has acquired an exclusive
right to use, if the resemblance is such as, not only to shew an intention to deceive,
but also such as to be likely to make unwary purchasers suppose that they are pur-
chasing the article sold by the party to whom the right to use the trade-mark
belongs " (x).

In a case where the defendants’ goods on the face of them and having regard
to the surrounding circumstances, are calculated to deceive, it was held that no
evidence was required to prove the intention to deceive. “ The sound rule is that
a man must be taken to have intended the reasonable and natural consequences of
his acts, and no more is wanted. If, on the other hand, a mere comparison of the
goods, having regard to surrounding circumstances, is not sufficient, then it is allow-
able to prove from other sources that what is or may be apparent innocence was
really intended to deceive ” (y).

It is not necessary to prove ' fraud \

Fraud is not necessary to be averred or proved in order to obtain protection for
a trade-mark (z). The complainant has got to prove that the goods which are the
subject of the mark are manufactured and sold by himself and that such goods are
known in the market as being ot his manufacture alone (a).

Test of infringement of tracle-mark The test of the infringement of a
‘ trade-name or a trade-mark * is whether the acts alleged as an infringement
are likely to mislead the public into dealing with the alleged infringer under the
belief that they are dealing with the person who first used the name or mark (b).

Bona fide disputes: — Complainant should be referred to civil Court if
the Magistrate is of opinion that there is a bona fide dispute as to whether the
complainant has any trade-mark at all or whether the accused is or is not entitled
to use the mark he is using. The Magistrate should not deal with the matter as a
criminal matter, but leave it to the complainant to maintain if he can, in a civil

(v) Hirst v. Denham , 41 L. J. Ch. 752.

(w) In re. Jelly Son v. Jone’ Application, 51 L. J. Ch. 639; In re Rosing' &
Application, 54 L. J. Ch. 975n ; In re Lyndon's Trade-mark, 55 L. J. Ch. 456 : 32
Ch. D. 109.

(x) Wotherspoon v. Currie, (1872) L. R. 5 H. L. 508 (519) ; Singer Manufacturing
Co. v. Loog, (1882) 8 App. C„ 15 (18).

(y) Soslehuer v. Appollineris Co., (1897) 1 Ch. 893 (900).

(*) Singer Manufacturing Co. v. Wilson, (1877) 3 A. C. 376 (391) ; Summer -
villa v. Schembri, (1887) 12 A C. 453.

(a) Gobind Chandra Roy v. Abdul Rashid, A. I. R. (1928) Cal. 235.

(b) Lee v. Haley, 39 X. J . Ch. 284 ; Reddaway v. Bentham Hemp. Spinning Co.,
(1892) 2 Q. B. 639.

954

THE INDIAN PENAL CODE [CHAP. XVIII

court the right he claims (c). This case was followed in another case where it
was held that in cases of bona fide dispute the complainant should be referred to a
civil Court fd).

Trade-name : — There is a distinction between * trade-names * and * trade-
marks \ the latter being always assumed invented by a trader for the purpose of
his goods and there is no necessity for him to adopt a trade-mark like that of another
trader, except for the purpose of passing off his goods as those of that trader (e).

Books are the subject of trade and are covered by the definition of 4 goods *
in s. 2, cl. (4) of the Indian Merchandise Marks Act (IV of 1889) ; therefore when
a person sells books with a counterfeit property-mark, he commits an offence
under s. 486.

The word 4 trade-mark * is the designation of marks or symbols applied to a
vendible commodity (g).

Copyright is not the same as trade-mark : — “ The question in every
such case must be, whether the purchaser in continuing the use of the original
trade-mark would, according to the ordinary usages of trade, be understood as
saying more than that he was carrying on the same business as had been formerly
carried on by the person whose name constituted the trade-mark ” (h).

Fulton, J., held : “ We must construe s. 478 in its ordinary grammatical
sense and if this test be applied, it will I think be found that the definition of trade-
mark is not sufficiently elastic to protect the rights of authors ” (i).

479 .

Property mark.

A mark used for denoting that moveable property
belongs to a particular person is called a
property mark.

This section defines ‘property mark* and s. 481 describes ‘using a^ false
property mark.’ The English law does not draw any distinction between ‘ trade
mark ’ and 4 property-mark.’

Scope : — “ A property-mark is intended to denote ownership over all moveable
property belonging to him, whether it is all or one kind of different kinds. So
long as the person owns moveable properties, his property-mark which has been
or may be impressed upon them remains his, though any particular article out
of it may after such impression pass out of his hands and cease to be his. I think
that the term 4 moveable property ’ in s. 479 was intended by the Legislature to
include a class or category of properties falling under one ownership, not merely
the parts of it which may pass from the hands of the owner into other hands. The
class is stable, though the units are ambulatory.

44 The term 4 moveable property ’ as used in s. 479 was intended to include
collective class nourts, i.e., nouns that express a number of the objects of the same
class collected together” (j).

(c) Dowlat Ram t (1905) 82 C. 431. following Bokaullah Mallik, (1904) 31 C. 411.

(d) Surja Prasad v. Mahabir , (1907) 11 C. W. N. 887.

(e) Turton v. Turlon, 58 L. J. Ch. 077 : 42 Cb. D. 128.

(f) Kanai Das Bairagi v. Radha Shyam Bysack, (4898) 26 C. 232, followed in
Raghavelu Naidu v. Sundramurthi Mudali, (1907) 31 M. 512.

(g) Singer Manujacturing Co. v. Loog, (1882) 8 A. C. 15.

(h) Per Lord Cran worth, in Leather Cloth v. American Leather Cloth Co., (1865)
11 H. L. C. 523 (534, 635).

(i) Radha Krishna v. Kissonlai, (1888) 3 Bom. L. t R. 883.

(j) Per Cbandravarkar, J., in Dayabhfy Chahasha , (1904) 6 Bom. L. R. 513 1515).

OF TRADE AND PROPERTY-MARKS

955

SEC. 480 ]

Using a false trade
mark.

480 . Whoever marks any goods or any case, package or
other receptacle containing goods, 7 or uses
any case, package or other receptacle with
any mark thereon, in a manner reasonably
calculated to cause it to be believed that the goods so marked,
or any goods contained in any such receptacle so marked, are
the manufacture or merchandise of a person whose manu-
facture or merchandise they are not, is said to use a false trade
mark.

“ The mark may be one which is put on the article itself (e.g. t stamped on the
v cloth itself) or is put on the packing in which the cloth is packed, or it may be in
the shape of a printed wrapper in which the goods are folded. If it is intended
to deceive persons into a belief that the goods were made by a person by whom
they were not made, etc., to put such a mark on goods is to use a false trade-
mark" (k).

Analogous law : — The corresponding provision in the English statute,
Merchandise Marks Act, (50 and 51 Viet. c. 28) s. 5. of which runs as follows : —

S. 5. (1). “A person shall be deemed to apply a trade mark or mark or trade -
description to goods who (a) applies it to the goods themselves ; or (b) applies it to
any covering, label, reel, or other thing in or with which the goods are sold or exposed
or had in possession for any purpose of sale, trade, or manufacture, or (t) places,
enclosures, or annexes any goods which are sold or exposed or had in possession for any
purpose to which a trade-mark or trade-description has been applied, or (d) uses a
trade-mark or mark of trade-description in any manner calculated to lead, to the
belief that the goods in connection with which it is used are designated or described
by that trade-mark or mark or trade -description. ”

1 Whoever marks any goods or any case, package or other receptacle
containing goods or other receptacle containing goods or uses , 9 etc. : —

Chitty, J., observed : “ Now it was said that user is the life of a trade-mark, and

non-user the death of it.., A man who

has a trade-mark may properly have regard to the state of the market and the
demend for the goods ; it would-be absurd to suppose he lost his trade-mark by
not putting more goods on the market when it was glutted” (1).

Cotton, L. J., held : ” In my opinion it is not the intention of the Act (Trade
Marks Registration Act, 1875) that a man registering a trade-mark for the entire
class and yet only using it for one article in that class, can claim for himself the
exclusive right to use it for every article in the class” (m).

Goods : — Books are the subject of trade within the meaning of s. 2, clause
(4) of the Indian Merchandise Act (IV of 1889) and therefore when a person sells
books with a counterfeit property mark, he commits an offence under s. 486 (n).

'in a manner reasonably calculated to cause it to be believed that
the goods so marked or any goods contained in such receptacle so marked*
are the manufacture of a person whose manufacture or merchandise
they are not\— Giffard, L. J., held : M There can be no property in the name ;

(k) Morgan and Macbherson, * Penal Code, ’ p. 423.

(l) Per Chitty, J., in Monson <Sn Co. v. Boehm, (1884) 26 Ch. D. 398 (406).

(m) In re Edward's Trade-Mark , (1886) 30 Ch. D. 464 (474), iollowed in Hart
V. Colley , (1896) 44 Ch. D. 193 (199).

(n) Kanai Das Baimagi v. Radhasyaw Basack, (1898) 26 C. 232 : 3 C. W. N. 97,
followed in Raghavalu Naidy v. Sundarmurti Mudalli, (1907) 31 M. 612 : 17 M. L. J.
490 (492), see Radhakrishna Joshi, (1901) 26 B. 289 (292) : 3 Bom. L. R. 883.

956

THE INDIAN PENAL CODE [ CHAP. XVIII

that even in a trade-mark there is no property so to speak, but the principle upon
which the Court interferes is, that it is a fraud on a person who has established a
trade, and carries it on under a given name, that some other person should assume
the same name, or the same name with a slight alteration, in such a way as to
induce his customers to deal with him under the supposition and in the belief
that they are dealing with the others” (o). Fry, J., in Ore Erring & Co , v. Johnson (p)
cited with approval the judgment of Lord O’Hagan in Singer Machine Manu-
facturers v. Wilson (q) and went on to say: “ It appears to me, therefore, that I
ought to hold that if one man will appreciate to himself a natural and substantial
part of the ticket which another man has used for the purpose of indicating his
goods, he ought so to appropriate it, and with such precautions as that the reason-
able probability of error should be avoided.”

The proper mode of determining questions as to the similarity of trade-marks'
is to compare them as actually used (r).

Lord Herschell observed : “The eye must be the judge in such a case like
this, and the question must be determined by placing the designs side by side,
and asking whether they are the same, or whether the one is an obvious imitation
of the other ” (s).

Where the trade-mark used by the accused is a crescent encircling a crown
over the letter A. M. R. and the one used by the complainant is a crescent encircling
a star over the letters A. G. M., the Madras High Court held that the dispute was
one which might be fitly decided in a civil Court and that the accused was not
guilty of using a false trade-mark or selling goods under a counterfeit trade-mark (t).

Where the complainants used for years past to import from Holland white
shirtings bearing the mark “ H. B. T. C. 40000 “ a label with the design of one
lion and a snake and an oval stamp containing a writing on it the words 4 Sole im-
porters Holland Bombay Trading Company, Limited”, and a buff heading, and the
accused had in their possession for purposes of sale some packages of white shirtings
bearing the mark 44 H. P. I. C. 4000,” a label with two hons and two snakes and an
oval stamp containing written in it “sole importers, Holland Export Company” and
a buff heading ; it was found that the letters H. B. I. C. in the complainant’s and

H. B. I. C. in the accused’s marks were printed in similar types and were similar in

size and colour, the Calcutta High Court held that the accused had used a false
trade-mark (u). •

Where the general get-up of the labels of tooth-powder tins of two different
manufacturers was almost identical, the Bombay High Court held that an offence
under s. 486 was committed and further held that for the purposes of that case
false trade-mark and counterfeit trade-mark were the same thing (v).

The affixing of a name to goods can be a valid trade-mark and it is not neces-
sary for a mark on goods to be a trade-mark that the goods should be in the market
with the mark affixed for any definite or any considerable time (w).

(o) lee v. Hailey, (I860) 39 L. J. Ch. (N. S.l 284 (286).

(p) (1879) 13 Ch. D. 434, on appeal (1801) 7 A. C. 219.

(q) (1878) 3 A. C. 370.

(r) In re Jelly , Son & Jane's Application , 51 L. J. Ch. 639 n.

(s) Hecla Foundry Co . v. Walker Hunter and Co., (1889) 14 A. C. 550,
(555), followed in John Harper and Qo. v. Wright and Butler Co., (1896) 1 Ch. 142
(146).

(t) Rasool Khan, (1912) M. W. N. 85: 13 Cr. L. J. Ii5 : 13 I. C. 927, following
Surja Prasad v. Mahabir, (1907) 11 ,C. W. N. 88L Dowlat Ram, (1905) 32 C. 431.

(u) Holland Bombay Trading Co. v. Buktear Mull, (1903) 8 C. W. N. 421.

(v) Ganpat Sitaram Mukadam, (1914) 16 Bom. L. R. 78 : 15 Cr. L. J. 522 : 24

I. C. 834.

(w) Dunbar v. Holland Bombay Trading, Co., (191 7) 12 S. L. R. 120 : 20 Cr. L. J.

277 : 50 I. C. 165. •

SEC. 481 ]

OF TRADE AND PROPERTY-MARKS

957

The test which the Magistrate should bear in mind is the general effect of the
trade-mark adopted by the accused and how that would be likely to strike the
incautious or unwary purchasers (x).

The question is not whether a purchaser would be deceived if he had the
two articles side by side but the matter must be considered from the point of
view of the universe particular (y).

Where the accused, an agent of the Burma Oil Company was said to have used
the trade-mark of the Standard Oil Company and according to an agreement be-
tween different oil companies tins belonging to one company could be used by the
other provided that the other company put upon the cap of thetin a distinctive mark
indicating that it was the oil of the company which was using the tin and it was
proved that accused sold 6 tins with plain caps, the Allahabad High Court held that
Although the accused was guilty of using a false trade-mark he could not be con-
victed under 8. 482 as he had acted without intent to defraud (z).

In order to constitute the offence of applying a false trade description to goods
with intent to defraud within the meaning of the Merchandise Marks Act, 1887
(50 and 51 Viet., c. 25) s. 2, sub-sec. 1 , it is not necessary that there should be any
fraud in the sense of an intent to supply a worthless or an inferior article, but it is
sufficient that an article is intended to be supplied of a different description for that
which the customer intends to purchase and believes he is purchasing (a).

Importer using a distinctive mark : — A distinctive mark may be adopted
by a person who is not the manufacturer but the importer of goods, and he will
acquire the property in that mark as indicating that all goods which bear it have
been imported by him (b).

Manufacturer’s mistake : — Where the accused was in possession of certain
goods which bore the complainant’s trade-mark and it was found that the manufac-
turer of the goods in Japan had by mistake either put the complainant’s trade-mark
on the goods or had forwarded the goods to a wrong party from whom the accused
had purchased them in good faith, held that the accused committed no offence under
s. 486 nor any offence under Ss. 480 and 482 because there was no intention to
defraud on the part of the accused (c).

481 . Whoever marks any moveable property or goods or
any case, package or other receptacle con-
^ung a false property taining moveable property or goods, or uses
any case, package or other receptacle having
any mark thereon, in a manner reasonably calculated to cause
it to be believed that the property or goods so marked, or any
property or goods contained in any such receptacle so marked,
Delong to a person to whom they do not belong, is said to use a
false property mark.

Property-mark — s. 479. „

See commentary under the preceding section.

(x) Nailya Pillai v. Rangaswawi Pillai, (1895) 1 Weir 556 (557) ; Badische
Aniline V. Manekji Shapurji, (1893) 17 B. 584, approved in Nenti Chand v. C. W.
Wallace, (1907) 34 C. 495 : 11 C. W. N. 537 ; Spinning , Weaving and Manujaduring
Co. Ltd., (1917) 41 B. 49 : 18 Bom. L. R. 206 referred to in P. A. Pakir Mahomed,
A. I. R. (1929) Rang. 322.

(y) A swim Kumar Pal, (1930) 34 C. W. N. 524.

(«) Abdul Rashid, (1918) 16 A. L. J. 476 : 19 Cr. L. J. 722 : 46 I. C. 402.

(a) Starey v. Chilworth Gunpowder Co., (1889) 24 Q. B. D. 90,

(b) Latif, (1926) 3d A. 123 : 14 A. L. J 1080 : 7 Cr. L. J. 535.

* (c) Syon Skeeman 6* Co, v. Solomof, 4 R. 16 ; A. 1. R. (1926) Rang. 134,

958

THE INDIAN PENAL CODE

[ CHAP. XVIII

482. Whoever uses any false trade mark or any false pro-
Punishment for using perty mark shall, unless he proves that
a false trade mark or he acted without intent to defraud, be
property mark. punished with imprisonment of either

description for a term which may extend to one year, , or with
fine, or with both.

Trade-mark — s. 478. Property-mark— s. 479.

Using false trede-mark — s. 480. Using false property-mark — s. 481.

This section provides punishment for using a false trade-mark or false property-
mark. The peculiarity of this section lies in this that it says ‘ unless he proves
that he acted without intent to defraud * he shall be punished etc.

Morgan and Macpherson observe : “ It is the use of the false mark ‘ with intent
to deceive * that constitutes the offence which is here punished. It the maker of an
article puts on it the trade-mark of another maker, and he does this with the inten-
tion that purchasers may be induced to believe that the article was made by such
other maker, he has committed the offence. It will be no defence to shew, that the
article is in every respect equal or even superior to similar articles made by the
other maker, if the offender intended to practise deception and used the marie for
this purpose.

" A person who uses a false property-mark is also punishable — as if he puts
the name of a particular person, or of a corporation, or company, on his property in
order that it may benefit by some privilege or exemption to which it is not
really entitled.

“ But an intention to deceive or injure is essential. A person who marks his
own goods or property with the initial letters of his name or with any arbitrary
sign having no purpose of deceiving others, but merely with a view to identify what
belongs to him, commits no offence, notwithstanding that the letters or marks which
he uses, are also used by other persons and may therefore occasion strangers to
believe that the goods, or horses, cattle, etc., so marked belong to some person
other than their real owner*' (d).

Analogous law : — False trade-description , ; s punishable under the provisions
of the Merchandise Marks Act IV of 1889, Ss. 6 and 7, and not under this section,
s. 8 deals with unintentional contravention of the law relating to marks and de-
scription and s. 9 deals with forfeiture of goods and act this section, Ss. 486, 487
and 488 of the Penal Code and have been quoted in Appendix.

Scope : — To constitute an offence under this section, it must be shown that
the goods were marked in a manner, reasonably calculated to cause it to be believed
that they were the manufacture or merchandise of or that they belonged to a
person whose manufacture or merchanside they were not or to whom they did not
belong. If this is shown it will be on the accused to show that it was done without
intent to defraud the complainant or any one else (e).

Procedure : — Non-cognizable — Warrant — Bailable — Compoundable when per-
mission is given by the Court before which the prosecution is pending (e 1 ) — Triable
by Presidency Magistrate or Magistrate of the first or second class .

(d) Morgan and Macpherson, * Penal Code 1 p. 424.

(e) Raghavalu Naidu v. Sundratnarthi Mudali, (1907) 31 M. 512: 17 M. L. J.

490.

(el) These words were substituted for " Not compoundable " by Act XVIII of
1 923.

SEC. 482 ] OF TRADE AND PROPERTY -MARKS

959

Onus Ordinarily in every ease the prosecution has to prove the offence but
the language of this section requires the accused to prove that ‘ he acted without
intent to defraud* *

The prosecution must prove —

(1) that the trade-mark or property-mark is in fact false;

(2) that the accused marked the goods in question or some case, package,
receptacle, etc. (s. 480) or moveable property, etc. (s. 481) in a manner reasonably
calculated to cause it to be believed that the goods, etc., so marked (s. 480) or
moveable property, etc., so marked (s. 481) are the merchandise of a person whose
manufacture they are not (s. 480), (or belong to a person to whom they do not
belong) (s. 481).

See also .P A . Phakir Mohammed's case (f).

•' So practically the prosecution must make out a prima facie case of fraud.

14 The first thing to be observed in cases of this description is, that it would not
be safe for any plaintiff to come into Court until he could prove instances of persons
having been actually deceived, for the Court would have to try a hypothetical case
and a nuipber of people would be brought forward by the defendant to say, and
probably thily, that the thing done would never have deceived them, and in their
opinion was not calculated to deceive ** (g).

Lord Herschell said : “ The eye must be the judge in such a case as this, and
the question must be determined by placing the designs side by side, and asking
^whether they are the same, or whether the one is an obvious imitation of the
other’* (h).

The proper test is whether the 4 get-up ’ of the accused’s goods is likely to
deceive a purchaser who is acquainted with the complainant’s get-up. An intent
to defraud is an ingredient of the offence of using a false trade-mark. (i).

The accused must then show that he acted without intent to defraud or in other
words he acted innocently and that he had no reason to believe that a fraud would
be committed.

Now s. 8 of the Merchandise Marks Act IV of 1889 applies to a prosecution
under this section and s. 485, and if the defence can prove clauses (a), (4), (c) and (d)
of that section, the accused is entitled to an acquittal.

For s. 8 of the Merchandise Marks Act.

Who may prosecute : — A person not necessarily a manufacturer, who uses
mark for the purpose of his trade, may acquire rights to and in respect of that trade-
mark. A prosecution would therefore lie as his instance (j).

Firm if may be prosecuted : — A body corporate, such as a firm, may be
prosecuted for an offence under Ss. 480 and 482 (k).

Forfeiture of goods : — S. 9 of the Merchandise Marks Act applies to a
conviction under this section or under Ss. 486, 487, 488, infra 4 see Appendix.

Bona fide dispute— Complainant should be referred to civil Court

See commentary on s. 478 under that heading.

~ (f) A. I. R. (1929) Rang. 322.

(g) Lee v. Haley , (1809) L. R. 5 Ch. 155 (100) : 39 L. J. (N. S.) Ch. 284.

(h) Hecla Foundry C<?.*v. Walker Hunter & Co (1889) 14 App. Ca. 550 (555).

(i) A. M. Malumir Company v. Finlay Fleming 6* Co. t (1929) 7 R. 109.

(j) Jwata Prosad , (1910) 37 C. 204, followed in P. A. Pakir Mahomed , A. I. R.
(1929) Rang. 322.

(k) Seena M . Haniffr Co . v. Uptons Ltd., (1914) 7 L. B. R. 306 ; 23 I. C. 680
followed in P. A. Pakir Magomed, A. I. R. (1929) Rang. 322,

960 THE INDIAN PENAL CODE [ CHAP. XVIII

Ss. 14 and 15 of the Merchandise Marks Act apply to prosecutions under
Ss. 478 and 487.

For s. 14 of the Merchandise Marks Act (IV of 1889) see Appendix.

Limitation S. 15 of the Merchandise Marks Act says : “No such prose-
cution as mentioned in the last foregoing section shall be commenced after the
expiration of three years next after the commission of the offence or one year after
the first discovery thereof by the prosecution, whichever expiration first happens."

The Madras High Court in a case, where the complainant discovered that
goods were sold with a counterfeit trade-mark but commenced that the prosecution
5 years after his first discovery, held that the prosecution was time-barred under
s. 15 of Act IV of 1889 and that the complainant must seek his civil remedy by an
action for injunction (1).

RuppaU’s case (1) was considered in Akhoy Kumar Dey’s case. S. K. Ghosh,
J., sitting singly followed Akshoys case (m) in Nagendra Nath Saha's case (n) and
held that the word (l) * * 4 offence ’ under s. 15 of the Merchandise Marks Act means the
offence charged.

Appellate fcourt may award cost : — The Bombay High Court in deciding
an appeal against the conviction under s. 486 awarded Rs. 50 as costs to the com-
plainant (o).

Issue of search warrant To issue a search warrant for the search of a
man's house and for the production of all papers and books in it for the purpose of,
an inquiry as to whether he had used or sold articles with a counterfeit trade-mark,
is a gross perversion of law (p).

Charge : — I (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of — , at ,

used a certain trade-mark (or property mark), to wit , to denote that

certain goods were the manufacture of XY whose manufacture they were not
(or were the moveable property of XY whose property they were not) in a manner
reasonably calculated to cause it to be believed that such goods were the manufacture
(or property of XY) and that you thereby committed an offence punishable under
s. 482 of the Indian Penal Code, and within my cognizance.

Using false trade-mark or property-mark !— See commmentary on
Ss. 478 and 480, supra.

Where the trade-marks are so different that no one would be misled, the
Madras High Court held that a conviction under Ss. 482 and 486 is bad (q).

Under Ss. 482 and 486 the prosecution has got to prove the mensrea ; and
as the burden of proving innocence is thrown on the accused under these sections,

(l) Rupp all v. Ponnusami Tevan, (IP 99) 22 M. 488; Muhammad Jewa v, Wilson,
4 Bur. L. T. 83 : 12 Cr. L. J. 246 : 10 I. C. 787 ; Jagannath, (1916) 10 S. L. R. 46 :
36 I. C. 671 ; Abdttar Masjid, 10 Bur. L. T. 19 : 9 L. B. R. 31 : 36 I. C. 168 : 1 7
Cr. L. J. 488.

(m) (1928) 32 C. W. N. 699.

(n) (1929) 67 C. 11 : 631 34 C. W. N. 340 : 61 C. L. 477.

(o) Ganpal Sitaram, (1914) 16 Bom. L. R. 622 : 24 I. C. 834.

(p) V. S. M. Moideen Bros. v. Eng. Thamg & Co., (1916) 9 L. B. R. 46 : 10
Bur. L. T. 216 : 17 Cr. L. J. 643 : 30 I. C. 691 .

(q) Jit rs Kanchi l>oraisamy Mudaliar. (1910) 7 M. L. T. 309 : 11 Cr. L. J. 393

6 1. C. 083. i

OF TRADE AND PROPERTY-MARK

961

SEC. 483 ]

when once a prima facie case has been established, a limited company can prove
its innocence by the evidence of its agents, servants or otherwise as it thinks fit (r).

* without intent to defraud * : — The onus is on the accused to show that
he had no intent to defraud. It is difficult to prove affirmatively the infringement
of the trade-mark. But the accused may show that his trade-mark was registered
and that he may establish that he was ignorant of the other trade or property-mark,
that he had bona fide dispute and he may further show that his mark is not calculated
to deceive the public.

Mellish, L. J., held : “ The test by which a trade-mark has become ‘ public
juris * must be, whether the use of it by other persons is still calculated to deceive
the public, whether it may still have the effect of inducing the public to buy goods
not made by the original owner of the trade-mark as if they were his goods " (s).

Lord Hatherly, L. C., held : “ The offence consisted in putting upon the
labels which naturally led and from evidence of suspicious conduct, we are justified
in saying, was intended to lead to the conclusion on ihe part of the public that
whilst they buy the respondent’s goods they are buying an article manufactured
by the appellants, they do buy it in consequence of a name being used, the celebrity
of which was first acquired by its being applied to the appellants’ manufacture,
which of course they think it continues to be ” (t).

In India registration is not necessary in order to complete title to a trade-mark
and there is no warrant for the broad proposition that a letter or the combination of
letters cannot constitute a trade-mark (u).

No trader has a right to use a trade-mark so nearly resembling that of another
trade as to be calculated to mislead incautious purchasers. The use of such a trade-
mark may be restrained by injunction, although no purchaser has actually been
misled ; for the very life of a trade-mark depends upon the promptitude with which
it is vindicated (v).

The actual physical resemblance of the two marks is not to be the sole question
for consideration. If the goods of a manufacturer have from the mark or device
he has used becomes known to the market by a particular name, the adoption by a
rival trader of any mark which will cause his goods to bear the same name in the
market may be as much a violation of.,the rights of that rival as the actual copy of
device (w).

483. Whoever counterfeits any trade mark or property
Counterfeiting a mark used by any other person shall be

trade mark or property punished with imprisonment of either
mark used by another, description for a term which may extend

to two years, or with fine, or with both.

Counterfeits — s. 28. Trade-mark — s. 478.

Property-mark — s. 479. Person — s. M.

(r) Seena M. Iianiff 6* Co. v. Liptons Ltd., (1913) 7 L. B. R. 306 : 7 Bur. L. T.
1116: 15 Cr. L. J. 337 : 23 I. C. 689.

(s) Ford v. Foster , (1872) L. R. 7 Ch. App. 611 (628 ) ; A. M. Melumir Co . v.
Finlay Flemming Co., (1929) 7 R. 169.

(t) Wotherspoon v. Currie, (1872) L. R. 6 H. L. C 608 (618) ; Per Lord Selborne,
in Singer Manufacturing Co. v. Loog t (1882) 8 App. Ca. 15 (18).

(u) Banarasi Das, (1928) 9 L. 491.

(v) Johnston v. Orr-Ewing, (1882) 7 App. Ca. 219 (226); bee Sotlehurr v.
A ppoliineris Co., (1897) 1 Ch/ p. 900.

(w) > P , A. Pahir Wfohamedi A. I. R. (1929) R. 322.

67

962

THE INDIAN PENAL CODE

[CHAP. XVIII

Although * intent to defraud * is not used in Ss. 483-485 the definition of
counterfeiting fs. 28) includes deception, so fraud is involved in those sections.
These 3 sections apply to actual and not to constructive imitations.

Procedure : — Non-cognizable — Warrant — Bailable — Compotmdable when per-
mission is givemby the Court before which the prosecution is pending (x) — Triable
by Presidency Magistrate or Magistrate of the first or second class.

Charge I ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of- , at ,

counterfeited a trade-mark or property-mark, to wit , used by XY 9

and that you thereby committed an offence punishable under s. 483 of the Indian
Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Limitation for prosecution : — Under Ss. 482-489, vide $. 15 of the Mer-
chandise Marks Act IV of 1899 quoted under commentary to the last section
as also in the Appendix.

484. Whoever counterfeits any property mark used by a
Counterfeiting a Public servant, or any mark used by a public
mark used by a public servant to denote that any property has been
servant ‘ manufactured by a particular person or at a

particular time or place, or that the property is of a particular
quality or has passed through a particular office, or that it is
entitled to any exemption, or uses as genuine any such mark
knowing the same to be counterfeit, shall be punished with
imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.

Counterfeit— s. 28. Public servant— s. 21 .

This section punishes the same offence as is dealt with under the last section
but provides for an enhanced punishment as the offence is committed by a public
servant.

Procedure : — Not cognizable — Summons — Bailable — Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

Limitation to prosecution : — Vide s. 15 of the Merchandise Marks Act
(Act IV of 1899) quoted in commentary to s. 482 and also in the Appendix.

Charge : — I (name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the day of — , at ,

counterfeited any property-mark (or mark) to wit— — , used by a public

servant, to wi t — - — , to denote that some property had been manu-
factured by XY * [(or at a particular time or place, to wit , or that

the property is of a particular quality, to wit , or has passed through

a particular office, to wit or that it is entitled to a certain exemption,

-to wit ) (or used as genuine a mark or property-mark, to wit— ,

knowing the same to be counterfeit)] and that you thereby committed an offence
punishable under s. 484 of the Indian Penal Code* and within my cognizance (or
the cognizance of the Court of Session or the High Cotirtj.

And I hereby direct that you be tried (by the said Court) on the said charge.

(x) These words were substituted for “Not compoundable “ by Act XVIII of
) 923 . ■ * "

SECS. 485*86 ]

OF TRADE AND PROPERTY-MARK

963

485 . Whoever makes or has in his possession ' any die,
m i-* . pl flte or other instrument for the purpose

of any instrument for ot counterfeiting a trade mark or property

maTk te orpro n ^rty a mar d k e mark « or has in , hi ® Possession a trade mark
or property mark for the purpose of denot-
ing that any goods are the manufacture or merchandise of a
person whose manufacture or merchandise they are not, or that
they belong to a person to whom they do not belong, shall be
punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.

This section punishes making or possession of any instrument for counter-
feiting a trade-mark or property-mark. Compare the analogous provisions contained

in Ss. 235, 256 and 472, supra .

Petitioner was held to have been rightly convicted under this section when it
was found that the mould in question was intended for the purpose of counterfeiting
a trade-mark although the apparatus for counterfeiting the label which would com-
plete the trade-mark had not been found (y).

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first class.

See Ss. 8 and 9 of the Merchandise Marks Act quoted in the Appendix.

Charge : — I ( name and office of Magistrate, etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

made (or had in your possession) a certain die, Ex. , (or plate or instru-
ment, to wit — ,) for the purpose of counterfeiting a trade-mark (or

property-mark) of XY for the purpose of denoting that certain goods, to wit

are the manufacture (or merchandise) of the said XY whose manufacture, (or mer-
chandise), they are not (or in the case of property-mark, add that they belong to the
said XY to whom they do not belong) and that you thereby committed an offence
punishable under s. 485 of the Indian Penal Code, and within my cognizance (or
the cognizance of the Court of Session or the High Court).

And 1 hereby direct that you be tried (by the said Court) on the said charge.

486 . Whoever sells, or exposes, or has in possession for
Selling goods marked sale or any purpose of trade or manufacture,
with a counterfeit trade any* goods or things with a counterfeit trade
mark or property mark. mar j< of property mark a fi xe d t » or impressed

upon the same or to or upon any case, package or other receptacle
in which such goods are contained, shall, unless he proves —

(a) that, having taken all reasonable precautions against
committing an offence against this section, he had
at tho tim^ of the commission of the alleged offence
no reason to suspect the genuineness of the mark,
and

» '

(y * Abdul Sobhan y, Ramani Mohan Cfyitterjee, A, I. R. (1930) Cal. 004,

964

THE INDIAN PENAL CODE

{CHAP. XVIII

(b) that, on ckmand made by or on behalf of the prose-

cutor, he gave all the information in his power with
respect to the persons from whom he obtained such
goods or things, or

(c) that otherwise he had acted innocently,

be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both.

This section punishes sale of goods marked with a counterfeit trade-mark or
property-mark and like s. 482, supra , throws the onus on the defence (z).

" The seller of goods marked with counterfeit marks is punishable when he
knows that the marks are forged or counterfeit ; but to constitute this offence there
must be also an intention to deceive, injure or damage. Suppose a person who
is the owner of an article falsely marked with the name of a celebrated maker,
sells the article not knowing that the mark is false, or knowing this but not intending
to practise deception or to injure, he commits no offence. But it is otherwise if
he leads the buyer to believe that the mark is genuine and thus induced him to
purchase it or to pay a larger price for it than he would otherwise have done” (a).

The proper test s — The question is not whether a purchaser would be
deceived if he had the two articles side by side but the matter must be considered
from the point of view of an unwary purchaser fb).

The intent to defraud the purchaser is not a necessary ingredient of the offence
charged as indicated by the present section and in a case where the accused was
summoned under Ss. 2 and 3 of the Merchandise Marks Act, 1887 (50 and 51 Viet,
c. 28) for having in his possession for sale, goods to which a false trade-description,
namely the false name of the appellant was applied, the Magistrate found that the
accused had no intent to defraud the purchaser of the trade-description and he must
therefore be deemed to have ‘acted innocently’ within the meaning of s. 2, sub-s. (2)
and on those grounds he dismissed the summons. It was held on appeal that the
Magistrate was wrong for that an intent to defraud the purchaser was not a neces-
sary ingredient of the offence charged (c).

o

Procedure : — Non-cognizable — Summons Bailable Compoundable with

permission of the Court before which the prosecution is pending (d) — Triable by
Presidency Magistrate or Magistrate of the first or second class.

The prosecution need only prove — that the trade-mark or property-mark
is counterfeit, that the accused sold or exposed or had in his possession for sale
or any purpose of trade or manufacture any goods with such counterfeit mark.

The defence will then have to rebut the charge-4 by proving clauses (a), (b)
and (c) of the section.

The first defence presupposes that the person charged believed the trade-
mark in question to be a genuine trade-mark. The second defence presupposes
that the person charged did not know that the tfkde-mark in quesljpn was the
trade-mark of any firm or person (e). - *

(z) Holland Bombay Trading Co . v. Buktear Mull, (1903J $ W. N. 421.

(a) Morgan and Macpherson 4 Penal Code ' pp. 426, 427.

(b) AswiniKumar Pal t (1930) 34 C. W. N. 324. ■*. .

(c) Cristi Manson and Woods v. Cpoper, (1900) 2 Q. B. 522.

(d) These words were substituted for " Not comjxumdable ” by Act JCVJII of

(e) llaki Buksh , (1897) A. W. N. 99 4

SEC. 486 ] OF TRADE AND PROPERTY- MARK 965

The onus is on the accused to bring himself within the exception to this
section.

Jurisdiction : — A Magistrate has jurisdiction to try an offence under this
section if the accused be shown to be in possession of goods with a counterfeit
trade-mark for sale or any purpose of trade or manufacture, though the sale, or
the trade or the manufacture for the purpose of which the accused has the goods
in his possession, be not intended to take place within the jurisdiction of the Court
in which the complaint is lodged (f).

Bona fide dispute: — Where K, a merchant of Calcutta, ordered certain
gX>ods from Europe, but refused to take delivery of the consignment on its arrival
in Calcutta and thereupon the goods were sold in the market with the label of the
firm of K attached thereto and were purchased by M a dealer in piece goods, but
M sold the goods without removing the labels of K and was convicted under this
section, the Calcutta High Court held that no offence was committed eitnlr under
s. 482 or 486 (g). Maclean, C. J., held t: “When a case of this class is brought
into a criminal Court, if the Magistrate is of opinion that there is a bona fide dis-
pute as to whether the complainant has any trade-mark at all or whether the
accused is or is not entitled to use the mark he is using, I say, if the Magistrate
is satisfied that there is this bona fide , he should not deal with the matter as a
criminal matter, but leave it to the complainant to maintain, if he can, in a civil
Court the right which he claims*’ (h).

Limitation: — Prosecution under this section is time-barred under s. 15 of
the Merchandise Marks Act if not instituted within three years after the com-
mission of the offence or one year after the prosecutor first became aware of it.

Forfeiture : — After conviction under this section the goods will be forfeited
under s. 9 of the Merchandise Marks Act quoted in the Appendix.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at — ,

sold (or exposed or had in possession for sale or for the purpose of trade or manu-
facture) certain goods or things, to wit with a trade-mark (or property-

mark) affixed to or impressed upon the same (or to or upon any case, package or
other receptacle in which such goods are contained) which was a counterfeit of

the trade-mark (or property-mark) of and that you thereby committed

an offence punishable under s. 486 of the Indian Penal Code and within my cog-
nizance.

And I hereby direct that you be tried on the said charge.

Selling goods marked with a counterfeit trade-mark or property-
mark: — Where the general get-up of the labels of tooth-powder tins of two
different manufacturers was almost identical, the Bombay High Court held that
the offence under this section had been made out and that for the purposes
of the case before the Court, false trade-mark, and counterfeit trade-mark were
the same thing fi).

(f) Yusuf Mahomed Abamth v. Bansidhar Siraogi, (1898) 25 C. 639: 2 C. W. N.

450.

(g) Matilal Premsuk v . Kanhai Lai Das, (1905) 32 C. 969.

(h) Dowlat Ram, (1905) 32 C. 431 (436), followed in Surja Prasad v. Mahabir
(1907) 11 C. W. N. 687.

(i) Ganpat Sitaram Mukadam, (1914) 16 Bom. L. R. 78 : 15 Cr. L. J. 522 : 24
I. C. 834.

966

THE INDIAN PENAL CODE [CHAP. XVIII

A mark to be a trade-mark must be a mark used for denoting that the goods
are the manufacture or the merchandise of a particular person (j).

Where goods bearing a counterfeit trade-mark were seized before they were
delivered to the commission agents who were acting as intermediaries between the
manufacturer and the importers, it was held that the commission agents were not
liable under this section (k).

CL (c) : — Where the complainant and the accused were soda-water manu-
facturers and each had specified bottles of his own firm and it was a common practice
in Calcutta that water-manufacturing firms used bottles indiscriminately, held , the
accused (Byron & Co.) had acted innocently within the meaning of this section
cl. (c) in using Rose and Thistle’s bottles (1).

487 . Whoever makes any false mark upon any case, package
Makinl a false mark or other receptacle containing goods, in a
upon any receptacle con- manner reasonably calculated to cause any
taming goods. public servant or any other person to

believe that such receptacle contains goods which it does not
contain or that it does not contain goods which it does contain,
or that the goods contained in such receptacle are of a nature or
quality different from the real nature or quality thereof, shall,
unless he proves that he acted without intent to defraud, be
punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.

This section punishes the making of a false mark upon any receptacle or goods
in any manner reasonably calculated to deceive a public servant or any other person.
It is wider in its import than the provisions of Ss. 482 and 486, supra, in that this
section is not confined to trade-mark or property-mark but applies to any ccse of
false mark. The onus is on the defence to prove that he had ‘ no intent to defraud.’

“The making of false marks of any description on goods for the purpose of
deceiving customs officers or other public servants is punishable when it is done
fraudulently” (m).

See commentary to s. 482 1 on intent to defraud.*

Procedure s — Non-cognizable — Summons — Bailable Not compoundable —

Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Forfeiture: — See s. 9 of the Merchandise Marks Act and Limitation — s. 15
of the said Act quoted in the Appendix.

Charge s — I (name and office of Magistrate , etc.) hereby charge you ( name
of accused) as foliows: —

That you, on or about the ; day of - - '■ * at- ,

made (or made use of) a false mark, to wit—* — *-upon a case, to wit ,

(or package or other receptacle containing goods) in a maimer reasonably calculated

to cause a public servant, to witr (or any other person to wit )

to believe that such case contains goods, to wit—; — which it does not

contain (or that it does not contain goods which it does contain or that the goods

(j) A nookool Chttnder Nundy, (1900) 27 C. 777.

(k) Hargobind v. Greaves , Cotton & Co (1902) P. R. No. 32 0# 1902.

(l) Olpadavala v. Wright , (1928) 32 C. W. N. 111Q.

(m) Morgan andMacpherson * Penal Qode ' p. 427.

SECS. 488-89 ] OF TRADE AND PROPERTY-MARK

967

contained in such receptacle are of a nature or quality different from the real nature or
quality different from the real nature or quality thereof) and that you thereby com-
mitted an offence punishable under s. 487 (or s. 488) of the Indian Penal Code,
and within my cognizance (or the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

488. Whoever makes use of any such false mark in any
Punishment for mak- manner prohibited by the last foregoing

ing use of any such false section shall, unless he proves that he acted
mark ’ without intent to defraud, be punished as

if he had committed an offence against that section.

This section provides punishment for 4 making use of any false marl&V where-
as the preceding section punishes the making of any false mark upon any case, pack-
age, etc. In other respects this section is the same as the preceding section.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Court of Session, Presidency Magistrate or Magistrate of the first or
second class.

Charge : — See form set out under s. 487.

489. Whoever removes, destroys, defaces or adds to any
Tampering with pro- property mark, intending or knowing it to be

perty mark with intent likely that he may thereby cause injury to
to cause injury . any person, shall be punished with imprison-

ment of either description for a term which may extend to one
year, or with fine, or with both.

Injury — s. 44. Property-mark — s. 479.

This section punishes tampering with property-mark with intent to cause
injury. It does not deal with the tampering of a trade-mark. This section
generally applies to a case where a person removes a property-mark, e.g., a pillar
indicating Government property in order to misappropriate the same.

Procedure : — Non-cognizable — Summons — Bailable — Not compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

The onus is on the prosecution to prove —

(1) that the accused removed, destroyed, defaced or added to any property-
mark.

(2) that he then intended or knew it to be likely that he ipay thereby cause
injury to any person,

Charge : — t (name and office of Magistrate, etc.) hereby charge you ( name of
accused) as follows : — *

That you, on or about the day of , at ,

removed (or destroyed, defaced or added) to a property-mark, to wit

(describe it) intending (or knowing it to he likely) that you may thereby cause
injury to XY and that you thereby committed an offence punishable under s. 489
of the Indian Penal Cod% and within my cognizance.

And I hereby direct that you be tried pn the said charge.

968

THE INDIAN PENAL CODE

[CHAP. XVIII

0/ Currency Notes and Bank Notes.

* 489 -A. Whoever counterfeits, or knowingly performs any
Counterfeiting cur- part of the process of counterfeiting, any
rency-notes or bank- currency-note or bank-note, shall be punished
notes ‘ with transportation for life, or with imprison-

ment of either description for a term which may extend to ten
years, and shall also be liable to fine.

Explanation. — For the purposes of this section and of sec-
tions 489-B, 489-C and 489-D, the expression “ bank-note ” means
a promissory note or engagement for the payment of money to
bearer on demand issued by any person carrying on the business
of banking in any part of the world, or issued by or under the
authority of any State or Sovereign Power, and intended to be
used as equivalent to, or as a substitute for, money.

Counterfeiting — s. 28.

This section and Ss. 489-B, 489-C and 489-D were inserted by s. 2 of the
Currency Notes Forgery Act (XII of 1899). This section punishes counterfeiting
of currency notes or bank-notes. S. 231 punishes counterfeiting of coin and s. 255
deals with counterfeiting of Government stamp. The explanation to the section
protects all bank-notes whether Indian or foreign from being counterfeited.

See also commentary on Ss. 231 and 255, supra.

Scope : — In the case of the counterfeiting of currency notes, both ability and
materials of a particular kind are required (n).

Procedure: — Cognizable — Warrant — Not Bailable — Not compoundable —
Triable by Court of Session.

Charge : — Where the accused and two others were charged under Ss. 489-A,
489-B and 489-D, read with s. 120-B and in the alternative under s. 489-D, two
other persons were further charged under s.* 489-A and the accused was charged
under s. 489-B, the trial ended in acquittal of the two persons on all the charges and
in the conviction of the accused under s. 489-B, held that the trial was not vitiated
by s. 239 (d), Cr. P. Code (o).

Form of charge : — I (name and office of Magistrate, etc.) hereby charge
you ( name of accused) as follows : —

That you, on or about the day of , at—*———,

counterfeited (or knowingly performed any part of the process of counterfeiting)
a currency note (orbank-note) for (state value) and you thereby committed an offence
punishable under s. 489-A of the Indian Penal Code and within the cognizance of
the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Attempt When admittedly according to the Sessions Judge no offence
was committed under s. 489-A even after the appellants had used their hill ability
and utilised all the materials at their disposal recourse cannot be had to s. 511
because the appellant's desire had ended in failure (p).

(n) Jwala, (1928) 61 A. 470 : A. I. R. (1928) All. 734? 27 A. L. T 127

(o) Gopal Raghunath, (1928) 63 B. 344 : 31 Bom? L. R. 148.

(p) Jwala, (1928) 61 A. 470 : A. I. (1928) All. 764 : 27 A. L. J. 127.

SEC. 489-B ] OF CURRENCY NOTES AND BANK-NOTES 969

489-B. Whoever sells to, or buys or receives from, any

Using as genuine forg- other P e . rson ’ or othermse traffics in or uses
cd or counterfeit cur- as genuine, any forged or counterfeit cur-
notes n ° teS ° r bank rency-note or bank-note, knowing or having
no e& reason to believe the same to be forged or

counterfeit, shall be punished with transportation for life, or with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.

Counterfeit — s. 28. Bank-notes — s. 489-A, explanation .

Reason to believe — s. 26.

This section punishes using as genuine forged or counterfeit currency notes or
oank-notes knowing or having reason to believe them to be forged or counterfeit in
other words, it is intended to stop the circulation of forged or counterfeit currency
notes or bank-notes. Similar offences relating to coins are punishable under
Ss. 239-241, and offence relating to sale of counterfeit Government stamp is
punishable under s. 258.

Object s — The object of the legislature in enacting this section was to stop
the circulation of forged notes by punishing all persons who, knowingly or
having reason to believe them to be forged, do any act which would lead them to
their circulation (q).

Counterfeiting currency notes or bank-notes It is not necessary
that the imitation should be exact (r).

Altering a banker’s one pound note by substituting the word ‘ ten ’ for the
word * one * has been held to be forgery (s).

* uses as genuine * — " There is no decided case on the subject, but we are
clear that the words * as genuine ’ gives the verb * uses ' and not any other verb. It
is true that when a person sells a forged note as a forged note, he practises no
deception upon the buyer who enters into the transaction with his eyes open ; and
such a seller should not be subjected to a criminal liability ” (t).

Procedure s — Cognizable — Warrant— Not bailable — Not compoundable —
Triable by Court of Session. ,

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

sold to XY (or brought from XY or trafficked in or used as genuine a forged (or

counterfeit) currency note to wit (or bank-note, to wit— )

knowing (or having reason to believe) the same to be forged (or counterfeit), and
that you thereby committed an offence punishable under s. 489-B of the Indian
Penal Code and within the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court *on the said charge.

Charge to Jury In a case where the accused was charged under Ss.489-B
and 489-C, held, the omission of the Judge to refer to the jury to the meaning of
the phrase ^reason to believe * as stated in s. 26, was not such a misdirection to
vitiate tfye trial (u).

(q) Bhika Ram, (1925) 7 L. 80 (82) : A. I. R. (1926) Lah. 72.

(r) R. v. Hoost , (1802) 2 East P. C. 950.

(s) Dyson Post, (1806) R. & R. 101.

(t) Bhika Ram , (182$) 7 T. 80 (82) : A. I. R. (1926) Lah. 72.

(p) Ram Chariter Singh,*( 1927) 7 P. 15, where Mari Valayan , (1907) 30 M. 44
was distinguished. „

970

THE INDIAN PENAL CODE

[CHAP. XVIII

489-C. Whoever has in his possession any forged or counter-

Possession of forged fei * currency-note or bank-note, knowing
or counterfeit currency- or having reason to believe the same to be
notes or bank-notes. forged or counterfeit and intending to use

the same as genuine or that it may be used as genuine, shall be
punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both.
Possession — s. 27. Counterfeit — s. 28.

Reason to believe — s. 26.

This section punishes possession of forged or counterfeit currency notes or
bank-notes knowing or having reason to believe them to be forged or counterfeit.

Analogous law This section is analogous to the provisions of Ss. 242 and
243 relating to coins and s. 259 relating to stamps.

Procedure : — Cognizable — Warrant — Bailable — Not compoundable — T riable
by Court of Session.

In order to bring a case under this section it is not only necessary to prove
that the accused was in possession of forged notes but it should be further
established (a) that at the time of his possession he knew the notes to be
forged or had reason to believe them to be so, and ( b ) that he intended to use them
as genuine or that they might be used as genuine (v).

Charge : — 1 ( name and office of Magistrate , etc.) hereby charge you ( name
of accused ) as follows : —

That you, on or about the day of , at ,

had in your possession a forged (or counterfeit) currency note (or bank-note) for
(state value of the note) knowing or having reason to believe the same to be forged
(or counterfeit) and intending to use the same as genuine (or that it might be used
as genuine) and thereby committed an offence punishable under s. 489-C of the
Indian Penal Code and within the cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

489-D. Whoever makes, or performs any part of the process
of making, or buys or sells or disposes of, or
instruments r STS has ^ his possession, any machinery, instru-
nais for forging or coun- ment or material for the purpose of being
notesor 8 bank-noto nCy ' used, or knowing or having reason to believe
that it is intended to be used, for forging or
counterfeiting any currency-note or bank-note, shall be punished
with transportation for life, or with imprisonment of either de-
scription for a term which may extend to ten years, and shall also
be liable to fine.

Analogous law : — This section is analogous to Ss. 233 and 234 relating to
coin, and Ss. 256 and 257 relating to stamps.

Procedure : — Cognizable—' Warrant — Not bailabje — Not compoundable —
Triable by Court of Session.

Charge : — 1 (name and office of Magistrate, etc.) hereby charge you ( name of
accused) as follows : —

(v) Bur Singh, (1930) 11 L. 555 : A. R. (1931) 'Lah. 24.

CRIMINAL BREACH OF CONTRACT

971

SEC. 490 ]

That you, on or about the day of , at-

made (or performed a part of the process of making or bought or sold or disposed of

or had in your possession) certain machinery, to wit , (or an instrument

or material, namely ) for the purpose of being used (or knowing

or having reason to believe that it was intended to be used) for forging (or counter-
feiting) a currency note (or bank-note) and thereby committed an offence punish-
able under s. 489-D of the Indian Penal Code and within the cognizance of the
Court of Session.

And I hereby direct that you be tried by the said Court on the said charge.

Expert witnesses s — Where the opinion of an expert witness was that with
the use of the materials found in possession of the accused a 5-rupee note could be
counterfeited and it was further discovered that the accused who was a man of
small means, had destroyed a 5-rupee note while treating it chemically, held that it
may be safely presumed that the intention of the accused was to counterfeit a
5-rupee note with the materials produced in Court (w).

Onus: — In a prosecution under this section, when it alleged that the accused
has any instrument or material solely “ for the purpose of being used for counter-
feiting any currency-note,” the onus is on the prosecution to shew that the accused
had formed in his mind the purpose or intention of counterfeiting currency notes (x).
Mr. Justice Ayling, however, in the above case delivered a dissentient judgment
holding that where the nature of the articles is such as to render them peculiarly
and specially suitable for counterfeiting work and useless for any other that can be
suggested, the intention to use them for counterfeiting may be fairly inferred, subject
to a rebuttal by the accused.

In considering an offence of possessing instruments for forging or counter-
feiting currency notes under this section, it is not necessary to prove that the accused
had the ability to produce counterfeit notes with materials in his possession (y).

‘ having reason to believe * : — The word ‘ believe ’ is much stronger than
the word ‘ suspect * and involves the necessity of shewing that the circumstances
were such that a reasonable man must have felt convinced in his mind that he was
dealing with a forged or counterfeit currency note or bank-note. In this connec-
tion see Rango Timajts case (z), in which the word 1 believe * in s. 414 was inter-
preted.

CHAPTER XIX.

Of the Criminal Breach of Contract of" Service.

490 . [ Breach of Contract oj Service during voyage or jour-
ney] Repealed by the Workmen s Breach of Contract Repealing
Act (III df 1925).

(w) Ayyab, (1928) 20 A. L. J. 1391 where Abdul Rahman, (1921) 21 M. L. J.
761 was distinguished.

(x) Abdul Rahiman, (1911) 21 M. L. J. 706 : 10 M. L. T. 108, distinguished in
Ayyab, (1928) 26 A. L. J. 1391.

(y) Jwala, (1928) 51 A. 4,70 : 27 A. L. J. 127 : A. I. R. (1928) All. 754.
z) 1880) 6 B. 402, followed in Kanitppa Naicher, (1913) M. W. N. 096.

972 THE INDIAN PENAt CODE [ CHAP. XX

491. Whoever, being bound by a lawful contract to attend

„ on or to supply the wants of any person,

attend on and supply who, by reason or youth, or or unsoundness
wants of helpless per- m ; n d t or c f a disease or bodily weakness,

is helpless or incapable of providing for his
own safety or of supplying his own wants, voluntarily omits so
to do, shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine which
may extend to two hundred rupees, or with both.

The Authors of the Code observe : “ We also think that persons, who con-
tract to take care of infants, of the sick, and of the helpless, lay themselves under
an obligation of a very peculiar kind, and may with propriety be punished, if they
omit to discharge their duty. The misery and distress which their neglect may
cause is such as the largest pecuniary payment would not repair ; they generally
come from the lower ranks of life and would be unable to pay anything. We
therefore propose to add to this class of contracts the sanction of the penal law *' (a).

Procedure : — Not cognizable — Summons — Bailable — Compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class — Triable
summarily.

Complaint See s. 198 of the Code of Criminal Procedure.

Person who by reason of youth, etc. — Where the accused was engaged as
an ordinary cook to a family and was not bound by contract to attend on or supply
the wants of any helpless man, held this section would not apply (b).

492. [Breach of Contract to serve at distant place to which
servant is conveyed at master s expense ]. Repealed by the Work-
men's Breach of Contract Repealing Act (III of 1925 ).

CHAPTER XX.

Of Offences Relating to Marriage.

493. Every man who by deceit causes any woman who is
, not lawfully married to him to believe that
by a man deceitfully in- she is lawfully married to him and to cohabit
during a belief of lawful or have sexual intercourse with him in that
ma ma 6 e. „ belief, shall be punished with imprisonment

of either description for a term which may extend to ten years,
and shall also be liable to fine.

Procedure : — Not cognizable — Warrant— Not bailable — Not compoundable —
Triable by Court of Session.

Complaint No Court shall take cognizance of an offence under this section
except on a complaint made by some person aggrieved by the offence (c).

(a) Note P.

(b) Solomon , (1887) Rat. Unrep. Cr. C. 354.

(c) S. 108, Criminal Procedure Code. *

SEC. 494 ]

OFFENCES RELATING TO MARRIAGE

973

Chaffs: — I. (name and office of Magistrate, etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the ' d ay of- , at—————,

by deceit caused a certain woman, viz., XY, who was not lawfully married to you, to
believe that she was lawfully married to you and cohabited or had sexual inter-
course with her, and that you thereby committed an offence punishable under
s. 493 of the Indian Penal Code and within the cognizance of the Court of Session
(or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

494. Whoever, having a husband or wife living, marries
in any case in which such marriage is void
by reason of its taking place during the life

mfi[ lifetime of nusD3.nd / ill i i n i # i i

or wife. or such husband or wire, shall be punished

with imprisonment of either description
for a term which may extend to seven years, and shall also be
liable to fine.

Exception. — This section does not extend to any person whose
marriage with such husband or wife has been declared void by a
Court of competent jurisdiction ;

nor to any person who contracts a marriage during the life of
a former husband or wife, if such husband or wife, at the time of
the subsequent marriage, shall have been continually absent from
such person for the space of seven years, and shall not have been
heard of by such person as being alive within that time, provided
the person contracting such subsequent marriage shall, before
such marriage takes place, inform the person with whom such
marriage is contracted of the real state of facts so far as the same
are within his or her knowledge.

4

Scope ; — A Hindu or Mahomedan male cannot be punished for the offence of
4 Bigamy/

Procedure ; — Not cognizable — Warrant — Bailable — Not compoundable —
Triable by Court of Session.

Complaint: — Under s. 198 of the Code of Criminal Procedure no Court
shall take cognizance of an offence under this section except upon a complaint by
some person aggrieved by the offence.

The proviso to s. 198, Cr. P. Code, added by Act XVIII of 1923 has restored
the following cases (c 1 ) which held that the husband's brother was not a person
aggrieved in a case where the wife of the lunatic was prosecuted for bigamy. The
first husband or the second is a person aggrieved (c 2 ) similarly the father-in-law
may file a complaint for a bigamy of his daughter-in-law (c 3 ).

Jurisdiction to try:— The proper course to try a charge under this section
is the Court which has territorial jurisdiction at the place where the offence was com-

(cl) Bax Ruksh Manx, (1886) 10 B. 340 followed in Imtazam , (1902) 23 A. 132.
(c2) Deputy Legal Remuner v, Savna Katuni, (1899) 26 C. 336,

(c3) Daem Sarftar v. Batu Dhail , (1906) 3 C. L. J. 38.

974

THE INDIAN PENAL CODE

[ CHAP. XX

mitted (d). As shown by illustration, (a) to s. 180,. Cr. P. Code, a charge of abet-
ment of bigamy might be enquired into by the city magistrate, if the abetment
was committed within the local limits of his jurisdiction (e).

Charge : — 1 ( name and office of Magistrate , etc.) hereby charge you (name
of accused) as follows : —

That you, on or about the—; day of ; » a * ~~ “ "»

having a wife (or husband) to wit—; , living, married again Xx, and such

marriage being void by reason of its taking place during the life- time of the said
wife (or husband) and that you thereby committed an offence punishable under
s. 494 of the Indian Penal Code and within the cognizance of the Court of Session
(or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

The Calcutta High Court by a circular letter No. 747 has held that it does
not follow that every second marriage is void in this county, because it is contracted
during the life-time of the first husband so it is not material to insert in the charge,
‘having a husband living married again husband* (f).

Proof of marriage : — See s. 50 of the Indian Evidence Act. In the cases
of bigamy, adultery or enticing of married woman, the fact of the marriage must be
strictly proved (g).

To justify a conviction under s. 498 of the Indian Penal Code mere statements
of witnesses that the complainant had lived with his alleged wife as husband and
wife is not sufficient. It is necessary that the facts which would constitute a valid
marriage should be proved in accordance with s. 50 of the Evidence Act (h).

A Hindu marriage is a sacrament and the rule is now firmly established that a
marriage which is duly solemnized and is otherwise valid, is not rendered invalid
because it was brought about without the consent of the guardian in marriage or
even in contravention of an express order of the Court (i).

Mere statement of the complainant and the woman is not sufficient (j), but
it is not possible to lay down any hard and fast rule, and the husband or wife is
not precluded from proving his or her marriage and in a case where the com-
plainant, the woman, and her mother, swore to the fact of the marriage while the
accused did not cross-examine the witnesses as to the fact or validity of the marriage
or otherwise infringe it, it was held that the 4 marriage was sufficiently proved (k).

It is not only the factum but the validity of the first marriage that must be
strictly proved (1).

In ‘ bigamy ’ cases, if the marriages are proved by a person present at the
time it is not necessary to prove the registration or license or banns. And it seems
that the assuming a fictitous name upon the second marriage will not prevent the
offence from being complete (m).

The necessity of proof of validity of marriage applies, however, only to the first
marriage and parties cannot be allowed to evade the punishment for an offence,

(d) Mt. Bkagwatia , (1924) 3 P. 417.

(e) Govardhan Ridkaran, (1928) 30 Bom. L. R. 387.

(f) 8 W. R. (Cr. L.) 9.

(g) Pitamber Singh , (1879) 5 C. 566 (F. B.) overruling Wazira, (1872) 17 W. R.
(Cr.) 5 : 8 B. L. R. App. 63, Pruhlud Barman, 34 C. W. N. 227.

(h) Arshed AH, (1883) 13 C. L. R. 125. •

(i) Gajja Nand, (1921) 2 L. 288.

(j) Dal Singh, (1897) 20 A. 166; followed in Nazir, Khan (1913) 36 A: 1 ; v.
Bnddhar, (1920) 42 A. 401 ; see also Kalu, (1883) 5 All. 233.

(k) Subbarayan, (1885) 9 M. 9 (11).

(l) RegosKay , (1887) 18 Cox. 292.

(m) William Allison, (1806) R. and R, J09.

SEC. 494 ]

OFFENCES RELATING TO MARRIAGE

975

by contracting a concertedly invalid marriage (n). Strict proof of Sagai form of
marriage during the lifetime of the first husband is required (o).

Proof of marriage among the Hindus In this country there is no statu-
tory marriage law for natives and the validity of any particular marriage depends
chiefly on the usage of the caste to which the parties belong (p).

Marriage amongst Mahomedans : — In a legal Mahomedan marriage, a
Molla has to be present with the necessary witnesses and vakils to read the Sigha
(formula) and the Akd has to be performed. The Sigha (formula) recited at the
marriage of minors is different from that recited at the marriage of adults. Under
the Mahomedan law when a child is given in marriage by any person other than
the father or grand-father he or she has the option of either ratifying it or re-
pudiating it on attaining puberty. This is called the Khyar-ul-bulugh or option
of puberty. Under the Shia law such a marriage is of no effect until it is ratified
by the minor upon his or her attaining majority. The Shafees agree with the
Shias in this view. The difference between the Sunni and the Shia law, however,
on the question of option of puberty is that, whereas according to the latter school
a marriage contracted for a minor by a person other than the father or grand-father
is wholly ineffective until it is ratified by the minor on attaining puberty, according
to the (Hanafi) Sunni school, it continues effective till it is cancelled by the minor.
The Sunni school presumes ratification when the girl after attaining the age of
puberty has remained silent and has allowed the husband to consummate the
marriage (q). It has been held, however, that so far as authorities with reference
to the Hanafi law go, any special recitation is not necessary for the validity of mar-
riage, and if the father of a minor girl is present and a consenting party to the
marriage, the marriage is irrevocable by the girl after her attainment of puberty (r).
But it should be noted that it is essential according to the Mahomedan law that the
husband should be capable of giving a valid consent or should be represented by
some who can lawfully consent on his behalf and the girl also when a minor should
be represented by a duly authorised person for the purpose of binding her (s).

Marriage after apostacy of husband The Mahomedan law does not
permit a marriage between a Mahomedan female and a non-Mahomedan male and
if the husband of a Mahomedan female embraces Christianity, the marriage becomes
ipso facto void and the wife by contracting a second marriage does not commit
bigamy. There is no difference if the husband is reconverted to Islam during the
period of Iddat and the wife marries again during such period (t).

On a Mahomedan becoming an Ahmediyan, he does not become an apostate
and his wife is guilty of bigamy if she marry again (u). In converse cases the
law is a little different and when the parties were non-Moslems and the wife became
a convert to Islam, in a country subject to the laws of Islam, the faith will be offered
for acceptance to the husband and on his refusal the Judge will make a decree for
separation or cancellation of the marriage. Without the decree of Court, the

(n) Penson , 5 C. and P. 412,

(o) Fegu Tanli , (1925) 7 P. L. T. 443 ; 27 Cr. L. J. 867 : A. I. R. (1926) Pat.

346.

(p) Subbar ay an, (1885) 9 M. 9 ; Appasami , 1 M. H C. R. 375.

(q) BadalAurat, (1891) 19 C. 79.

(r) Sheikh A limuddin, (1906) 10 C. W. N. 982, distinguishing Badal Aural , (1891)

19 Cal. 79. .

(s) Sabarati v. Jungli , 2 C. W. N. 245.

(t) Abdul Gant v. Azizul Haq, (1911) 39 C. 409 : 16 C. W. N. 451 : 15 C. L. J.
263 : 13 Cr. L. J. 257 : 14 I. C. 641 ; Amin Beg V. Saman, 33 All. 90.

(u) Parakkal Mamu Narantakath Avallah v. Parakkal Mamu, (1922) 45 M.
986: 43 M. L. J. 633 : (1922) M. W. N. 662 : 16 L. W. 626 ; 24 Cr. L. J. 17 ; 71
I. C. 65 : A. I. R. (1923) Mad. *71,

976

THE INDIAN PENAL CODE

[CHAP. XX

marriage is not dissolved and when a Hindu wife marries a second time after
conversion to Islam before getting a decree of the Court for cancellation of the
marriage, she becomes guilty of the offence of bigamy (v). It should be noted that
India is Dural Islam where Mahomedan law is administered.

Parsi marriage : — The marriage and divorce of Parsis are regulated by the
provisions of the Parsi Marriage and Divorce Act 1865 (w).

Jewish marriage : A contract in writing between the parties is essential
to the validity of a Jewish marriage ; and in order to prove a Jewish marriage
production and proof of the execution of such document is necessary (x).

Christian marriage: — Christian marriage in India are regulated by the
Christian Marriage Act (Act XV of 1872) (y).

Among Christians, proof that a Christian priest officiated and performed the
ceremony according to the rights and customs of the country in which it was
celebrated, would be sufficient presumptive evidence of the marriage (z). Widde,
J., observed : “ I consider that marriage as understood in Christendom may be
defined as the voluntary union for life of one man and one woman, to the exclusion
of all others " (a). If the marriages are proved by a person present at them, it is
not necessary to prove the registration, or license, or banns . And it seems that
assuming a fictitious name upon the second marriage will not prevent the offence
from being complete (b). ft being settled by the decision in Queen v. Millis,
that to constitute a valid marriage by the common law of England, it must have
been celebrated in the presence of a Clergyman in Holy Orders, the fact that the
bridegroom is himself a Clergyman in Holy Orders, there being no other clergyman
present, will not make the marriage valid (c). The prohibited degrees mentioned
in s. 19 of the Indian Divorce Act (IV of 1869) do not necessarily mean the degrees
prohibited by the law of England (d).

Civil marriage : — See Act III of 1872, Ss. 15 and 16.

Apostacy : — A Christian marriage is not dissolved by the apostacy of one of
the parties and a subsequent marriage of a Christian wife after her conversion to
Islam is a bigamy (e). Even if a Christian having a Christian wife marries a Hindu
woman according to Hindu rites, he does not Escape punishment for bigamy whether
he had renounced the Christian religion or not before such marriage (f). A person,
who was baptised in infancy into the Roman Catholic Church but subsequently
relapsed with the rest of her family to Hinduism, was married to a Hindu ; hei
Hindu husband subsequently discarded her tmd alleged that he would not have
married her if he had known that she had been baptised. She was readmitted to

(v) Mt. Nandi , (1919) 1 L. 440 : 69 I. C. 33 : 32 Cr. L. J. 1, following Ram
Kumari, (1891) 18 Cal. 264.

(w) Act XV of 1866.

(x) Althauson' (1893) 17 Cox. 630.

(y) Kalandaivelu, (1917) 40 Mad. 1030.

S The Inhabitants of Brampton , 10 East 282.

Hyde v. Hyde and Woodmanse, 36 L. J. N. S. P. and M. S. 7, following
Warrender W arrander, 2 Cl. & F. 630.

(b) William Alison, (1806) R. and R. 109.

(c) Bemisk v. Beamish, (1859) 9 H. L, C. 174.

(d) Lopez v. Lopez, (1885) 12 C. 706 (F. B.),

(e) Ruri, P. W. R. No. 13 of 1919 (Cr.) : 5 P. R. 1919 (Cr.) : 20 Cr. L. J. 3 :
48 I. C. 493, following Anthony, (1910) 33 M. 371 and distinguishing Ram Kumari f
(1891) 18 C. 264.

(f) Lazar, (1907) 30 M. 550.

(g) Millard, (1887) 10 M. 218,

SEC. 495 ]

OFFENCES RELATING TO MARRIAGE

977

the Roman Cathojic Church and she then married a Christian husband during the
lifetime of her Hindu husband. It was held in such cases also that she was guilty
of bigamy (g). The Hindu marriage also does not dissolve upon apostacy of one
of the parties. The conversion of a Hindu wife to Muhamadanism does not
ipso facto dissolve her marriage with her husband and she cannot therefore during
his lifetime marry another person (h).

Void : — The word ‘ void * is not used in a technical sense in which it is used in
the Mahometan law. The Penal Code makes no distinction between a void and an
invalid marriage (i).

Exception : — The exception to this section indicates the defence to be taken.

It will be well to remember the proviso in conducting the defence.

Defence : — (1) It is a good defence to prove that the first marriage 4 has been
declared void by a Court of competent jurisdiction/

(2) It is equally a good defence to plead that the former husband or wife 4 at
the time of the subsequent marriage has been continually absent from such person
for the space of seven years, and shall not have been heard of by such person as
being alive within that time * (j).

The burden of proof that a prisoner charged with bigamy has not been con-
tinuously absent from his wife or her husband for seven years and that he or she
was not known to the other to be living within that time is on the prosecution and
not on the prisoner (k).

But where a woman marries again within sixteen months after cohabitation
with her first husband, she is found guilty when it is found that she did not use
all reasonable means in her power to inform herself of the fact of her first husband's
alleged demise (1).

Bona fide belief that husband or wife is dead Under the English law
it is a good defence (m). The Bombay High Court has held that it is not a good
defence to a charge under s. 494 of the Indian Penal Code though it may be taken
into account in mitigation of punishment (n).

Where seven years have elapsed the accused is under no obligation to prove
bona fide (o).

495. Whoever commits the offence defined in the last
o _ . . preceding section having concealed from

continent e or former- the person with whom the subsequent
marriage from person marriage is contracted, the fact of the former
marriage°i<r contracted^ marriage, shall be punished with imprison-
ment of either description for a term which
may extend to ten years, and shall also be liable to fine.

Scope : — A woman who does not use all reasonable means jn her power to
inform herself of the fact of her first husband*s alleged demise, and contracts a

(188
1 L.

(h) Government of Bombay v. Ganga, (1880) 4 B. 330 ; Gobardhan v. Jadamoni ,
1) 18 C. 252 ; Budansa Rowther v. Fatima, (1914) M. W. N. 278 ; Nandi , (1919)
440.

(i) Mt. Allah Di, (1927) 29 P. L. R. 533 : A. I. R. (1928) Lah. 844 (1).

(j) Twyning ; 2 B. & Aid. 388.

(k) Heaton, 3 F. and F. 819.

(l) Enai Beebe, (1865) 4 W. R. (Cr.) 25.

m) Tolson, (1889) 23 Q. B. D. 168.

n) Sambhu Raghu, (1876) 1 B. 347 but see EnaiBibi, (1865) 4 W. D. (Cr.) 25.
(o) Mohammad Nissa, (1900>P. R. No. 1 of 1900.

*

978

THE INDIAN PENAL CODE

[CHAP. XX

second marriage within 16 months after cohabitation with her first husband,
without disclosing the fact of the former marriage to her second husband, is liable
to enhanced punishment under this section (p).

Procedure: — Not cognizable — Warrant — Not bailable — Not compoundable
— Triable by Court of Session.

^Complaint: — Under s. 198, Criminal Procedure Code, complaint by the
person aggrieved is necessary.

496. Whoever, dishonestly or with a fraudulent intention,
„ . goes through the ceremony of being married,

fraud uTonUy^one knowing that he is not thereby lawfully
through without lawful married shall be punished with imprison-
mamage. ment of either description for a term which

may extend to seven years, and shall also be liable to fine.

Procedure: — Not cognizable — Warrant — Not bailable — Not compoundable
— Triable by Court of Session.

Complaint : — By the person aggrieved is necessary.

Charge: — I ( name and office of Magistrate , etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of , at , dishonestly

(or with a fraudulent intention) went through the ceremony of being married to
XY , knowing that you were not thereby lawfully married and that you thereby
committed an offence punishable under s. 496 of the Indian Penal Code and within
the cognizance of the Court of Session (or the High Court).

And I hereby direct that you be tried by the said Court on the said charge.

Fraudulently going through marriage ceremony without lawful
marriage: — The essence of an offence under this section is that the marriage
ceremony should be fraudulently gone through and that there should be no law-
ful marriage. When it is intended that there should be a valid marriage and not
only a show of marriage for some ulterior and fraudulent purpose, the case does not
come under this section (q).

497.

Adultery.

Whoever has sexual intercourse with a person who is
and whom he knows or has reason to be-
lieve to be the wife of another man, without
the consent or connivance of that man, such sexual intercourse
not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either
description for a term which may extend to five years, or with
fine, or with both. In such case the wife shall not be punishable
as an- abettor.

This section punishes ‘ adultery * which is no offence under the English Law.

Divorce Act, s. 61, is no bar to the injured husband prosecuting and punishing
an alleged adulterer under s. 497, but criminal proceedings were ordered to be
stayed till the divorce petition was disposed of (i$.

(p) Enai Beebe, (1805) 4 W. R. (Cr.) 25. ~

(q) Sheikh Alimuddin, (1900) 10 C. W. N. 982 ; Roma Sona, (1873) Rat, Unrep.
Or. C, 77.

(r) F. Boyce v. Kirk, A. X. K. (1928) Lah. 5p, *

SEC. 497 ] OFFENCES RELATING TO MARRIAGE 979

Procedure : — Non-cognizable-y Warrant— Bailable — Compoundable— Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Form of charge : — I ( name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of — , at — ,

committed adultery by having sexual intercourse with XY , the lawful wife oi v i4i)
whom you knew (or had reason to believe) her to be the wife of AB , without the
consent or connivance of the said XY, and that you thereby committed an offence
punishable under s. 497 of the Indian Pena! Code, and within my cognizance
(or the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

The prosecution must prove —

(1) that the accused had sexual intercourse with a woman ;

(2) who is the wife of another man ;

(3) that the accused at the time of committing the intercourse knew (or

had reason to believe) her to be the lawfully married wife of another
man ;

(4) that the husband of the woman in question did not consent to or connive

at such intercourse.

Direct fact of adultery need not be proved. Such fact is to be proved from
circumstances (s).

Complaint : — No Court shall take cognizance of an offence under s. 497 or
s. 498 of the Indian Penal Code, except upon a complaint made by the husband
of the woman or in his absence, made with the leave of the Court , by some person
who had the care of such woman on his behalf at the time when such offence was
committed :

Provided that where such husband is under the age of eighteen years, or is an
idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some
other person may, with the leave of the Court , make a complaint on his behalf

The words in italics have been added by the amending Code of Criminal
Procedure (Act XVIII of 1923). The section contemplates ‘leave of the Court
in the case of an absent husband and the proviso contemplates ‘ leave of the Court * in
case of minority or physical incapacity on the part of the husband to lodge a com-
plaint. Although it has been held that such leave can be implied (s J ), the
Calcutta High Court in Mahenda Lai Boses case (s 2 ) has held that proper com-
plaint by the father of the girl is after (s 1 ) 27 Cr. L. I. taking leave of the Court
before the filing of the complaint (s 1 ) (1932) 34 Cr. L. J. 29(h

A Full Bench decision of the Calcutta High Court has held as follows : “ If a
criminal charge of adultery is to be preferred, a formal complaint of that offence
must be instituted in the manner provided by law, and if it is not, s. 199 of the
Code of 1 898 will not have been satisfied. I may mention here that s. 238 of the new
Criminal Procedure Code leaves no doubt as to the course Jthe Court should
adopt in cases of the kind now before me ” (t). In a prosecution under s. 498,
the Allahabad High Court has held that the statement of the husband of a woman
as a witness in a proceeding under s. 366 may be treated as a complaint within the
meaning of s. 4, cl. (h) of the Cr. P. Code (u). Sir George Knox J. in Bhawani s
case (u) has not considered Chemons case (t) cited on behalf of the petitioner.
— — , * ■ — — ■ '

(s) Sita Devi v. Gopal Saran Narayan Singh, (1924) 9 P. L. 1. 397 : A. I. R.
(1928) Pat. 375.

(si) 27 Cr. L. J. 414 (Sind).

s2) Mohendra Lai Bose (1932) 34 Cr. L. J. 290.

(t) Chemon Garo, (1902) 2fi C. 41'5 (F. B.) at p. 416,

(u) Bhawani Dat, (1918) 38 A. 276, ,

980

THE INDIAN PENAL CODE

[CHAP. XX

The Madras High Court has laid down that where the husband . refuses to
charge an offender with house-trespass for committing adultery with his wife, the
Magistrate may not convict the accused on his own confession (v). The Judicial
Commissioners Court of Oudh has laid down that a complaint under s. 494 can
also be treated as a complaint under $. 498 within the meaning of s. 199 Cr. P.
Code, if the husband fails to prove additional facts required for s. 366 (w).

Prosecution does not abate with the death of the husband The
prosecution under this section does not necessarily abate with the death of the
husband (x). The Lahore High Court has held that the complaint of a husband
under s. 498 is not in the nature of a personal action and further a criminal prosecu-
tion does not abate merely on account of the death of the injured party (y).

Evidence : — The High Court of Calcutta held as early as 1873 : — “ In a case
of adultery, sexual intercourse must be proved and it is not necessary that there
should be direct evidence of an act of adultery, nor that the adulterer should know
whose wife the woman is, provided he knew that she was a married woman.** Mr.
Justice Markby, one of the Judges who sat in judgment over the case in which
the dicta of the Court above quoted was pronbunced, observed about the
quantum of evidence of sexual intercourse required : " I know of no law in this
country which requires any particular kind of proof of adultery or which requires
any different degree of proof in different cases. Difference in the proof required
of the same fact in different cases very often arises out of the circumstances of the
case. One can hardly presume sexual intercourse in a charge of rape, because of
the hypothesis — one of the parties is doing her best to prevent the act. The
hypothesis in adultery is precisely the reverse and the evidence differs accordingly.
I know of no authority for saying that the evidence of sexual intercourse must be
stronger on a charge of adultery than in a suit for divorce. The best proof available
must always be procured, but in both cases, evidence of opportunities sought for
and obtained and of familiarities which point to an inference of guilt are sufficient
to establish the fact of sexual intercourse. In order to constitute an offence under
the Indian Penal Code, it is necessary that the prisoner should have known or should

have had reason to believe that she was a married woman . I cannot

accede to the argument that it is necessary that the adulterer should know whose
wife the woman is.** Mr. Justice Birch in concurring with the judgment of Markby,
J., quoted the following extract from Lord Stowell’s remarks in Case of Louden v.
Louden , Haggard’s Consistory Reports : “ It* is a fundamental rule that it is not
necessary to prove the direct act of adultery ; if it were otherwise, there is not one
case in a hundred in which the proof would be attainable ; it is very rarely indeed
that parties are apprised in the direct act of adultery. In every case almost the
fact is inferred from circumstances that lead to it by fair inference as a necessary
conclusion and unless this was the case and unless this was solicited, no protection
whatever could be given to material rights ** (z). Where the only evidence was a
letter written by the complainant’s wife to the accused, which was not proved to
have been received nor read by the accused, held that conviction on such evidence
must be set aside, (a).

(I) Suggest by cross-examination that the accused had not committed sexual
intercourse with the woman in question.

Show that the prosecution has failed to adduce evidence necessary to establish
sexual intercourse.

(V) (1870) 5 M. H. C. R. 0.

(w) Brahma Dat, (1921) 22 Cr, L. J. 724 : 64 I. C, 134.

(x) (1868) 4 M. H. C. R. 4pp. 66.

(y) Manj Din , (1922) 4 L. 7.

(z) Madhab Chander Giri Mokant, (1873) 21 W. R. (Cs*) 13.
(a) /?. Dorice v. 0. 11 Shamislaw, 4* J. R. (1928) Cal. 248,

SEC. 497 ]

OFFENCES RELATING TO MARRIAGE

98l

(2) Establish by cross-examination or by adducing evidence that the woman
in question is not the lawfully married wife of the complainant or the person with
whose wife the accused is alleged to have committed intercourse.

This is the strongest plea on behalf of the accused.

The prosecution must adduce — strict proof of the marriage of the woman in
question (b).

Reviewing the provisions of s. 50 of the Indian Evidence Act with reference
to the charge of adultery, a Full Bench of the Calcutta High Court laid down
that the marriage of a woman is an essential element of the crime charged, as the
fact of the illicit intercourse and the provisions of the Evidence Act (s. 50) seem
to point out very plainly that where marriage is an ingredient in the offence, as in
bigany, adultery, and the enticing of a married woman, the fact of marriage must
be strictly proved (c). Admission on the part of the accused that the woman was
the wife of the complainant will not avail the prosecution it they fail to prove
strictly the marriage between the complainant and the woman whose chastity has
been violated (d).

The question of validity or otherwise of a marriage affecting the status of the
parties arose in a case of adultery before the Calcutta High Court. In this case,
a Mahomedan married in nika form a woman who was the uterine sister of his
wife in the wife’s life time and also within four months and ten days of the death
of the woman’s former husband. In setting aside the conviction of the accused
charged with adultery with such a wife on the complaint of the so-called husband,
the High Court remarked : “ The proof of a de facto marriage was not sufficient
for a conviction under Ss. 497 and 498. The question is vital to the
commission of an offence relating to marriage under Chapter XX of the Penal
Code ” (e). The Bombay High Court also has held in a case of adultery : " It
was necessary definitely to prove the marriage. Where the man and woman spoke
of each other as wife and husband and some of those acquainted with them spoke
of them as man and wife, it proves only the conduct of the parties which is not a
sufficient basis to prove the marriage in an adultery case” (0.

The defence is entitled to an acquittal if the marriage of the woman in question
with the person aggrieved is not proved.

(3) Suggest by cross-examination or by adducing evidence that the accused
did not know (or had no reason to believe) such woman to be the lawfully married
wife of another man.

It is not essential for the prosecution to prove that the accused knew or had
reason to believe her to be the married wife of the complainant. If the accused
knew her to be a married woman, the accused will be guilty, provided the other
points are proved by the prosecution.

(4) Suggest by cross-examination or adducing evidence that the husband
consented to or connived at such intercourse.

Although the wife cannot be punished as an abettor, she can be cited as a
witness by a person who is accused of having had sexual intercourse with her.
She is not, by reason of being an accomplice, disqualified from giving evidence
either for or against a prisoner (g).

(b) Smith . (1806) 4 W. R. (Cr.) 31.

(c) PUambar Singh , (1879) 5 C. 600 (F. B.) ; Kallu f (1883) 6 A. 233, followed in
Phikku, A. I. R. (1926) Oudli. 701.

(d) Ganga Patra, A. R. (1928) Pat. 481.

(e) Danesh Sheikh v. Tafiy Mandat , (1902) 7 C. W. N. 143.

(!) Bhagu Dhondi, (1914) 17 Bom. L. R. 76 : 16 Cr. L. J. 213 : 27 I. C. 837.

982

THE INDIAN PENAL CODE

[ CHAP, XX

Adultery : — Although the section says that it would be adultery to commit
sexual intercourse with the wife of another, such sexual intercourse not amounting
to the offence of rape, in an earlier case, the Calcutta High Court has held, should
require same proof as required in the case of rape (h).

Here the consent of the woman is implied but in rape there is no such consent.

Offence not a continuing one ' The offence of adultery is not a continuing
offence. Every act of sexual intercourse amounts to an offence ot adultery (x).
The accused person will be liable to a second conviction and punishment for the
fresh act notwithstanding that the woman has returned to her former husband
after the conviction of the paramour (i).

Can wife be punished as an abettor ? The Authors of the Code observe :
“ There is yet another consideration which we cannot wholly leave out of sight.
Though we well know that the dearest interests of the human race are closely
connected with the chastity of women, and the sacredness of the nuptial con-
tract, we cannot but feel that there are some peculiarities in the state of society
in this country which may well lead a human man to pause before he determines
to punish the infidelity of wives. The condition of the woman of this country
is unhappily very different from that of the women of England and France. They
are married v/hile still children ; they are often neglected for other wives while
still young. They share the attention of a husband with several rivals. To make
laws tor punishing the inconsistency of the wife, while the law admits the pri-
vilege of the husband to fill his zenana with women, is a course which we are most
reluctant to adopt. We are not so visionary as to think of attacking by law an
evil so deeply rooted in the manners of the people of this country as polygamy.
We leave it to the slow, but we trust the certain operation of education and of time.
But while it exists, while it continues to produce its never-failing effects on the
happiness and respectability of women, we are not inclined to 'throw into a scale
already too much depressed, the additional weight of the penal law. We have given
the reasons which lead us to believe that ary enactment on this subject would, be
nugatory. And we are inclined to think that if not nugatory, it would be oppressive.
It would strengthen hands already too strong. It would weaken a class already
too weak. It will be time enough to guard the matrimonial contract by penal
sections when that contract becomes just reaconable and mutually beneficial ” (j).

Without the consent or connivance of that man: — Connivance is a
passive consent. “Connivance is the willing consent to a conjugal offence (in
the sense of being an accessory before the fact), or a culpable acquiescence in a course
of conduct reasonably likely to lead to the offence being committed ” (k).

If a husband willingly abstains from taking any steps to prevent an adulterous
intercourse, which, from what passes before his eyes, he cannot but believe or
reasonably suspect, is likely to occur, is guilty of connivance (1).

“ To find a verdict of connivance, you must be satisfied from the facts es-
tablished in evidence that the husband so connived at the wife’s adultery as to
give a willing consent to it. Was he, or was he not, an accessory before the fact?
Mere negligence, mere inattention, mere dullness of apprehension, mere indifference

(g) Sheikh Bechoo , (1806) 6 W. R. (Cr.) 92. •

(h) Madhab Chunder Giri M oh ant , (1873) 21 W. R. (Cr.) 13.

(i) Sankar Tulsiram v. Kundlik Any aba, (1928) 53 B. 09: 30 Bom. L. R. 1435,
fallowing Ernaji Rat. Unrep. Cr. Ca. 1 50.

(j) NoteQ.

(k) Stroud’s judicial Dictionary, 2nd Ed. Vol. lo. 374.

(l) Gipps v. Gipps, (1864) 11 H. L. C. 1.

SEC. 498 ]

OFFENCES RELATING TO MARRIAGE

983

will not suffice ; there must be an intention ^on his part that she should commit
adultery. II such a state of things existed as would, in the apprehension of reason-
able men, result in the wife’s adultery — whether that state of things was produced
by the connivance of the husband, or independent of it — and if the husband,
intending that the result of adultery should take place, did net interfere when he
might have done so to protect his own honour, he was guilty of connivance ” (m).

498 . Whoever takes or entices away any woman who is

Enticing or taking anc ^ w ^ om fie knows or has reason to believe
away or detaining with to be the wife of any other man, from that
criminal intent a mar- man> or from any person having the care of
no woman. her on behalf of that man, with intent that

she may have illicit intercourse with any person, or conceals or
detains with that intent any such woman, shall be punished with
imprisonment of either description for a term which may extend
to two years, or with fine, or with both.

This section punishes taking or enticing away or detaining a married woman
with criminal intent.

Scope: — This section, as has been observed, is composed of two parts — (1)
the first part deals with taking or enticing away any woman who is and whom the
accused knows or had reason to believe to be the wife of any other man from that
man, or from any person having the care of her on behalf of that man.

(2) The second part deals with concealing or detaining any woman who is and
whom the accused knows or had reason to believe to be the wife of any other man
from that man, or from any person having the care of her on behalf of that man.

Procedure : — Not cognizable — Warrant — Not bailable — Compoundable —
Triable by Presidency Magistrate or Magistrate of the first or second class.

Complaint : — No Court shall take cognizance of an offence under this sec-
tion except upon a complaint made by the husband of the woman or in his absence
made with the leave of the Court , by some person who had the care of such woman
on his behalf at the time when such offence was committed :

Provided that where such husband is under the age of eighteen years or is an idiot
or lunatic or is from sickness or infirmity unable to make a complaint , some other
person may , with the leave of the Court , make a complaint on his behalf (n). If the
provisions of s. 199, Cr. P. Code, have not been complied with the conviction
cannot stand (o).

The Allahabad High Court has held that the statement made by the husband
as a witness falls within the definition of complaint as defined in s. 4 (h) of the Code
of Criminal Procedure (p). But this view cannot be accepted as the cases re-
ferred to in the judgment of Sir George Knox are cases where the husbands
were the complainants and besides the learned Judge had not considered the
cases relied on behalf of the petitioner.

Where the father of a married girl with whom she was residing filed a
complaint under this section alleging that he had to complain as the husband
of the girl was ill at the tone when the complaint was lodged, the husband

(m) Allen v Allen , (i859) 30 L. J. (Mat.) 2.

(n) S. 199 of the amended Code of Criminal Procedure of 1923.

(o) In re Aruncharan Chetty, (1923) 45 M. L. J. 543 : (1923) M. W. N. 870.

(p) T Bhawani Dutt , (1916) 38 A. 276 : 14 A. L. J. 233 : 17 Cr. L. J. 72 ; 32

I. C. 664. *

984

THE INDIAN PENAL CODE

[CHAP. XX

was really ill, nor were there any circumstances which justified the lodging of the
complaint by the father, C. C, Ghosh and Pankridge J.J. held that the
complaint being in contravention of the terms of s. 199 Cr. P. Code was not
entertainable, the conviction was set aside but the learned Judges made in clear
that nothing that their lordships had stated would debar the husband. or the
father from instituting proper complaint against the accused after taking the
leave of the Court under s. 199 (pi).

‘To support a charge under this section % it must be proved*: — (1) that the woman
is married, and that it is known to the offender, or that he has reason to believe it ;

(2) that she has been taken or enticed away from her husband or from her
relatives or friends with whom she may be living in her husband’s absence ;

(3) that the intention of the taker is that the woman may have illicit sexual
intercourse with himself or some other person.

“Persons who conceal or detain a woman who has been so taken away, know-
ing the circumstances and having the guilty intention above mentioned, are also
punishable under the present section. It is this intention which is the main ingredi-
ent in the offence. A person who, being a relative of a married woman, should
take her away from her husbandV house or should conceal or detain her from her
husband on account of the misconduct or cruelty of her husband or for any other
cause, but without any other intention that she should have illicit intercourse with
any person, commits no offence " (q).

The prosecution must adduce strict proof of marriage of the woman in
question (r).

See commentary on the last section.

It has been held by the Calcutta High Court in a case arising under Ss. 497
and 498, I. P. C., that a marriage between a Kayastha and a Dome is a valid mar-
riage (s). It is submitted with great respect to the learned Judges that this decision
is wrong. Although Pan ton, J., could not find any authority relating to a marriage
between a Kayastha and a Dome community, the learned Judge based his decision
on this that the Bengali Kayasthas are treated as Sudras {vide 48 C. 926 and 20
C. W. N. 901). The dome is a Sudra ; therefore marriage between a Kayastha
and a Dome is valid. The fearned Judge’s fallacy seems to be this that, because both
parties are Sudras, Hindu law of marriage does sanction a valid marriage between
different classes of Sudras.

Sentence Where in a case under this section it appears that the husband
and wife have not been on good terms and that the husband did not care much about
the wife and took no action in respect of the offence until several months after the
the date of its commission, a heavy sentence is not called for (t).

Distinction between this section and s. 497 1 — The offence under this
section like that of s. 497 is an offence against the husband. The expression ‘whom
he knows or has reason to believe to be the wife of another man' is common to both
the sections. The consent of the wife is perfectly immaterial in both the sections.
The wife cannot be punished as an abetter under s. 497.

(pi) Mahetfdra Lai Bose v. Gopal Ghandra Dey (1932) 34 Cr. L. J. 290 A. I. R.
(1933) cal. 144 (1).

(q) Morgan and Macphcrson, ‘ Penal Code', p. 439.

(r) Sobrati v. Jungli , (1898) 2 C. W. N. 245 ; Pitambur Singh , (1879) 5 C. 566
(F. B.) ;Kallu, (1882) 5 A. 233; Dal Singh, (1897) 20 A. 166 ; Subbarayan, (1888) 9
M. 9 ; Nazir Khan, (1913) 30 A. 1 : 11 A. L. J. 994 : 15 Cr. L. ). 78 ; Buddha, (1920)
42 A. 401 ; Phikhu , A. I. R. (1926) Oudh 701.

(s) Bhola Nath Mitlcr, (1924) 51 C. 488 : 28 C. W. N. 323.

(t) Gahra, (1928) 26 L. R. D. 429 * 27 Cr. L. J. 192 : A. I. R. (1926) Lab. 176.

OFFENCES RELATING TO MARRIAGE

986

SEC. 498 ]

Where a man has been convicted of enticing away a woman under s. 498 of the
Indian Penal Code, the Madras High Court (Davies and Benson J.J.,) held:
“Whether a woman could be convicted of abetting ‘the taking away’ of herself within

the meaning of s. 498, Indian Penal Code, we need not nowjdecide.

but we are of opinion that when a man is convicted, as in the case of * enticing away
a woman under s. 498, Indian Penal Code, the woman cannot be guilty as an
abettor" (u).

Ss. 366 and 498 In a case where the complainant charged the accused only
under s. 366 with respect to his young wife, on a reference to the Calcutta High
Court, on the question whether in such a case s. 238, Cr. P. C. precluded a con-
viction under s. 498, when there had been no complaint under thij section, the
High Court held : “ When the husband is the complainant and brings bis complaint
under s. 366 a conviction under s. 498 may properly be had, if the evidence be such
as to justify a conviction for the minor offence, yet insufficient for a graver offence.

The intention of the law is to prevent Magistrates inquiring of

their own motion into cases connected with marriage unless the husband or other
person authorised moves them to do so. We think it cannot be held that a con-
viction such as was held in the present case was contrary to the intention of the
law in this respect M (v). But where the complaint under s. 498 was dismissed
under s. 203 Cr. P. Code and a further inquiry was directed but before the order
reached the Sub-Divisional Magistrate the inquiry preliminary to conviction was
almost complete, the Calcutta High Court held that the Sessions Judge could not
add charges under Ss. 497 and 498 as there was no complaint as required under
s. 199 Cr. P. Code and no commitant regarding charges under Ss. 497 and
498 (vl).

This section provides for less severe punishment than the preceding section
where actual sexual intercourse not amounting to rape is committed ; here the taking
or enticing (or concealing or detaining) is ‘with intent that she may have illicit
intercourse with any person.’

Form of charge : — 1 ( name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of , at — ,

took away (or enticed away or concealed or detained) a certain woman, AB,
the wife of (husband 9 s name) when you knew or had reason to believe to be the
wife of another man, namely, the said (husbands name) from the said

(husband's name) or from one who had the care of the said A B on

behalf of the said husband with the intent that the said A B might have illicit
intercourse with some person, and that you thereby committed an offence under
s. 498 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Charge: — Where the accused was tried under Ss. 363 and 366 and after
the defence evidence had been recorded a charge under this section was added
notwithstanding the objection by the defence counsel, held * that the procedure
adopted was irregular and prejudicial to the accused (w).

Abetment The wife cannot be punished as an abettor (x).

Finding finding exactly in the words of s. 498 though not actually
illegal when it is doubtful yhich of the several offences has been committed, is

(u) In re Balambal , (1902) 26 M. 463.

(v) Jatra Sheikh v. Reasat Sheikh , (1892) 20 C. 483.

(vi) 63 C. L. J. 346-32 C. L. J. 1145.

.(w) I$ap Mahomed , (1906) 31 B. 218 : 9 Bom. L. R. 148.
(x) In re Balambal, (1902) 26 M. 4^3.

986

THE INDIAN PENAL CODE [CHAP. XX

a finding which ought not to be resorted to if it can be avoided and it can be
determined under which part of the section the prisoner is guilty (y).

Proof of marriage s — It is usual for the defence to challenge the validity
of the marriage. The onus is on the prosecution to prove that the woman in
question is a married woman.

The proviso to s. 50 of the Indian Evidence Act requires strict proof of mar-
riage in prosecutions under this section and Ss. 494 and 497. supra .

In case# under s. 498 strict proof of marriage is necessary. Thus in a case
under s. 498, where the evidence of marriage was proved orally both by the husband
and the wife*as also by another witness, but the fact being found that the husband
was a minor at the time, the Calcutta High Court (Hill and Stevens, J.J.,) observed :

Having regard to the view consistently taken by this Court, that in prosecutions
such as the present, strict proof of marriage is necessary, we are not prepared to

hold that what has been established in this case comes up to that standard

It is essential according to Mahomedan law that the husband should be capable
of giving a valid consent or should be represented by some one who can lawfully

consent on his behalf We think that the evidence of marriage in

this case is insufficient for the purposes of the prosecution and we accordingly set
aside the conviction " (z). Where the only evidence of marriage was that the com-
plainant put Vermillion on the forehead of the woman and that there was a feast of
the caste people but there was no evidence that any mantra was recited or whether
there was any priest who officiated and solemnised the marriage, Surhwardy J.,
held that although the complainant belonged to a low caste Hindu sect the formality
of a legal and valid marriage was not gone through and the fact that the woman
was living with the complainant for a long time and bore children was not evi-
dence of a valid marriage, and acquitted the accused (a).

Where the evidence of marriage proceeded from the complainant, his wife and
his mother-in-law, the Madras High Court (Muttu Swami Ayyar and Hutchins,
J.J.,) held that the marriage was sufficiently proved to justify a conviction, observing :

“ The Calcutta case of Pitambar Sing (b) has been followed by Straight,
J., in Kallu , (5 All. 233), but he observed”: “if the learned Judges meant to decide
that a husband or wife is precluded from proving his or her marriage, we must with
great deference to their opinion, express our dissent. ... In this country there is no
statutory marriage law for natives and the validity of any particular marriage depends
chiefly on the usages of the caste to which the party belongs M (c). The Allahabad
High Court has held, following the above decisions that the fact that the legality
of the marriage are material elements in a case under this section, they must be proved
as strictly as any other material facts, as for instance, the enticing away of a woman
with the intention mentioned in the section (d). “ The Court should require some
better evidence of the marriage than the mere statement of the complainant and the
woman " (d). Johnstone, J., sitting singly, held in Vir Singh's case (f) that although
there might arise a presumption that by a cohabitation for a period of 13 years
marriage took place, but person cannot be convicted on such presumption. Marriage
has got to be strictly proved.

(y) Allah Din , 28 Cr. L. J. 419: A. I. R. (1927) Lah. 432.

(z) Sobrati v. Jungli, (1898) 2 C. W. N. 245.

(a) Prahlad Berman , (1929) 34 C. W. N. 227,

(b) Pitambar Singh , (1879) 5 C, 566 (F. B.)

(c) Subbarayan, (1885) 9 M. 9.

(d) Nazir Khan, (1913) 36 A. 1.

(e) Buddhu, (1920) 42 A. 401, following Dal Singh , (1867) 20 A. 166, see Santok ,
(1898) A. W. N. 186; Bechar , 5 S. L. R. 270 : 13 Cr * L. J. 541 : 15 I. C 813*

(f) (1928) 30 P. L. R. 643 ; 30 Cr. IS j. 1051 ; A. I. R. (1930) Lah. 23o!

SEC. 498 ] OFFENCES RELATING TO MARRIAGE

987

4 takes or entices away any woman who is and whom he knows or
has reason to believe to be the wife of any man 9 The Allahabad High
Court has held that the words ‘ such woman * in s. 498 do not mean such woman
so enticed as aforesaid but do mean 1 such woman he knows or has reason to believe
to be the wife of any other man*, and the detention of such a woman with the intent
therein provided is one of the offences comprehended in the section (g). "In a case
under this section for detention, the Lahore High Court has held that to constitute
an offence under s. 498, it is not necessary that the woman should be physically
restrained or that she should be actually prevented from the exercise of her free will
or action. The gravamen of the offence consists, as held in 4 M. H. C. R. 30 : 1 Weir
571, in depriving the husband of his proper control over his wife for the purpose
as specified in s. 498 and a detention occasioning such deprivation may be brought
about by means other than mere physical constraint, e.g. t even by the influence of
allurements and persuation ** (h). The Bombay High Court has held that the
offence contemplated by this section is complete if there is satisfactory evidence to
show that the accused went away with the woman in such a manner as to deprive
her husband of his control over his wife, — the fact that the woman accompanied the
accused of her own free will is no excuse, the offence is still committed (i). In a
case where a procuress was convicted of abducting a woman of mature age and
free agent, the Calcutta High Court held upon facts that the woman went away of
her own free will, and she was certainly neither forced nor seduced to illicit inter-
course, etc., and therefore the conviction for abduction could not be sustained,
but observed that there was sufficient evidence to convict her of ‘ enticing ’ under
s. 498 ; for had not the procuress interfered, the woman would have remained
quietly in her husband’s house (j). To sustain a conviction under this
section, it must be proved that the accused knew that the woman was married, and
the mere presumption that he must have known this is not sufficient (k). The
Sind Judicial Commissioners held : “ Two essential ingredients of an offence

under s. 498, Indian Penal Code, are that the woman enticed away is the wife of the
complainant and the fact of the marriage is known to the accused ’* (1).

According to the Punjab Chief Court, a remarried Hindu wodow of the clan
of Rathi Rajputs of Kangra district is a validly married wife and a conviction under
this section for enticing away such wife was upheld (m). The Punjab Chief Court
held that as Khaikis are low class Stidras, there appears to be no prohibition of
divorcing a wife by a written deed and therefore a remarriage of such a wife is a
legal and valid marriage (r>\

In the view of the Punjab Chief Court, a long discarded married wife recognized
by her husband to be a free agent cannot be said to be enticed away within the
meaning of this section (o). The mere statement of the complainant that the
woman is his wife is not sufficient evidence of marriage (p).

(g) Niader , (1887) 10 A. 580, disapproving of Tika Singh, f 1881) 4 A. 251.

(h) Rati Ram, (1921) 23 Cr. L. J. 730 : 69 I. C. 458 : A. I. R. (1923) Lali. 45.

(i) Jan Mahomed , (1902) 4 Bom. L. R. 435,

(j) Svimotee Poddee, (1864) 1 W. R. (Cr.) 45.

(k) Bati Ram Keot v. Bkanda Ram Keot, (1921) 22 Cr. L. J. 412 : 61 I. C. 652

(Cal.).

(l) Bechar, (1910) 5 S. L. R. 270 : 13 Cr. L. J. 541 : 15 I. C. 813.

(m) GobinUu, (1919) P. R* No. 10 of 1919 : 20 Cr. L. J. 554 : 15 I. C. 842.

(n) Bholar , (1914) P. L. R. No. 181 of 1914 : P. W. R. No. 31 of 1914 (Cr.).

(o) Pahlwan, (1915) P. L. R. No. 129 of 1915 : P. W. R. No. 5 of 1915 (Cr.) : 16
Cr. L. J. 216 : 27 I. C. 840.

(p) Backar, (1911) 5 S.-L. R. 270 : 13 Cr. L. J. 541.

(q$ Madan Gopal, (1911) 84 A. 589 : 10 A. L. J. 82 : 13 Cr. L. J. 705 : 16 I. C.

513 . *

088

TfcE INDIAN PENAL CODE

[CHAP. XX

The Allahabad High Court held that a girl born of a Brahmin father and a
Bania mistress can be legally and validly married to a well-born Bania and, when
such a girl is enticed, conviction under this section was upheld (q). In order to
sustain a conviction under this section there must be evidence that the accused
knew that the woman was the wife of another man ; mere presumption that he
must have known this is not sufficient fr).

‘from that man or from any person having the care of her on behalf
of that man’. — The Calcutta High Court observed in a case of enticement : “We
think it quite clear that wife living in her husband’s house, or in a house hired
by him for her occupation and at his expense is, during his temporary absence,
Jiving under his protection so as to bring the case within the meaning of s. 498
provided of course that (to make the defendant liable) he knew or had reason to
know that she was the wife of the man from whose protection he took her or on
whose behalf the person from whom he took her had charge of her. To hold
otherwise would be to declare the worst cases of seduction not punishable under the
Penal Code ’’ (s). The Madras High Court held : “ This section and the preceding
s. 497 were evidently intended for the protection of husbands who alone can
institute proceedings for offences under them. It is the taking or enticing of the
wife from the husband or the person having care of her on behalf of her husband
for the illicit purpose that constitutes an offence. If, whilst the wife is livng
with her husband, a man knowingly goes away with her in such a way as to deprive
the husband of his control over her with intent stated in the section, that, I think
is a taking from the husband within the meaning of the section. The wife’s
complicity in the transaction is no more material on a charge under this section
than it is on a charge of adultery” (t). The Allahabad High Court seems to hold
that an offence under this section is committed by a person who entices away a
married woman from her husband s house with intent that he may dispose of her
in marriage to some one else (u). It has been held that in order to sustain a convic-
tion under this section, it must be established that the woman had been enticed away
or taken away and she was detained for the purpose of illicit intercourse. If the
woman is seen outside the house of the accused, there is clearly -no concealment.
Therefore, when there was neither detention nor concealment, and it had been
found that the woman had not been enticed away, the accused could not be con-
victed under this section (v). tl

‘ conceals or detains 9 : — Where it has been found as a matter of fact that
the woman was living as the mistress of the accused in a house provided by the
latter, the Punjab Chief Court held that the fact of the accused’s providing a
house for her is already an inducement to her to withhold herself from her hus-
band. It is an active conduct on his part which is sufficient to bring him within
this section (w).

Where the woman is found to be living with the accused of her own free-
will and stated that she had no desire to return to her husband, the Allahabad
High Court held that the accused was not guilty under this section for ‘ detaining*
her (x).

4 with intent that she may have illicit intercourse with any person 9

This clause governs both 4 taking or enticing away ’ and * concealing or detaining*.

(r) Batiram v. Bahanda Ram , 22 Cr. L. J. 412 : 61 I. C. 652.

(s) MuttyKhan v. Mundloo , (1866) 5 W. R. (Cr.)«50.

(t) Kumarasami , (1865) 2 M. H. C. R. 331.

(u) Naurang, (1915) 13 A. L. J. 251 : 16 Cr. L. J. 316 : 28 I. C. 651.

(v) Deonandati , (1919) 21 Cr. L. J. 384 : 55 I. C. 863 (AH.).

(w) Bans Hal, (1913) P. L. R. No. 319 of 1913 : P..W. R. No. 36 oi 1913 (Cr.):

14 Cr. L. J. 595 : 21 I. C. 467. • ' '

(x) A. I. R. 1928 All. 194 (1) «

SBC. 498

989

OF DEFAMATION

Intention is an essential ingredient of the offence.

In cases of offences against marriage, the Calcutta High Court held that where
the husband had long delayed the prosecution of the alleged adulterer, this omission
of his to take any steps against the accused, is to be taken as a condonement of
the crime to warrant the setting-aside of the conviction of the accused (y). The
Allahabad High Court has held that where a person entices away a married woman
from her husband’s house, with intent that he may dispose of her in marriage to
some one else, he commits an offence under this section (z). Where the com-
plaint did not make a specific allegation of sexual intercourse against the wife,
but contained in general terms suggestion of sexual intent with the super added
and specific charge of theft, the Madras High Court held that under the circum-
stances of the case the conviction of the accused under this section should be up-
held (a).

Connivance of husband : — To constitute connivance, mere negligence or
inactivity will not suffice, but the fact established must lead to a direct and neces-
sary inference that adultery would be committed with the person charged (b).

CHAPTER XXL

Of Defamation.

44 The offence of defamation, as it is defined in this Code, consists in the injury
offered to reputation not in any breach of the peace or other consequence that may
result from it. The essence of the offence consists in its tendency to cause that
description of pain, which is felt by a person who knows himself to be the object of
the unfavourable sentiments of his fellow creatures, and those inconveniences to
which a person who is the object of such unfavourable sentiments is exposed.

44 It will be the duty of the Judgg in the trial of such cases not to decide the
question whether an imputation is or is not defamatory by reference to any parti-
cular standard, however correct, of honour, of morality or of taste, but to extend
an impartial protection to opinions which he regards as erroneous and to findings
with which he has no sympathy. India is inhabited by races which differ widely
from each other in manners, tastes and religious opinions. Practices which are
regarded as innocent by one large portion of society excite the horror of another
large portion. A Hindoo would be driven to despair if he knew that he was be-
lieved by persons of his own race to have done something which a Christian or a
Mussalman would consider as indifferent or as laudable. Where such diversities
of opinion exist, that part of the law which is intended to preventfain arising from
opinion ought to be sufficiently flexible to suit those diversities.

44 No distinction is made between written and spoken defamation. The offence
committed whether the words are spoken, written, printed, or engraved, or in

(y) Jasimuddin Sheikh vflchohak Mistri, (1897) 1 C. W. N. 498.

(z) Nattrang, (1915) 13 A. L. J. 251 : 16 Cr. L. J. 315 : 28 I. C. 661.

(a) In re Pedda Anjini-Gadu, (1921) M. W. N. 514 : 22 Cr. L. J. 762 : A. I. R.
(1922) Mad. 353.

(b) Munier, (1925) 24 A. L. J. 155 : 27 Cr. L. J. 161 : A. I. R. (1926) All. 189
following Gips v. Gips, (1864) 1TH. L. I. (27).

THE INDIAN PENAL CODE

990

[ CHAP. XXI

whatever manner the words, signs or visible representations conveying the impu-
tation are expressed ” (c).

499. Whoever by words either spoken or intended to be

Defamation. or b y si * ns ° r ,ty visibIe representations,

makes or publishes any imputation
concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation
of such person, is said, except in the cases hereinafter excepted, to
defame that person.

Explanation 1. — It may amount to defamation to impute
anything to 'a deceased person, if the imputation would harm the
reputation of that person if living, and is intended to be hurtful
to the feelings of his family or other near relatives.

Explanation 2. — It may amount to defamation to make an
imputation concerning a company or an association or collection
of persons as such.

Explanation 3. — An imputation in the form of an alternative
or expressed ironically, may amount to defamation.

Explanation 4 . — No imputation js said to harm a person s
reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his
caste or of his calling, or lowers the credit of that person, or causes
it to be believed that the body of that person is in a loathsome
state, or in a state generally considered as disgraceful.

Illustrations .

(a) A says — “ Z is an honest man ; he never stole B’s watch ” : intending to
cause it to be believed that Z did steal B p s watch. This is defamation, unless it fall
within one of the exceptions.

(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be
believed that Z stole B's watch. This is defamation, unless it fall within one of the
exceptions.

(i o ) A draws a picture of Z running away with B’s watch, intending it to be
believed that Z stole B’s watch. This is defamation, unless it fall within one of the
exceptions.

First Exception. — It is not defamation to impute anything
which is true concerning any person, if it be
which public good re- for the public good that the imputation should
** made or be made or published. Whether or not it

puDitsnea. * c 1 11 * i* * # *

is tor the public good is a question of fact.

(c) Morgan and Macpherson, * Penal Code ' pp.*439, 440,

SEC. 499 ]

OF DEFAMATION

991

Second Exception. — It is not defamation to express in good
_ . . , faith any opinion whatever respecting the

public servants duCt ° conduct of a public servant in the discharge
of his public functions, or respecting his
character, so far as his character appears in that conduct, and no
further.

Third Exception. — It is not defamation to express in good
faith any opinion whatever respecting the

touching* °any ^ public cond 4 ct of an y P ers< ? n touching any public
question. question, and respecting his character, so far

as his character appears in that conduct, and

no further.

Illustration.

It is not defamation in A to express in good faith any opinion whatever respecting
Z's conduct in petitioning Government on a public question, in signing a requisition
for a meeting on a public question, in presiding or attending at such meeting, in forming
or joining any society which invites the public support, in voting or canvassing for
a particular candidate for any situation in the efficient discharge of the duties of
which the public is interested.

Fourth Exception. — It is not defamation to publish a sub-
stantially true report of the proceedings
of of a Court of Justice, or of the result of any

such proceedings.

Explanation. — A Justice of the Peace or other officer holding
an enquiry in open Court preliminary to a trial in a Court of
Justice, is a Court within the meaning of the above section.

Fifth Exception— It is not defamation to express in good
.. .. , . . , , faith any opinion whatever respecting the

in court or conduct merits or any case, civil or criminal, which
of witnesses and others has been decided by a Court of Justice, or

concerned. .• .1 j . r

respecting the conduct 01 any person as a
party, witness or agent in any such case, or respecting the character
of such person, as far as his character appears in that conduct,
and no further.

Illustrations .

(a) A says — " I think Z’s evidence on that trial is so contradictory that he must
be stupid or dishonest. " A is within this exception if he says this in good faith,
inasmuch as the opinion which he expresses respects Z’s character as it appears in
Z's conduct as a witness, andjno further.

(b) But if A says — “ I do not believe what Z asserted at that trial because I

know him to be a man without veracity, " A is not within this exception, inasmuch
as the opinion which he expresses of Z's character, is an opinion not founded on Z's
conduct as a witness. •

992

THE INDIAN PENAL CODE

[CHAP. XXI

Sixth Exception .— It is not defamation to express in good
faith any opinion respecting the merits of
f ° f p ” bhc per any performance which its author has sub-
mitted to the judgment of the public, or
respecting the character of the author so far as his character
appears in such performance, and no further.

Explanation . — A performance may be submitted to the judg-
ment of the public expressly or by acts on the part of the author
which imply such submission to the judgment of the public.

Illustrations.

(a) A person who publishes a book, submits that book to the judgment of the
public.

(b) A person who makes a speech in public, submits that speech to the judgment
of the public.

(c) An actor or singer who appears on a public stage, submits his acting or
singing to the judgment of the public.

(d) A says of a book published by Z — " Z's book is foolish ; Z must be a weak
man. Z's book is indecent ; Z must be a man of impure mind. ” A is within this
exception, if he says this in good faith, inasmuch as the opinion which he expresses
of Z respects Z's character only so far as it appears in Z's book, and no further.

(e) But if A says — '* I am not surprised that Z's book is foolish and indecent, for
he is a weak man and a libertine. " A is not within this exception, inasmuch as the
opinion which he expresses of Z's character is an opinion not founded on Z's book.

Seventh Exception . — It is not defamation in a person having
„ „ , . over another any authority, either conferred

good faith by person by law or arising out or a lawful contract
having lawful authority ma de with that Other, to pass in good faith
overano *ei. any censure on the conduct of that other in

matters to which such lawful authority relates.

Illustration .

A judge censuring in good faith the conduct of a witness, or of an officer of the
Court ; a head of a department censuring in good faith those who are under his
orders ; a parent censuring in good faith a child in the presence of other children ;
a schoolmaster, whose authority is derived from a parent, censuring in good faith a
pupil in the presence of other pupils ; a master censuring a servant in good faith for
remissness in service ; a banker censuring in good faith the cashier of his bank for
the conduct of such cashier as such cashier — are within this exception.

Eighth Exception— It is not defamation to prefer in good
Accusation preferred f«th an accusation afcainst any 'person to
in good faith to autho- any of those who have lawful authority over
nred person. that person with respect to the subject-

matter of accusation, .

SEC. 499 ]

OF DEFAMATION

993

Illustration .

If A in good faith accuse Z before a Magistrate; if A in good faith complains
of the conduct of Z t a servant, to Z’s master ; if A in good faith complains of the
conduct of Z t a child, to Z’s father — A is within this exception.

Ninth Exception . — It is not
putation on

defamation to make an im-
the character of another.

Imputation made in - ...... . . , , .

good faith by person for provided that the imputation be made m good

protection of his or f a fth for the protection of the interest of the
person making it, or or any other person,
or for the public good.

Illustrations.

(а) A, a shop-keeper, says to D t who manages his business : “ Sell nothing toZ
unless he pays you ready money, for I have no opinion of his honesty. ” A is within
the exception, if he has made this imputation on Z in good faith for the protection
of his own interests.

(б) A, a Magistrate, in making a report to his superior officer, casts an imputation
on the character of Z. Here, if the imputation is made in good faith, and for the
public good, A is within the exception.

Tenth Exception . — It is not defamation to convey a caution.
Caution intended for jn good faith, to one person against another,
conveyed 6 or° 'for public provided that such caution be intended for
good. the good of the person to whom it is con-

veyed, or of some person in whom that person is interested, or
for the public good.

The criminal law of this country with regard to defamation depends on the cons-
truction of s . 499 and not on what may be the English law on the same subject (d).

So the Authors of the Code observe : ‘ ‘ The essence of the offence of defamation
consists in its tendency to cause that description of pain which is felt by a person
who knows himself to be the object of* the unfavourable sentiments of his fellow
creatures, and those inconveniences to which a person who is the object of such
unfavourable sentiments is exposed.

" According to the theory of the criminal law of England the essence of the
crime of private libel consists in its tendency to provoke breach of the peace : and,
though this doctrine has not, in practice, been followed out to all the startling
consequences to which it would legitimately lead, it has not failed to produce con-
siderable inconveniences.

“ It appears to us evident that between the offence of detaining and the
offence of provoking to a breach of the peace there is a distinction as broad as that
whicK separates theft and murder.

“ We have determined to propose that defamation shall be made*tm offence
without any reference to its tendency to cause acts of illegal violence.

(d) Greene v. Delanney , (1870) 14 W. R. (Cr.) 27; Parwati, (1919) 41 A. 311 ;
Nagarji r. Triftamji, (1894) 19 B. 340,

$9

994

THE INDIAN PENAL CODE

[ CHAP. XXI

44 We considered whether it would be advisable to make a distinction between
different modes in which defamatory imputations may be conveyed and we came
to the conclusion that it would not be advisable to make any such distinction.

“ By the English Law, defamation is a crime only when it is committed by
writing, printing, engraving, or similar other process. Spoken words reflecting
on private character however atrocious may be the imputations which those words
convey, however numerous may be the assembly before which such words are
uttered, furnish ground only for a civil action. Herein the English law is scarcely
consistent with itself.

44 The distinction which the English criminal law makes between written and
spoken defamation does not appear to us to be entitled to much weight.

“ On the whole we are so far from being able to discover any reason for
exempting any mode of defamation from all punishment that we have not even
thought it right to provide different degrees of punishment for different modes of
defamation. We do not conceive that on this subject any general rule can with
propriety be laid down.

44 There are nine excepted cases in which we propose to tolerate imputations
prejudicial to character. The exception which stands first in order will probably
be thought by many persons objectionable. It is opposed to the rules of the
Engish Criminal Law. It goes, we fear, beyond what even the boldest reformers of

English Law have proposed The question

is whether the truth of an imputation prejudicial to character should in all cases,
exempt the author of that imputation from punishment as a defamer. We conceive

that it ought to exempt him The pain which a

false imputation gives to the person who is the object of it is clear, uncompensated
evil. There is no set-off whatever. The pain which a true imputation gives to
the person who is the object of it is* in itself an evil and therefore ought
not to be wantonly inflicted. But there is some counterbalancing good. A true
imputation may produce a wholesome effect on the person who has by his mis-
conduct exposed himself to it. It may deter others from imitating his example.
It may set them on the guard against his bad designs

“ There are undoubtedly many cases in which the spreading of true reports
prejudicial to the character of an individual would hurt the feelings of that individual

without producing compensating advantage in any other quarter. . „ , . , ;

Those who would not allow truth to be, in such cases, a justification, would admit
that it ought generally to be a mitigating circumstance. These two propositions
then weconsider as established : — First , in some cases of prosecution for defamation
the truth of the imputations alleged to be defamatory ought to be a justification.
Secondly , that in the vast majority of such cases, if not in all, truth, if it be not a
justification, ought to be a mitigation. #

"Froitl the two propositions a third proposition necessarily follows that in
all cases of prosecution for defamation if the defendant avers that the imputation*
complained of as defamatory are true, the Court ought to go into the trulh of those
imputations. \

OF DEFAMATION

995

SEC. 499 ]

"Being of opinion that truth shall always be a justification we

have merely made the language of the Code correspond with it without its virtual
operation

“When an act is of such a description that it would be better that it should
not be done, it is quite proper to look at the motives and intentions of the doer for
the purpose of deciding whether he shall be punished or not. But when an act is
really urgent to society, — an act of a sort which it is desirable to encourage has been
done, it is absurd to inquire into the motives of the doer for the purpose of punishing
him if it shall appear that his motives were bad

** We have hitherto argued that by malice is meant real malice and

not a fictitious, a constructive malice # * (e).

Difference between English and Indian Law The material difference
between the Indian and the English criminal law of defamation is laid down in the
dissentient judgment of Duthoit, J., in the Full Bench Case of Taki Hussain (f)
as follows: —

I. Whereas the English Common Law makes punishable :

(1) libels on private individuals,

(2) libels on bodies of men and corporations,

} WHy reprehensible.

(5) libels on the dead,

(6) seditious libels.

(7) obscene and blasphemous libels,

the Indian Penal Code provides elsewhere for seditious and obscene and
blasphemous libels ; and whilst providing in its XXIst Chapter for the punishment
of the other libels set out above, mabes none of them in particular as deserving
special reprehension.

“ II Whereas the English Law does not, except in certain special cases,
mal»» defamatory word, not reduced to writing punishable, the Indian Law makes
them punishable.

" III. Whereas the Indian Law constitutes, the * making ’ of a libel an offence
distinct from the 'publishing', the English Law has not as yet made this distinction,
but treats the ‘ making ’ as an attempt to comment or as an abetment of the sub-
stantive offence of ‘ publishing ', the language of the Indian statute (s. 499 of the
Indian Penal Code) is ‘ whoever makes or publishes’, the language of the English
^statute (6 and 7 Viet. c. 96 Ss. 4 and 5) is "if any person shall maliciously pub-
Iish (e) f, (g) Xg)

Knox, C. J., held : “There is a marked difference between criminal liability
for defamation under the English law and under the Indian law, arising no doubt
.from the fact that the English criminal. law when dealing with defamation had
mainly to consider whether the defamation was such as would result in a breach
of the peace on the question whether the person who claimed punishment for

(e) * Note R. , . &

(f) 7 A. 205 (F. B.). . „ „

(g) ’ Taki Hussain, (1884) 7 A. 205 F. B„ (200)

996

THE INDIAN PENAL CODE

[CHAP. XXI

defamation was a person aggrieved by the statements made. In the present case
the defamation consisted of imputing matters which concerned a deceased person.
The Authors of the Code have themselves pointed out their intention that the penal
law in India on this point should differ from that in England. Their intention
was that the essence of the offence of defamation should consist in its tendency to
cause that description of pain which is felt by a person who knows himself to be
the object of the unfavourable sentiments of his fellow creatures and those in-
conveniences to which a person who is the object of such unfavourable sentiments
is exposed. This was the reason evidently why they attached to s. 499, the explana-
tion marked I. S. 499 by itself could not touch the present case ” (h).

Libel and slander : — “ In England false defamatory words, if written and
published, constitute a libel, if spoken, a slander. The word ‘written* includes
any printed, painted or any other permanent representation not transient in its
nature as are spoken words. A picture, statue or effigy may also be a libel or any
other mark or sign exposed to view if it conveys defamatory meaning. There is a
further important distinction between slander and libel. A libel is a crime ; a
slander on a private individual is not. It is only when the words uttered are
blasphemous, seditious or obscene that the State is concerned to interfere and
punish the speaker " (i).

Absolute privilege The Calcutta High Court has held that the Common
Law doctrine of absolute privilege as a defence in defamation action does not
apply in India (j). For a fuller treatment of the subject see the commentary under
this heading, infra .

Essential ingredients of the section , Shah, J., has held: “What is
necessary to complete the offence is that there must be an imputation with re-
ference to a person intending to harm or knowing or having reason to believe that
such imputation will harm the reputation of the person against whom the imputa-
tion is made If the legislature intended that it was an essential part

of the offence of defamation that harm should be caused to the reputation of the
person against whom the imputation was made, the words ‘ intending to harm
or knowing or having reason to believe that such imputation will harm*, should
have been omitted and the word. ‘ harming ’ could have been easily substituted

I don’t say that the question of actual harm to the reputation of a person

can never be relevant in determining the question of intention or knowledge or
belief required by the section. But the proof of actual harm is not essential ” (k).

To constitute an offence under this section, there must be a publication to a
stranger of the libel complained of. To maintain a. prosecution in a particular
Court, there must be a publication within the jurisdiction of the Court (1).

In a defamation case, the prosecution must prove affirmatively the libel alleged
and should not fill in the gaps by admissions of an accused person in answers to
questions put by the Court. The mere fact that the accused did not deny in his
written statement does not justify the inference that he admitted the fact, since
there are no pleadings in a criminal case (m).

(h) JParwati, (1919) 41 A. 311 : 17 A. L. J 214 : 20 Cr L. J. 231 : 49 I,d. 85#
where Lab ouch ere, (1884) 12 Q. 13. D. 320 was cited.

(i) Odgers ' Libel & Slander.’, 5th Edition, Ch. 1.

(j) Satish Chandra Chakravarty v. Ramdayal De, (1920) 48 C. 388 (SB):- 24

C. W. N. 982 : 32 C. L. J. 94 : 22 Cr. L. J. 31 : 69 I. C. 143.

(k) Alex Pimento, (1920) 22 Bom. L. R. 1224 :* 22 Cr. L. J. 68 : 69 I. C 402';

Madanjit, (1909) 4 Bur. L. T. 48 : 12 Cr. L. J. 129 : 9 I. C. 776.

(l) Burke v. Skipp, (1922) 46 M. L. J. 764 : 33 M. L. T. 168 : (1923) M W. N.

913 : A. I. R. (1924) Mad. 340.

(m) Jeremiah v. F. S. Vas, (1910) 36 M. 467* 22 M. L. J. 73 ; 10 M. L. T. 606 ;

(1911) M. W. N. 576: 12 Cr. L. J. 686 : 12 I. C. 961* . *

SEC. 499 1

OF DEFAMATION

99?

Though there is some authority for the proposition that words prima facie
defamatory used in a street quarrel should be regarded as mere vulgar abuse, yet
the Allahabad High Court held that in view of the circumstances of a particular
case it may be made the ground of a charge of defamation (n).

4 Whoever by words either spoken or intended to be read, or by signs
or by visible representations, makes or publishes any imputation concern**
ing any person * : — The Penal Code makes no distinction between written and
spoken defamation (o). English Law gives great license to a defendant but under
the Indian Penal Code a person using defamatory expressions for the protection
of his own interest is not privileged, unless the imputation is made in good faith i\e,,
with due care and attention (p). In a case of slander, where the complainant was
publicly abused, the Madras High Court observed that the rule of English Law
which prohibits, except in certain cases, an action for damages, for oral defama-
tion unless special damage is alleged, being founded on no reasonable basis, should
not be adopted by the Courts of British India. If defamatory expressions are
used so as to induce in the minds of the plaintiff a reasonable apprehension that
his reputation is gone and to inflict on him pain consequent on such belief, the
plaintiff is entitled to recover damages without actual proof of loss sustained (q).
Harrington, J., of the Calcutta High Court sitting on its original side held that
slanderous words in imputing unchastity to a female is not per se actionable in
Presidency towns at least, without proof of actual damage (r).

* any person 9 : — Defamation must be of a person. A newspaper is not a
person and therefore it is not an offence to defame a newspaper (s).

'makes or publishes any imputation concerning any matter 9 i — The

words * makes or publishes * may probably carry the same meaning as, 4 publication 4
in English Law.

Where the petitioner before the High Court was charged with defamation
for writing and handing over a chowkidari receipt to the complainant describing
them as “ Brethial Bania\ without the particulars or occasion of the alleged de-
famation as stated in the charge, the Calcutta High Court held that there was no
proper charge inasmuch as it did not set forth the particular occasions on which
the defamation is said to have been committed, and that the delivery of the receipt
to the complainant was not publication rendering him liable for punishment for defama-
tion and that the refusal of the petitioner to apologise did not indicate any presence
of malice in him (t). Where the accused sent to a public officer by post in a closed
cover a notice under s. 424 of the Civil Procedure Code, a letter containing imputa-
tion on the character of the recipient, but which was not communicated by the
accused to any other third person, the Full Bench of the Allahabad High Court
(Petheram, C. J., Oldfield, Brodhurst and Mahmood J.J., Duthoit, J., only dissent-
ing) held that there was no making or publishing of the matter complained of so as
to constitute an offence within the terms of this section (u).

Mere sending of a notice to a person, albeit containing matter of a defamatory
nature, cannot be held to be equivalent to making or publishing an imputation

C.

(n) Raja Ram Singh, (1917) 10 A. L. J. 498 : 19 Cr. L. J. 609 : 45 I. C. 1005.

(o) Mohunt Pursorant, (1865) 2 W. R. (Cr.) 36.

(p) Puvsoram Das . (1865) 3 W. R. (Cr.) 48.

(q) Parvati v. Mannar, (1886) 8 M. 175.

(r) Bhooni Money Dasee v. Natobar Biswas, (1901) 28 C. 452 (464).

(s) Maung Sein, (1926) 4 R. 462.

(t) Biswanath Das v. Keshab Chancier Ghandabanik , (1902) 30 Cal. 402 : 7
W. fir. 74.

(u) Taki Hussain , (1884) 7 A. 205 (F. D.);

THE INDIAN PENAL CODE

998

[CHAP. XXI

intending to harm or knowing or having reason to believe that it will harm the
reputation of the person to whom it is addressed (v).

For a number of persons to meet and resolve not to associate with a person
for good reasons is not defamation, nor does the sending of the copy to the person
in question make it defamation (w). The Madras High Court has held that the
dictating of a letter to the writer of it is a publication within the meaning of this
section (x)

There is no publication if the libel be addressed to the party himself (y). But
it amounts to publication to give a libel to the clerk or the writer to be copied (z).

Lord Esher said with reference to written matter : " What is the meaning of
' publication * ? The making known of the defamatory, matter, after it has been
written, to some person other than the person of whom it is written. If the state-
ment is sent straight to the person of whom it is written, there is no publication
of it, for you cannot punish a man of libel to himself. If there was no publication,
the question whether the occasion was privileged does not arise. If the writer
of a letter locks it up in his desk, and a thief comes and breaks open the desk, and
takes away the libel and makes its contents known, I should say that there would
not be a publication. If the writer of a letter shows it to any person other than
the person to whom it is written, he publishes it ff (a).

Where defendant wrote defamatory statements of the plaintiff in a letter to
W under circumstances which made the publication to W privileged, but by
mistake the defendant placed it in an envelope directed to another person who
received and read the letter, it was held that by reason of the defendant s
inadvertence, the case is nol taken out of the category of privilege, so that
malice should be implied (b).

In an action for libel the fact that the defendant has disclosed the libel to his
wife is not evidence of publication (c).

So Lord Coleridge, C. J., observed with regard to a libel conveyed by a
telegram as follows : “ It would be extending the doctrine of privileged communica-
tion to a most alarming degree if the transmission of a telegram were put upon the
same footing as that of a sealed letter. Although the clerks are. prohibited under
severe penalties from disclosing the contents of telegrams passing through their
hands, still there is a disclosure to them" (d).

Publication by repetition : — The word ‘ publication * is wide enough
to include a repetition or republication of a libel already published (e).

When the accused made a highly defamatory statement in a deposition before
a Law Court about the complainant, the Madras High Court (Muttusami Aiyar, J.)
held : “The Magistrate was bound to issue a process, observing that the Magistrate
was not at liberty to anticipate a case of privilege unless it is distinctly admitted
by the complainant further the Magistrate ob-

serves that the defamatory statement subsequently culminated in the more serious

(v) Sadashiv Atmaram, (1803) 18 B. 205 (200).

(w) Ngaon Thin, , (1921) 1 Bur. L. J. 30 : 23 Cr. L. J. 240 : 68 I. C. 80 : A. I. R.
(1923) Rang. 16.

(x) Varnahota Utah, (1900) 1 Weir 579.

(y) Phillips v. Janeson , 2 Esp. 624; Wennhak v.*M organ, (1888). 20 Q. B. D.
635 (637).

(z) Pullman v. Hill , (1801) 1 Q. B. 524.

(a) Pullman v. Hill, (1891) 1 Q. B. 524 (527).

(b) Thompson v. Dashwood, (1879) 11 Q. B. D. 43. #

(c) Wennhak v. Morgan , (1888) 20 Q. B. D. 635. ,

(d) Williamson v. Freer , L. R. 9 C. P. 393 (394).

(e) Talbutt v. Clark , 2 Moody & Rob. 312 ; Holt, 8 Cox. 411. d

SEC. 499 ]

OF DEFAMATION

999

offence of giving false evidence in a judicial proceeding and concludes that the
complainant's remedy is limited to prosecuting the accused for perjury. I am

unable to follow the Magistrate in his reasoning. The doctrine of merger

has no place in criminal law” (0*

Publication by republication In an action for libel, it is no plea that the
defendant had the libellous statement from another, and upon publication disclosed
the authors name. In this connection Best, C. J„ observes : “ Written com-
munications are often made for the information of those to whom they are given

and for their information only Can it be permitted that persons

possessing such communications should publish them to the world if only they
give the names of those by whom they were made. It is a principle of our law that
whoever wilfully assists in the doing of an unlawful act, becomes answerable for all
the consequences of such act, what reason is there to except the circulation of slander

out of this rule .because one man does an unlawful act to any person,

another is not to be permitted to do a similar act to the same person. Wrong
is not to be justified or excused by wrong. If a man receives a letter written
from the author to publish it, the person receiving it will not be justified if it con-
tains libellous matter, in inserting it in newspaper If the receiver

of a letter publish it without authority, he is from his own motion, the wilful
circulator of slander” (g).

Where the editor of a newspaper published a defamatory matter already
published, the Bombay High Court held that this (section) makes no excep-
tion in favour of a second or third publication as compared with a first. If
the complaint is properly laid in respect of a publication which is prima facie
defamatory, the Magistrate is bound to take cognizance of the complaint and
deal with it according to law (h).

Where the accused submitted a memorial to the Lieutenant Governor con-
taining defamatory statement against a Deputy Collector and repeated those
statements before the officer deputed by the Lieutenant Governor to an enquiry,
it was held by Mr. Justice Banerjee of the Allahabad High Court that there was a
publication of the libel made in the memorial and the petitioner was guilty of both
making and publishing the libel (i).

Publication by printer, publisher or a journalist Regarding the
position of a journalist in the celebrated McCormick defamation case where Mr.
Arnold, the editor of the ‘ Rangoon Times * was the accused, their Lordships of
the Judicial Committee observed: “Their Lordships regret to find that there
appeared the time-worn fallacy that some kind of privilege attaches to the pro-
fession of the press as distinguished from the members of the public. The free-
dom of the journalist is an ordinary part of the freedom of the subject, and to
whatever length the subject in general may go, so also may the journalist, but
apart from statute law his privilege is no other and no high. The responsibility
which attaches to his power in the dissemination of printed matter may, and in
the case of a conscientious journalist, do make him more carefpl ; but the range
of his assertions, his criticisms or his comments, is as wide as, and no wider than
that of any other subject. No privilege attaches to his profession” (j).

Where the editor of a newspaper in Madras was convicted but the Sessions
Judge quashed the conviction, the Madras High Court in setting aside the order

(f) PeriaswamiKotaswami Taver, (1886) 1 Weir 580.

(g) De Crespigny v. Wellesley , (1829) 5 Bing. 404.

(h) In re Howard, (1888) 12 B. 167.

(i) Jai Debt , (1916) 13 A. L. J. 681 .

(j) Channing Arnold , (1&14) 41 I. A. 149 : 41 C. 1023 :
C. W. N. 786 : 26 C. L. J. 621 : 16 M. T. T. 79 ; (1914) M.
I-. R. 544 : 12 A. L. J. 1042 : 8 L. B. R. 16. f

20 Cr. L. J. 101 : 18
W. N. 506; 16 Bom.

iooo

THE INDIAN PENAL CODE

[ CHAP. XXI

of acquittal of the editor observed that in the absence of proof to t!>e contrary, the
declaration of the editor under Act XXV of 1867 was prima facie proof of publica-
tion by the author. Their Lordships further observed that it would be a suffi-
cient answer to the charge “ if the accused showed that he entrusted in good faith
the temporary management of the newspaper to a competent person during his
absence and that the libel was published without his authority, knowledge or
consent” (k).

Fair criticism of a medical advertisement regarding an eye-hospital inserted
in a public newspaper by a medical man characterising it as unprofessional has
been held by the Allahabad High Court as being protected by the third, sixth
and the ninth exceptions to s. 499, and it has been further held that the sending
of a newspaper containing defamatory matter by post from a place outside the
place of trial addressed to a subscriber is a publication in the latter place (1).

‘any imputation 9 — An imputation ordinarily implies an accusation, or
something more than an expression of opinion. But a mere expression of sus-
picion may amount to an * imputation * when it conveys the same impression as an
accusation to the person to whom it was communicated (m). Inviting a person
to dinner and asking him to leave the place is no offence in the absence of an
imputation (n). Calling a person sweeper by reason of his having associated with
sweepers is defamatory and not privileged (o). It has been held to be defama-
tion to give out that a woman had miscarriage without any knowledge whether she
was married or not (p).

* intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person ' This clause is almost
similar to what is known in the English law of libel as ‘ malicious \ As Cockburn,
C. J., observed : “ In the English law of libel, malice is said to be the gist of action
for defamation. And though it is true that by malice, as necessary to give a cause
of action in respect of a defamatory statement, legal and not actual malice is meant,
while by legal malice, as explained by Bayley, J., in Bromage v. Posser , (4 B. & C.
p . 255) is meant no more than the wrongful intention which the law always pre-
sumes as accompanying a wrongful act without any proof of malice, yet the pre-
sumption of law may be rebutted by the circumstances under which the defamatory
matter has been uttered or published ” (q\.

The question whether a statement is a libel or not and the correct charge to
the jury on this point is stated by Best, J., as follows: —

“With respect to whether this was a libel, I told the jury that the question
whether it was published with the intention alleged in the information was pecu-
liarly for their consideration ; but I added that this intention was to be collected
from the paper itself, unless the import of the paper were explained by the mode
of publication, or by any other circumstances. I added that if it appeared that
the contents of the paper were likely to excite sedition and disaffection, the de-
fendant must be presumed to intend that which his act was likely to produce” (r).

Where the question referred to the Full Bench was : Whether or not a libellous
communication made* only to the person whose character is attacked amounts to

(k) Ramaswami v. Lokananda, (1880) 9 M. 387.

(l) Per Stuart C. J., in McLeod , 3 A. 342 (345). «

(m) Thambu, (1926) 96 I. C. 211 : A. I. R. (1926) Lah. 278.

(n) Faquir, (1926) 24 A. L. J. 893 : 27 Cr, L. J. 1390 : A. I. R. (1926) All. 711.

(o) Khamani , (1925) 24 A. L. ]. 171 : 27 Cr. L. J. 290 : A. I. R. (191 6) All. 300.

(p) Kashi Ram , (1930) A. L. J. 1121.

(q) Wason v. Walter, (1868) L. R. 4 Q. B. 73 (87),

(r) Per Best J., in Burdett , 4 B. and A* at p. 120.

SEC. 499 ]

OF DEFAMATION

1001

the offence of defamation ? Mahmood J., held as follows : “ Now to arrive at a
conclusion as to the law of India upon this point, we must look to the terms of
s. 499, I. P. C., read as a whole with all the explanations, illustrations and excep-
tions which it includes This

explanation (Exp. 4) convinces me that by ‘ harm ' is meant imputations on a
man's character made and expressed to others , so as to lower him in their estima-
tion, and that anything which lowers him merely in his own estimation, certainly
does not constitute defamation. Now in the case which has been referred to us,
taking the reference as it stands, there were imputations communicated to the
prosecutor only, and therefore they cannot be treated as defamatory" (s).

Proof of actual harm to the reputation of the person defamed is not necessary (t).
The intention or knowledge is sufficient. It is not necessary to prove that the
person alleged to have been defamed has actually suffered in reputation (u).

See commentary under explanation 4.

Explanation 1. — It may amount to defamation to impute anything to a deceased
person , if the imputation would harm the reputation of that person , if living , and is
intended to be hurtful to the feelings of his family or other near relatives.

This explanation says that it is defamation to make any imputation against a
deceased person if such imputation hurts the feelings of his family or other near
relatives and would have hurt him if living. So Kenyon, C. J., observed: "To
hold that even after ages are past, the conduct of bad men cannot be contrasted
with the good would be to exclude the most useful part of history, and therefore,
it must be allowed that such publications may be made fairly and honestly. But
let this be done whenever it may, whether soon or late after the death of the party,
if it be done with a malevolent purpose, to valify the memory of the deceased, with
a view to injure his posterity, then it becomes illegal " (v).

No civil action for defamation is maintainable by any member of the family (w).

Explanation 2. — It may amount to defamation to make an imputation concern -
ing a company or an association or collection of persons as such .

Where the complainant was a member of the police force at Charmanier in the
District of Faridpur and the petitioner was a member of the District Congress Com-
mittee, who on hearing of oppression committed by the police, came to the scene,
took down notes of statements made by the villagers and was charged with defama-
tion relating to two speeches made by him on two different occasions, the first charge
stating that he made an imputation concerning the police torce at Charmanier to
the effect 4 not to speak of the police only but the British Government themselves
and the superior officers including from the District Magistrate down to the
Daroga and Chowkiciars were all beasts and pigs in their conduct, intending to
harm', etc., and the second charge was that he defamed by the following imputation
4 to the effect that the police force employed at Charmanier had bitten off the nipple
of the breast of a woman and had bitten the cheek of a woman’, etc., B. B. Ghose, J.,
held that the charges were not sustainable against the petitioner at the instance
of the complainant as 44 the words complained of in the charges have not been
proved to have been used with reference to each and every member of the police
force and the complainant cannot therefore be said to be a person aggrieved by the

(s) Taki Husain, (1884) % A. 205 (220, 221).

(t) Alex Pimento, (1920) 22 Bom. L. R. 1224 : 22 Cr. L. J. 58: 59 I. C. 202.

(u) Govinda Prosad Panday v. Garth, (1900) 28 C. 63; Anon, (1883) 1 Weir
575; Alex Pimento, (1920) 22 Bom. L. R. 1244 : 22 Cr. L. J. 58 : 59 I. C. 202.

(v) Topham, (1791) 4 T. R. 126 (129) ; Critchley, (1793) 4 T. R. 129 ; Labouchere,
(1884) 12 Q. B. D. 320.

(w) Luckumsey Rowjee v. Hurbum Nursey (1881) 5 B. 580 ; Varajlal v. Ramdat,
(1901) 26 B. 250 ; Btahmana v. Ramkrishna (1895) 8 M. 250,

1002

THE INDIAN PENAL CODE [ CHAP. XXI

offence complained of " (x). Owing to a difference of opinion between Ncwbould,
J. f and B. B. Chose, J. f the case was referred to Buckland, J., who delivered the
judgment of the Court and directed a retrial as the charges did not conform to
the requirements of the definition in s. 499.

Buckiand, J. f held on this point as follows : “The explanation in my opinion
is intended to include a company or an association or collection of persons as such
within the word 4 person * as used in the definition so that the latter should not be
limited to individuals

44 In a case in which the explanation is properly called into use the identity of
the company or association or collection of persons must be maintained throughout
with reference to the imputation said to have been made concerning them as such
with the intention of harming their reputation so that thereby they are defamed.
An imputation concerning a company or association of persons as such, and the
last two words of the explanation are most material to its correct application, cannot
by virtue of this explanation justify a charge of defaming an individual, and a charge
cannot combine the explanation with the definition for such a purpose. Nor does
it carry the matter any further to state as has been done by the charges in this case
that the complainant was a member of the police force at Charmanier M (y).

Where the * Statesman ’ had published an article libelling Hindu widows as
a class, and on that ground alone the Magistrate had refused to issue a process,
held that the complainant should be given an opportunity of proving his case (z).

Law of libel against a body of persons incorporated into a religious
order : — In a case before the York Summer Assizes (1838) where one Rev. Michael
Augustus Gathercole was charged with having published a false malicious and
scandalous libel against a certain religious order and community commonly called
the Scorton Nunnery, Baron Alderson, in his charge to the jury on all the four
counts of charge made the following remarks : “ The point is, whether this is only
libel on the whole Roman Catholic Church generally or on Scorton Nunnery ?
In the former case, the defendant is entitled to an acquittal. If it be a libel on
Scorton Nunnery generally then the defendant must be found guiity as to the charge
of publishing a libel with intent to defame and vilify a certain religious order
or community commonly known as Scorton Nur\pery and certain persons being the
Lady Abbess and Nuns of the said order, and certain other persons being the
Chaplains thereof. It may be on Scorton Nunnery generally and on the inmates
named in particular . In that case, the defendant is liable to be convicted on all
the counts. A person may, without being liable to prosecution attack
Judaism or Mahomedanism or even any sect of the Christian religion (save the
established religion of the country ) ; and the only reason why the latter is in a
different situation from the others is, because it is the form established by law, and
is therefore a part of the constitution of the country. In like manner, and for the
same reason, any general attack on Christianity is the subject of criminal prosecu-
tion, because Christianity is the established religion of the country. The defend-
ant here has a right to entertain his opinions, to express them and to discuss the

(x) Per B. B. Ghosc, J. ( in Pratap Chandra Guha Roy , (1925) 29 C. W. N. 904
(912, 913, 914) : 42 C. L. J. 178 (187, 188, 189, 190), following T baking v. Osborne ,
(Jew's Case) (1732) 2 Bamardiston, 138; Williams , (1811) 5 Barn. & Aid. 595;
Nildarpan case '. Metropolitan Salom Omnibus Co. v. Hc&vkins , (1859) 4* H. & N. 87
(90) ; Mayor of Manchester v. Williams , (1891) 1 Q. B. 94 ; South Helton Coal Co . v.
North Eastern News Association, (1894) 1 Q. 13. 133 (141) ; King v. Or me, 1 Ld.
Raym. 486.

(y) Ibid , p. 917 : 42 C. L. J. 178 (194).

(z) Mahim Chandra Roy v. A . H. Watson, (‘ Statesman * defamation case) 55 C.

1280 . «

SEC. 499 ]

OF DEFAMATION

1003

subject of the Roman Catholic religion and its institutions, but he has no right
to say of a particular body of persons (e.p., the inhabitants of Scorton Nunnery),
and the place they inhabit is a brothel of prostitution, for in doing that he is
attacking the individual character of the body of whom Scorton Nunnery consists.
The indictment charges the defendant with intending to injure the character of the
prosecutors ; and every man, if he be a rational man, must be considered to intend
that which must necessarily follow from what he does. In considering this question,
you will further observe that a great portion of this libel consists of insinuations .
Now if a man insinuates a fact in asking a question , meaning thereby to assert it,
it is the same thing as if he asserted it in terms ” (a) The jury in this case returned
a verdict of guilty.

Where a Hindu lodged a complaint on the ground that at the time of a feast
of the brotherhood the accused declared that he had been outcast and was not
fit to sit down at the feast, the trial Court dismissed the case holding that it was
covered by s. 95. Although the Sessions Judge held that the words were defama-
tory he disallowed the application in revision holding that the complainant did not
show that his character was lowered by such imputation. The High Court
directed a retrial as the complainant had made out a clear case of defamation (b).

So where a person called lawyers as a class ‘ thieves ’ it was held that he was
guilty of defamation of a class (c).

Explanation 3 : — An imputation in the form of an alternative or expressed
ironically , may amount to defamation .

This explanation says that a person may defame another by using innuendo or
ironical or sarcastic language.

Buckland, J., in the well-known case of Pratap Guha Roy (d) has held as
follows : —

“ The cardinal rule is that the offence consists in using language which others
knowing the circumstances would reasonably think to be defamatory of the person
complaining of and injured by it 99 ( Per Lord Loreburn L. C., in E. Hulton <§■ Co.
v. Jones, (1910) A. C. 20.

Abbott, C. J., in Bourke v. Waefren , (1826) 2 C. and P. 307 said: “The
question for your consideration is whether you think the libel designates the plain-
tiff in such a way as to let those who knew him understand that he was the person
meant. It is not necessary that all the world should understand the libel : it is
sufficient if those who know the plaintiff can make out that he is the person meant.”

Lord Cottenham, L. C., observed : “ If a party can publish a libel so framed as
to describe individuals though not naming them, and not specifically describing
them but still so describing them that it is known who they are, as the jurors have
found it to be here, and if those who must be acquainted with Jthe circumstances
connected with the party described may also come to the same conclusion, and
may have no doubt that the writer of the libel intended to mean those individuals,
it would be opening a very wide door to defamation, if parties suffering all the in-
conveniences of being libelled were not permitted to have that protection which
the law affords. If they are so described that they are known to all their neighbours
as being the parties alluded to # ; and if they are able to prove to the satisfaction

(a) Gathercole, (1838) 2 Lewin C. C. 237.

(b) Mohan Lai v. Ramcharan , (1928) 26 A. L. J. 361.

(c) Eastward v. Holmes , (1858) F. and F. 349.

(d) . Pratap Chandra Guha Roy, (1925) 29 C. W. N. 904 (918) : 42 C. L. J. 178

1004

THE INDIAN PENAL CODE

[CHAP. XXI

of a jury that the party writing the libel did intend to allude to them, it would be
unfortunate to find the iaw in a state which would prevent the party being protected
against such libels'* (e).

In a case on appeal before the Privy Council from the Supreme Court of New
South Wales, which case arose out of an action brought by the plaintiff, as manager,
conductor and part-proprietor of a newspaper known as the ‘Evening News,’
printed and published in the city of Sydney against the appellants, the Australian
Newspaper Company, Limited, for a libel alleged to have been published in a news-
paper called the 4 Australian Star ’ in a report about the result of a boat race ; the
Lord Chancellor, Lord Herschell, in delivering the judgment of the Privy Council
remitting the case back, observed : “ The learned Judge seems to have lost sight
of the fact that people not unfrequently use words, and are understood to use
words, not in their natural sense or as conveying the imputation which in ordinary
circumstances and apart from their surroundings, they would, but extravagantly,
and in a manner which wouid be understood by those who hear and read them as not
conveying the grave imputation suggested by a mere consideration of the words
themselves. Whether a word is in any particular instance, used and world be
understood as being used, for the purpose of conveying an imputation on charac-
ter must be for the jury. The language must be looked at as a whole in considering
whether the jury could reasonably come to the conclusion that the use of the
word was not intended to convey and that those reading the newspaper would not
understand it as conveying the serious imputation suggested ” (0*

Explanation 4 s — No imputation is said to harm a persons reputation , unless
the imputation directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person in respect of his caste or of his calling f or lowers
the credit of that person , or causes it to be believed that the body of that person is in
loathsome state , or in a state generally considered as disgraceful .

Morgan and Macpherson observe : “If an imputation has no tendency
to harm a person in his reputation, it will not amount to defamation although its
effect may be to cause that person to suffer in his interests. Thus A falsely tells
B, who is a public servant having an office at his disposal, that Z , to whom B
intends to offer that office, will not accept it. B, in consequence, gives that office
to another. Here Z , though he suffers in his interests, is not harmed in his reputa-
tion, and therefore, is not defamed.

“An imputation which is defamatory when directed against one person, is
not necessarily defamatory when directed against another person. Thus it may
harm the reputation of one man to say that he drinks wine, that he eats beef, etc.,
“acts which without offence may be imputed to another man and admitted by him
without harm to his reputation.

The essence of the offence is the intention or knowledge of the offender
that the imputation may harm some person’s reputation. Where no such inten-
tion or knowledge exists, the offence of defamation is not committed. The journey-
man printer may be acquitted of defamation on the ground that in setting the types
for printing defamatory matter and so aiding towards the circulation thereof, he
had not the intention described in the definition, while the person who wrote the
defamatory matter, for printing which the journeyman ignorantly set the types,
may be convicted, because it may be clear that his purpose was to defame” (g).

(e) LeFanu v. Maholmson, (1848) 1 H. L. C. 087 ; Kali Prasanna Kabyabisharad,
(1897) 1 C. W. N. 465.

(f) Per Lord HerschelJ, L. C., in Australian Newspaper Co. v. Bennett , (1894)

A. O. 287. •

(g) Morgan and Macpherson, ‘ Penal Code pp. 441, 442.

SEC. 499 ]

OF DEFAMATION

1005

The definition of 4 defamation * requires, as an essential element, intention
to harm or knowledge or belief that such imputation will harm the reputation of
such person. The word ‘ harm * or 4 reputation * has not been defined in the
Code. This explanation elucidates the meaning of 4 harming a person s reputation .

Straight, J., observed : “ This explanation does not apply where the words
used and forming the basis of a charge are per se defamatory. When an
expression, used verbally or in writing, is doubtful as to its significance, and some
evidence is necessary to decide what the effect of that expression will be, and
whether it is calculated to harm a particular person’s reputation, it is possible that
the principle enunciated in explanation 4 of s. 499 might and would with prooriety
be applied** (h).

Defamation by letters in caste question In a case where the accused,
the spiritual head of the Smarto sect in the northern circars sent a letter of ex;
communication to a person (complainant) attending a widow re-marriage ceremony
at Rajahmundry, it was held by the Madras High Court, (Turner, C. J., and
Muttusami Ayyar, J., concurring) that the accused by communicating the sentence
of excommunication by registered post committed the offence of defamation. In
this case Muttusami Ayyar, J., observed: “The mode of publication adopted
by the defendant (accused) vitiates the privilege and indicates a conscious disregard
of the complainant's legal right. On this ground, I must say that legal malice
is made out and the respondent must be convicted of defamation/* Turner, C. J.,
observed : “ The communication of the sentence of excommunication to
the complainant by a card sent through the post was a publication in excess of
the purpose for which the privilege was allowed, and is, therefore, not protected by

privilege he must have known that the announcement might

by reason of the form of communication adopted, reach others than those to whom
he was entitled to make it and he must be held to have committed the offence of
defamation** (i).

Speaking of the effect and meaning of the explanation on the law of defama-
tion, Mahmood, J., observed in the leading case of Queen-Empress v. Taki Husain
before a Full Bench of the Allahabad High Court (where the accused sent to a
public officer by post in a closed cover a notice under s. 424 of the Civil Procedure
Code containing imputations on the character of the recipient) to the effect : —

44 Now, to arrive at a conclusion as to the law of India upon this point, we
must look the terms of s. 499 of the Penal Code, read as a whole, with all the

explanations, illustrations and exceptions which it includes It appears

to me that the most important words in it are ‘ intending to harm ’ or will 4 harm *

I lay special stress on the word 4 harm * because the words

4 makes or publishes * are governed by the meaning which we must attach to
4 harm/ Now the meaning attached to 4 harm * is not the ordinary sense in which
the word is used, because a special meaning is given to it by statute. Explanation

4 convinces me that by ‘ harm ’ is meant imputations on a mans character

made and expressed to others , so as to lower him in their estimation and that anything
which lowers him merely in his own estimation, certainly does not constitute de-
famation/* The observations of Petharam, C. J., in the case was also to the
following effect : —

44 S. 499 is a short section, but it contains many illustrations and. exceptions.

These illustrations only deal with communications made to third persons.

Ea ch of the exceptions relates to such communications. The question is, whether

A. I

(h) McCarthy, (1887) 9 A. 420, followed in Moharn Lai, (1928) 26 A. L. J. 361
. R. (1928) A. 213.

(i) Sankara, (1883) 6 M. 361.

1006

THE INDIAN PENAL CODE

[CHAP. XXI

the terms of the section are so distinct as to make the action of the appellant in
this case a crime. Here no imputation was made except to the police-

man himselL How could such an imputation possibly injure his reputation. A
man has no ‘ reputation * to himselt and, therefore, the section does not make an
act of this nature a crime " (j).

The offence of defamation in alleging certain defamatory . statements by
circulating letters of excommunication, as the result of the decision of a caste
Panchayat came to be considered and decided in an Allahabad case where the
accused appellants, members of a caste Panchayat, had been convicted of an
offence under this section, by insinuating commission of a certain offence by
circulating letters to the members of their caste, putting out of caste the com-
plainant person and a woman, between whom an illicit intercourse was alleged
"to exist. The Allahabad High Court, (Straight, J.,) in upholding the conviction
observed : “ The defendants were careless enough to use language that an ordi-
nary reader might reasonably interpret to reflect upon the complaint and lead
to the inference that he had done something punishable by law, they did so at their
peril, and they cannot now escape responsibility by saying that they intended it to

apply to another person No Court could wish to interfere with

those domestic rules and laws which regulate and control the relations between the
members of a caste. On the contrary, the tendency would rather be to counte-
nance and protect them. The defendants in the present case no doubt meant for
the best, but they allowed themselves to be betrayed into statements and expressions
which upon examination it turns out they can neither substantiate nor excuse ” (k).
In contrast with the Allahabad decision (k) the decision of the Madras High Court
(Muttusami Aiyyar, J.,) held that mere statements in caste meetings about the
inferiority of another caste and the fact of procuring the village servants to refuse
them services to that caste, however, actionable in damages, does not come under
Ss. 499 and 500 (1). But, where, in a case the accused distributed in the bazar to
all classes of the public, printed papers describing the complainant as a # doshi\
after he had been put out of caste and readmitted by the executive committee of
the caste on performing expiatory ceremonies, it was held by the Madras High Court
(Collins, C. J., and Parker, J.,) following the case of Sankara , (1883) 7 Mad. 381,
that the accused had acted without rmlice, yet had not acted in good faith, and the
publication was not under the circumstances privileged and protected by Penal
Code, s. 499, Exception X, and that the accused was accordingly found guilty of
defamation (m).

The Madras High Court has held that the term 4 Kulbrastha’, i.e., the son of
a prostitute used in a book is prima facie defamatory and does not fall under
s. 95 (n).

Where the accused by words used simply expressed his unwillingness to
associate with the complainant or to utilise his services by reason of his sympathy
with widow-marriage shown by his dining with remarried widows or associating
with persons who have dinned with them, but did not say that the latter had lost
caste, etc., it was held by the Madras High Court (Sadasia Aiyar, J., and Hannay,
J.,) that no offence under s. 499 was committed (o).

(j) Taki Hussain, (1884) 7 A. 205 (F. B.).

(k) Ramanand, (1881) 3 A. 607.

(l) Venkaita Reddi , (1885) 1 Weir 575.

(m) Thiagarayav. Krishnasami, (1892) 15 M. 214.

(n) Ramanuja Chariar V. Prataivati Boy an Kay am, (1911) M. W, N, 8: 10
M. L. T. 90: 12 Cr. L. J. 497: 12 I. C. 217.

(o) Vengat A. Venkayya v. Thallam Venhataramiah, 28 M. L. J. 58 : 17 M. L. T.

369 : 26 I. C. 460. 1

SEC. 499 ]

OF DEFAMATION

1007

For a number of persons to meet and resolve not to associate with a person
for good reasons is not defamation, nor does the sending of a copy to the person in
question make it defamation (p).

The publication of a placard stating that the prosecutor is indebted in a large
sum, and offering it for sale is not necessarily libellous ; and at all events, the Judge
cannot withdraw it from the jury on the general issue, but must leave to them,
reserving the question whether the words could possibly be libellous (q).

Where in reply to a book written by the complainant attacking Vaisnavism
and its founders, the accused retorted by a similar publication and both books dealt
with highly controversial religious matters and very violent language was used in
the latter about the complainant, the Madras High Court held that it did not
amount to defamation as the personal character or responsibility of the complain*
ant was not in any way assailed (r). r.

Exceptions : — Mayne in his valuable commentary says : " Now it will be
seen on an examination of these exceptions, and of the illustrations annexed, that
they all resolve themselves into two classes of cases : first , reports of, ox comments
upon, the acts of public men or matters of public interest ; this includes exceptions
2, 3, 4, 5 and 6.

“ Second , communications made to another in the discharge of a duty or interest
in the person who makes it. The Ninth exception states a general principle of which
exceptions 7, 8 and 10 are only particular instances. This second class includes
the whole of what are known to the English law as communications made on a
privileged occasion** (s).

The onus is on the defence to plead exceptions. The burden of proving that
the case of the accused comes under any of the exceptions is upon the accused
(i vide s. 105 of the Indian Evidence Act). It also follows indirectly from s. 106
of the Indian Evidence Act that the burden is on the accused of proving the fact
which is especially within his knowledge.

So Straight, J. observed : “ I can only look to s. 105 of the Evidence Act,
which throws upon the appellant the burden of proving the existence of circum-
stances bringing the case within the exception and directs the Court prima facie
to presume the absence of such, circumstances** (t).

First Exception : — It is not defamation to impute anything which is true
concerning any person , if it be for the public good that the imputation should be made
or published . Whether or not it is for the public good is a question of fact.

This exception taken with the section coincides almost with the English Law
as amended by Lord Campbell’s Act, 6 and 7 Viet. c. 96, s. 6 of which runs as
follows : —

S. 6. " On the trial of any indictment or information for a defamatory libel, the
defendant having pleaded such plea as hereinafter mentioned the truth of the matter
charged may be inquired into, but shall not amount to defence,* unless it was for the
public benefit that the said matters charged should be published. To entitle the
defendant to give evidence of the truth of such matters charged as a defence to such
indictment of information, to allege the truth of the said matters charged in the manner

(p) Nga On Thin, (1921) 1 Bur. L. J. 39 : 23 Cr L. J. 240 : 66 I. C. 80 : A. I. R.

(1923) R. 10.. •

(q) Coghlan , (1865) 4 F. and F. 316.

/r) Kumargurudasa Swamigal v. Krishna Swami Mudaliar, (1924) 47 M. L. T
664 : (1924) M. W. N. 768.

(s) Mayne, Criminal law of India, 3rd Ed., p. 890.

(t) Dhum Singh , (1884) Q, A. 220 (223).

1008

THE INDIAN PENAL CODE

[CHAP. XXI

now required in pleading a justification to an action for defamation, and further
allege that it was for the public benefit that the said matters charged in the manner
now required in pleading a justification to an action for defamation, and further to
allege that it was for the public benefit that the said matters charged should be pub-
lished, and the particular fact or facts by reason whereof it was for the public benefit
that the said matters charged should be published ; to which plea the prosecutor shall
be at liberty to reply generally, denying the whole thereof. If after such plea the
defendant shall be convicted on such indictment or information it shall be competent
to the Court in pronouncing sentence, to consider whether the guilt of the defendant
is aggravated or mitigated by the said pica and by the evidence given to prove or
disprove the same : Provided always, that the truth of the matters charged in the
alleged libel complained of by such indictment or information shall in no case be
inquired into without such plea of justification : Provided also, that in addition to such
plea, it shall be competent to the defendant to plead a plea of not-guilty : Provided
also that nothing in this Act contained shall take away or prejudice any defence under
the plea of not guilty which it is now competent to the defendant to make under such
plea to any action or indictment, or information for defamatory words or libel.’'

Under the English law ‘ the truth of any defamatory words is, if pleaded,
a complete defence to any action of libel or slander (though alone it is not a defence
in a criminal trial ' (u). But under the Indian Penal Code in order to come
within this exception not only should the defence succeed in establishing * truth*,
but that the imputation was made for the public good .

Odgers also says : “ In a criminal case it is not sufficient to prove the truth
of the libel ; the defendant must also prove that it was for the public benefit that
the matters charged should be published (6 and 7 Viet. c. 96, s. 6). And, indeed,
before 1843 the truth of the libel was no defence at all to an indictment; the
maxim prevailed: ‘The greater the trith, the greater the libel.* Yet it was
always otherwise with a civil action ; there the truth was a complete defence.
For in a civil action the benefit or detriment to the public is not in issue ; the
plaintiff is seeking to put in his own pocket damages for an alleged injury to a
character, to which, if the words be true, he had no right*’ (v).

Truth of the libel is a justification under both the English law and
the Indian law s — Under the Indian law, however, mere truth of the libel is not
a justification unless the imputation is for the public good . This explanation
says : “ Whether or not it is for the public good is a question of tact.”

Dealing with the question, how far the publication of an imputation (defama-
tion) is for the public good, in a case, where the accused, a member of the Thana
municipality, published in a newspaper statements which were true about the
antecedents of the complainant, a municipal officer, the Bombay High Court
(Jardine, and Ranade, J.J.,) held that the finding of the Court below was substantially
one on the facts, and therefore sitting in revision, the High Court was not inclined
to interefere except for grave reason, and further approved of the observations of
the learned Sessions Judge which were to the following effect: —

“ The general principle appears to be that the mode and extent of a privileged
communication should not be more injurious than need be. The interests of the
individual are entitled to protection as well as the interests of the public. It is
for the public interest that a municipality should not be served by an unworthy
man, but the public interest would probably be sufficiently secured by informing
the municipality of the man’s character, and to go beyond that, at least, until it
has been tried and failed in its object, is to injure a person more seriously than the
public good requires (w).

(u) Odgers, on " Libel and Slander", 5th Ed., p. 181.

(v) Ibid, p. 191. •

(w) Janardhan Damodhar , (1894) 19 B. 703,

SEC. 499 ]

OF DEFAMATION

1009

Where the accused merely discussed about the respective educational quali-
fications of the complainant and many other persons for municipal office but
abstained from aspersing on their private character, the Madras High Court
(Wallis and Ayling, J.J.,) held that no offence of defamation was committed (x).

Where the accused by name Madanjit, proprietor and editor of a news-
paper called the 'United Burma', published in his newspaper a leading article
entitled Mlechha methods at a Brahmin marriage directed against N. P. Iyer, a
Brahmin, the Lower Burma Chief Court convicted him of defamation observing :
” It is not necessary in order to establish an offence under s. 500, to prove
that actual harm has been caused. It is sufficient to show that harm to the com-
plainant's reputation was intended or that the accused person had reason to be-
lieve that the imputation made by him would harm the complainant’s reputation,”
and it was held further : “A person would not be entitled to the benefit of excep-
tion I unless he can show the publication was for the public good” (y).

The Allahabad High Court, (Petheram, C. J.) in a case of defamation,
against a judicial officer, for alleging use of abusive language, held that evidence
of particular instances of abusive languages applied by the complainant upon
former occasions to natives appearing in his Court was admissible first as relating
to the question what was the reputation which the defendant was said to have
injured, and secondly because it must be gathered from the document complained
of as a whole, whether it shows a malicious intention or not (z).

The doctrine of privileged publication in defamation in matters of public
interest has been reiterated in the case of Furcell v. Sowler (2 C. P. D. 215), but
it has been observed that where serious and grievous harm had been done to
person’s reputation and for no public good, surely such a publication is not pri-
vileged (a). Regarding the element of malice in ‘ slander,’ Bayley, J., says :
” In an ordinary case of slander (not a case of privileged communication) want

of malice is a question of fact for the consideration of the jury It

is laid down in I Com. Dig. Action upon the case for defamation, that the declara-
tion must shew a malicious intent in the defendant Malice, in common

acceptation, means ill-will against a person, but in its legal sense it means a wrong-
ful act, done intentionally, without just cause or excuse If I

traduce a man, whether I know him or not, and whether I intend to do him an
injury or not, I apprehend the lavJ considers it as done of malice, because it
is wrongful and intentional. It equally works an injury, whether I meant to
produce a injury or not and if I had no legal excuse for the slander, why is he not
to have a remedy against me for the injury it produces ? And I apprehend the
law recognises the distinction between these two descriptions of malice, malice
in fact and malice in law in actions of slander. In an ordinary action for words,
it is sufficient to charge that the defendant spoke them falsely, it is not necessary
to state that they were spoken maliciously” (b).

Where accused, a doctor, published a pamphlet, * Fakir beshe Praner Raja ’
containing certain statements that the complainant, a doctor, rfi furtherance of a
conspiracy drugged the Bhowal Raj Kumar rendering him unconscious and causing
him to be carried to the cremation ground, the Calcutta High Court held the
accused guilty of defamation as there was no justification for the statements com-
plained of (c).

* —

(x) M. Subrao v. MulviKader, (1914) M. W. N. 351.

(y) Madanjit , (1910) 4 Bur. L. T. 48 : 12 Cr. L. J. 120 : 9 I. C. 775.

(z) Laidman v. Hearsey , (1885) 7 A. 906.

(a) Parcell v. Sowler, 1 G. P. D. 781, affirmed on appeal (1877) 2 C. P. D. 215.

(b) „ Bromage v. Prosser , (18^6) 4 Barn, and Cresw. 251 (255).

(c) Puma Chandra Ghose, (1924) 50 C. >59 ; 28 C. W. N. 579 ; 36 C. L, J, 287.

70

1010

THE INDIAN PENAL CODE

[ CHAP, XXI

Where the accused published in the paper of which he was the publisher
and printer, an account of an outrage on a woman alleged to have been perpetrated
by two constables, and was convicted under this section, the Patna High Court
held that in the absence of proof that it was intended to charge any particular
and identifiable constables with the alleged offence, the accused could not be held
guilty of defamation, and further held that the discharge of journalistic duties
does not justify the publication of all cases of rumours, injustice and oppression,
which may not have the effect of seriously injuring the reputation of others without
the least inquiry into its truth (d).

Second Exception : — It is not defamation to express in good faith any opinion
whatever respecting the conduct of a public servant in the discharge of his public func-
tions, or respecting his character , so far as his character appears in that conduct t
and no further.

Dealing with the question of ‘ good faith ’ the Calcutta High Court (Markby,
and Prinsep J J.) held, in a case where the accused was put on his trial for a
defamatory statement contained in a petition to the Magistrate, that the proper
point to be decided was not whether the allegations put forward by the accused
in support of the defamation were in substance true, but whether he was informed
and had good reason after due care and attention to believe that such allegations
were true (e). “ A writer in a public paper has the same right as any other person,
and it is his privilege, if indeed it is not his duty, to comment on the acts of pub-
lic men which concern not himself only but which concern the public, and the
discussion of which is for the public good” (f).

Lord Herschell, L. C., in a case which went up to the Privy Council observed :

* There is no doubt that the public acts of a public man may lawfully be made the
subject of fair comment or criticism, not only by the press, but by all members of
the public. But the distinction cannot be too clearly borne in mind between
comment or criticism, and allegations of fact, such as, that disgraceful acts have
been committed or discreditable language used. It is one thing to comment upon
or criticize, even with severity the acknowledged or proved acts of a public man,
and another to assert that he has been guilty of particular acts of misconduct ” (g).

In the celebrated contempt of Court proceeding against the printer of 4 English-
man ’ newspaper before the Calcutta High Court, Sir Barnes Peacock, C. J., seems
to lay down the complete absence of any misrepresentation of facts or any undue
concealment thereof to be the standard of ‘ fair criticism * in order to get the
benefit of the immunity under any law (h).

Where the editor of a newspaper was accused of defamation for certain remarks
contained in an article, against a certain complainant’s antecedent, the Bombay
High Court upheld the conviction saying : ” The accused was not entitled to the
benefit wihch he claims of the second and ninth exceptions to s. 499 of the Indian
Penal Code, which refer to opinions and imputations expressed and made in good

faith and for public good The statement made by the accused

did not contain the truth, but only half-truths and it was not for public good that
an imputation should be conveyed by a statement which was misleading because it
was incomplete ” (i).

t ,

(d) Govt. Advocate Bihar and Orissa v. Gopebandhu Das. (192 2) 1 P 414

(e) Shibo Prasad Panda, (1878) 4, C. 124.

(f) Per Conch, C. J., in Howard v. Mull, (1866) 1 Bom. H. C. App. 85 (91),

(g) Davis v. Shepstone, (1886) 11 App, Ca. 187 (I90J\

(h) In re Banks and Fentiman, (1869) 26 C. L. J, 401,

(i) Kahde, (1880) 4 B. 298, 4 *

SEC. 499]

OF DEFAMATION

ion

If the comments were made honestly and the accused honestly believed the
facts to be as stated to him and there was no wilful misrepresentation of facts by
him, he would be protected by this exception (j).

Third Exception : — It is not defamation to express in good faith any opinion
whatever respecting the conduct of any person touching any public quest ion t and
respecting his character so far as his character appears in that conduct , and no further.

The Authors of the Code observe : 41 There are public men who are not public

functionaries ; persons who hold no office may yet take a very active

part in urging or opposing the measures in which the community is deeply interested.
It appears clear to us that every person ought to be allowed to comment, in good
faith, on the proceedings of these volunteer servants of the public, with the same
freedom with which he is allowed to comment on the proceedings the official ser-
vants of the public ” (k). Defamatory allegations cannot be justified on the
ground of fair comment when they are based on mis-statement of facts (I).

While the second exception deals with the public conduct of ‘ public servants*,
this exception deals with any opinion respecting the conduct of ‘ any person *
touching any public question.

In order to plead justification the opinion must be fair and honest and must
not be respecting the private character of the person defamed.

Lord Esher, M. R., said : “ Mere exaggeration, or even gross exaggeration

would not make the comment unfair the question which the jury must

consider is this Would any fair man, however prejudiced he may be, however
exaggerated or obstinate his views, have said that which this criticism has said of
the work which is criticised?” (m).

Blackburn, C. J. f seems to lay the right of fair comment in criticism to entitle
one to the * privilege * in libel action in the following words : — 44 It seems to me
that a line must be drawn between hostile criticism on a man’s public conduct and
the motives by which that conduct may be supposed to be influenced, and that you
have no right to impute to a man in his conduct as a citizen, even though it is open
to ridicule or disapprobation — base, sordid, dishonest and wicked motives.” The
observation of Crompton, J., in this connexion is to the following effect : 44 Nothing

is more important than that fair and full latitude of discussion

should be allowed to writers in the public press by way of comment or criticism
on any public matter which may comeT^efore the world whether it be a proceeding
in a Court of Justice or in parliament or the conduct of a public functionary or a
literary work. And it is for the jury to say whether it is a fair comment. But to
my mind a writer is not entitled to go further; and if he oversteps that limit and
imputes to the person whom he is criticising base and sorbid motives which are
not warranted by the facts, I cannot for a moment think that because he believes

bona fide that he is publishing what is true, there is any defence in point of law

Now it is said that there is a general privilege in proprietors of newspapers to publish
articles relating to public matters, if the writer really bona fide believes that what
he writes is true, in other words, this is one of that class of privileged communication
in which the malice of the person become a question to jury. But there is a class
of cases in which from the particular circumstances in which a person is placed, he
is called upon to assert what he believes. And in these cases if an action be brought,
the plaintiff is obliged to prove express malice. I don’t think that there is any such

privilege in the case of a writer in a periodical I have

always in my experience heard It laid down that, although you may attack a public

(j) Howard v. Mull, (1886) 1 Bom. H, C. R. (Cr. C.) 85 (91).

(k) Note R.

(l) Bhagwan Das , (1926)*27 Cr. L. J. 1361 : 98 I. C. 481 (AH.).

(m) . Merivale v. Carson , 20 Q*. B. D. 275 (281).

(n) Campbell y. Spottiswoode, (1863) 32 A. J. Q. B. 185.

1012

THE INDIAN PENAL CODE

[ CHAP. XXI

person for anything he has done publicly, the moment you go beyond that and
impute wickedness to him, then you come within the rule with regard to all those
who publish a libel " (n).

The reason of the decision quoted above has been aptly put in the following
words : “ Every one has a right to comment, both by word of mouth and in writing,
on matters of public interest, and geneal concern, provided he does so fairly and
with an honest purpose . Such comments are not actionable however severe in their
terms, so long as the writer or speaker truly states his real opinion of the matter on
which he comments. Every citizen has full freedom of speech on such subjects ;
but he must not abuse it.

41 It is a defence to an action of libel or slander that the words complained of
are a fair comment on a matter of public interest. But this defence will fail, unless
the words complained of are : —

(1) A comment and not the assertion of some alleged matter of fact;

(2) A comment on some matter of public interest ;

(3) A fair comment, and

(4) A comment published without malice ° (o).

An action of libel will lie at the suit of an incorporated trading company in
respect of a libel calculated to injure its reputation in the way of its business without
proof of special damage (p).

In a leading case on ‘ privilege it has been held that the fair and honest dis-
cussion of comments upon a matter of public interest is in point of law privileged
and is not the subject of an action unless the plaintiff can establish malice (q).
The publication of matter defamatory of an individual is not privileged because the
libel is contained in a fair report in a newspaper of what passed at a public meeting.
Lord Campbell, C. J., observed : M A fair account of what takes place in a Court

of Justice is privileged But it has never been continued

that such a privilege extends to a report of what takes place at all public meetings/’
Similarly, Coleridge, J., expressed his opinion thus : " It has never been laid down
that whatever is said at any meeting held for a public purpose, however injurious,
is public property and may be repeated with impunity M (r). In England these
reports have now been declared to be privjleged by Statutes 44 and 45 Viet.,
c. 60, s. 2.

Fair criticism on matters of public questions, e.£., that by an editor of a news-
paper and regarding medical advertisement, e.g., the establishment of eye-hospital
and soliciting public subscription thereto by a medical man is protected by
Exceptions 3, 6 and 9 of s. 499 of the Penal Code (s).

Where a matter is of public interest, it was held that the Court ought not to
weigh any comment on it in a line scale ; that some allowance must be made for even
intemperate language : provided, however, that the writer keeps himself within the
bounds of substantial truth ; that he does not misrepresent or suppress any facts (t).

The limits o\ fair comment have been laid down by Mr. Justice Maungkin
of the Lower Burma Chief Court in a case of defamation where an editor of a

(o) Odgers on * Libel and Slander, ' 5th Ed., p. 190.

(p) Helton Coal Company v. North Eastern News Association, (1894) 1 Q. B. 133 —

Civil case. c

(q) Henwood v. Harrison , (1872) L. R. 7 C. P. 608.

(r) Joseph Davison v. Duncan, (1857) 7 E. and B. 229 ; Purcell v. Sowler, (1877)
2 C. P. D. 215.

(s) McLeod, (1880) 3 A. 342.

(t) Fernandez, (1911) 13 Bom. L. R. 1187, (118*8), see Edmondson v. Birch

6* Co,, (1907) 1 K. B. 371 (380) ; Muralidhar Jeram Das v. Naraya Das, (1914) 8
S. L. R. 143 : 16 Cr. L. J. 141 : 27 I. C. c 2Qfi>. '

sec* 499 ]

OF DEFAMATION

1013

Rangoon newspaper was the accused in the following terms '* A fair comment
must be based upon facts and a writer is not entitled to invent facts and express
his opinions upon such invented facts. Nor can the conduct of a public man or of a
person in his public character be assailed as dishonest simply because the writer
fancies such conduct is open to suspicion *' (u).

Fourth Exception : — It is not defamation to publish a substantially true
report of a proceeding of a Court of Justice, or of the result of any such proceedings .

Explanation : — A Justice of the Peace or other officer holding an inquiry in an
open Court preliminary to a trial in a Court of Justice is a Court within the meaning
of the above section.

* Court of Justice ' has been defined in s. 20, supra, and it is the addition of the
explanation that protects the true report of a proceeding prior to committal before
a Magistrate.

This exception deals with the same privilege as is extended by the English law.
As Campbell, C. J., held : “ A fair account of what takes place in a Court of Justice
is privileged. The reason is that the balance of public benefit from the publicity
is great. It is of great consequence that the public should know what takes place
in Court ; and the proceedings are under the control of the Judges ” (v).

So Lord Esher M. R., observed : " The rule of law is that where there are
judicial proceedings before a properly constituted judicial tribunal exercising its
jurisdiction in open Court, then the publication without malice of a fair and
accurate report of what takes place before that tribunal is privileged. Under certain
circumstances that publication may be very hard upon the person to whom it is
made to apply, but public policy requires that some hardship should be suffered
by individuals rather than that judicial proceedings should be held in secret. The
common law on the ground of public policy, recognises that there may be greater
danger to the public in allowing judicial proceedings to be held in secret than in
suffering persons for a time to rest under an unfounded charge " (w).

Wilde, B., held : M Such reports only extend that publicity which is so im-
portant a feature in the administration of the law in England, and thus enable to be
witnesses of it not merely the few whom the Court can hold, but the thousands
who can report " (x).

In an action for libel against the proprietor of a newspaper for publishing a
bona fide and fair report of proceedings before a Magistrate, Chief Justice, Lord
Coleridge, observed : “ It has been laid down again and again in broad terms
that the publication of the proceedings of a Court of Justice is privileged if the
report of such proceedings be fair and honest M fy).

Lord Campbell, C. J., in summing up directed the jury as follows : “ By the
law of England, a fair account of what takes place in a Court of Justice may be pub-
lished, but the reporter who gives the account ought not to mix up with it comments
of his own, and if any comments are made, they should not be made as a part of
the report. The report should be confined to what takes place in £ourt, and the two

things, report and comment, should be kept separate In the

present case there is an introductory part, something which does not appear to have
been said at the time, and the insertion of that first part has thrown on the defendant
the necessity of pleading a justification, for as to the report itself it is proved to be

(u) C. S. Appa v. M. P. Marker , (1917) 19 Cr. L. J. 129: 43 I. C. 417 (R.).

(v) Joseph Davison v. Duncan , (1857) 7 E. and B. 229 : 2(i L. J. Q. B. 104,

doubted in Davis v. Duncan , (1874) L. R. 9 C. P. 399.

(w) Kimber v. The Press Association , (1893) 1 Q. 13. 05 (08).

(x) Pophatn v. Pickburn ; 7 H. and N. 891.

(y) . U sillv. Hales , (1878) 3 C. P. D. 319.

1014 THE INDIAN PENAL CODE [CHAP. XXI

correct, and being a fair report of what has occurred in a Court of Justice, it was
published in the exercise of the privilege which exists by law, and which I hope
will always exist in this country — the privilege of giving a fair account of what takes
place in Courts of Justice. The Courts are open to all, but they are of limited
extent, and only a small number of persons can be present in them ; but by means
of the Press, the whole nation is informed of what takes place, and is put in a position
to form an opinion upon the conduct of the jury, the judge and the witnesses ” (z).

Dealing with the question of defamation in publishing a part of a judicial
proceeding. Lord Esher, M. R. observed : “ The rule of law is, that the publication*
without malice of an accurate report of what has been said or done in a judicial
proceeding in a Court of Justice is a privileged publication, although what is Said
or done would, but for the privilege, be libellous against an individual, and
actionable at his suit, and this is true although what is published purports to be
and is a report, not of the whole judicial proceedings, but only a separate part
of it, of the report of that part as an accurate report thereof and published
without malice " (a).

Lord Gimpbell, C. J., observed : “ It is a good defence to an action for a
libel, that it consists of a fair and impartial (though not verbatim) report of a trial
in a Court of Justice, and such defence is admissible under the plea of not guilty. .
and where the report of the law proceedings has mixed up with it commentaries
reflecting upon any of the parties whose names appear in it, it entirely loses the
privilege which it might otherwise claim. It is a good defence to an action for libel
that it consists of a fair, correct, and impartial report of a trial in a Court of Justice ;
and such defence is admissible under the plea of not guilty. Such a report is pro-
tected; bu! if it contains other libellous matter, such as comments reflecting upon
any of the parties whose names appear in it, it entirely loses the privilege which it
might otherwise claim ” (b).

Regarding publication of a portion of a criminal trial by a private individual.
Lord Justice Mellish observed : M I cannot think there is any difference between
the privilege attaching to a report in a newspaper, or in a pamphlet, unless some
question of malice is raised. Of course, if actual malice is alleged, the fact that the
libel was published in a pamphlet and not in a newspaper might be very material,
but when no such allegation is made, I cannot conceive there is any difference.
I also cannot agree that the mere fact that the publisher did not publish the evidence
in full but only the summing up of the Judge and the speech of the prosecuting
counsel made the report of the trial an unfair one M (c).

The publication however of report of the proceedings of a criminal Court
in face of the order of prohibition by the Court, makes the delinquent editor guilty
of contempt and liable to be convicted as such (d).

Abbott, C. J., says : “ There can be no doubt in the mind of the Court or of
any person, acquainted with the law of the country, that if, in the course of a trial,
it becomes necessary, for the purposes of justice, that matter of a defamatory nature,
should be publicly read, it does not therefore follow, that it is competent to any
person, under the pretence of publishing that trial, to re-utter that defamatory
matter. In the case of Rex. v. Creevey , (1 M. & S. 273), the defendant, a member of
Parliament, had made a speech in Parliament, which contained matter of a defama-

(z) Andrews v. Chapman , (1853) 3 C. and K. 280 (288, 289),

(a) Macdougall v. Knight, (1890) 25 Q. B. D. 1, following Macdougall v. Knight,
(1890) 14 A. C. 194.

(b) Lewis v. Levey, (1858) 27 L. J. Q. B. 282.

(c) Milissich v. Lyods , (1877) 13 Cox. 575, following Lewis v. Levy, (1858) 27

J. Q. B. 282.

(d) Clement, (1821) 4 B. and Aid. 218.

OF DEFAMATION

ids

SEC. 419]

tory nature on some individual, and he afterwards thought fit to publish that speech
in a newspaper. Now his privilege as a member of Parliament authorised him to
publish even a correct account of that speech in a newspaper, and the judgment of
the Court followed upon that publication ” (e).

Where a private person applied for a rule for criminal information against the
publisher of the “ Evening News ” for publishing obscene and inflammatory reports
of divorce proceedings of the case of Campbell v. Campbell , the Court refused the
application (f).

Considering the reason for restraining or otherwise the publication of the
reports of a case pending before it, Lord Justice Knight Bruce observed : ‘The
publication may be wise or unwise, full or not full, accurate or inaccurate, but I
don*t think it is a case for an injunction.” He supported Stuart, V. C., who laid

down: “There is no doubt that Court will not permit

its proceedings or any publication of its proceeding to be made the vehicle of a
libel, and it will punish as for a contempt those who make any such publication” (g).

In a case of alleged defamation where the accused, the trustee of a temple, was
charged to have stated at the time of an appointment in connexion with the
temple that the complainant who performed worship in a temple had been convict-
ed and sent to jail for the theft of the idol belonging to the temple, it was held
by the Madras High Court, (Davis, and Benson, J.J.) that “ the statement was
true and the alleged defamatory statement was no more than the publication of the
results of proceedings in a Court of Justice, which is specially declared to be no
defamation by exception 4 to s. 499 of the Indian Penal Code” (h).

Fifth Exception : — It is not defamation to express in good faith any opinion
whatever respecting the merits of any case, civil or criminal , which has been decided
by a Court of Justice , or respecting the conduct of any person as a party , witness or
agent , in any such case , or respecting the character of such person , as far as his
character appears in that conduct , and no further.

This exception also extends the principle of the English law. Fitzgerald, J. f
held: “Every one has a right to discuss fairly and bona fide the administration
of justice as evidenced at the trial. It is open to him to show that error was com-
mitted on the part of the judge or jury ; nay, further, for myself, I will say that
the judges invite discussion of their ‘fccts in the administration of the law, and it is
a relief to them to see error pointed out, if it is committed, yet whilst they invite
the fair discussion, it is not open to a journalist to impute corruption” (i).

So the Authors of the Code observe : “By clause 473 we have allowed per-
sons freely to discuss in good faith the proceedings of Courts of law, and the
characters of parties, agents and witnesses ^ as connected with those proceedings.
It is almost universally acknowledged that the Courts of law ought to be thrown
open to the public. But the advantage of throwing them open to the public will
be small indeed, if the few who are able to press their way into a Court are for-
bidden to report that has passed there to the vast numbers who were absent, or if
those who are allowed to know what has passed are not allowed to comment on
what has passed. The only reason that the whole community is not admitted
to hear every trial that takes place is that it is physically impossible that they should

(e) Carlile's case, (1819)^ B. and Aid. 167.

(f) In re Evening Neivs , (1866) 3 T. L. R. 256, where Stelan v. Brannel, (1872)
L. R. 7 C. P. 269, was cited by Counsel.

(g) Brooke v. Evans , 29 L. J. Ch. 616.

(h) Singaraju Nagabhysanam , (1902) 26 M. 464.

(j) Sullivan, 11 Cox. C. C. 67.

1016 THE INDIAN PENAL CODE [CHAP. XXl

find room ; and by clause 473 we do our best to counteract the effect of this
physical impossibility*’ (j).

The language in this exception is * opinion whatever respecting the merits
of any case, civil or criminal, which has been decided by a Court of Justice. ’ The
words * has been decided * have been advisedly used by the Legislature, as it would
be contempt of Court to comment on a case that is sub judice . As Lord Keynon,
C. J., in an English case observed : “ It is the pride of the constitution of this
country that all cases should be decided by jurors, who are chosen in a manner
which excludes all possibility of a bias, and who are chosen by ballot, in order to
prevent any possibility of their being tampered with. But, if an individual can
break down any of those safeguards, which the constitution has so wisely and so
cautiously erected by poisoning the minds of the jury when they are called upon
to decide, he will stab the administration of justice in its most vital parts. And,
therefore, I cannot forbear saying that if the publication be brought home to the
defendant, he has been guilty of a crime of the greatest enormity” (k).

As the administration of justice is a matter of public interest, the hearing of a
case upon a charge of felony before a Magistrate, or a fair report of it in a news-
paper, is a proper subject for public comment and discussion. And a public
writer, therefore, is privileged in discussing the conduct of the Magistrates, in
dismissing the charge without fully hearing the evidence, and even in commenting
upon the evidence given, in support of the view that the charge ought not to have
been dismissed. But if he goes beyond those limits and not only argues upon the
effect of the evidence given, but attempts to show, from statement of matters of
fact not in evidence, that the charge was well-founded, and that the accused was
guilty, he loses this privilege, and is liable to action (1).

So Cockburn, C. J., said to the jury : “ Now there is no question that in
points of law a report of proceedings in Courts of Justice, if fair, impartial and
truthful, although it may contain matter which if it were not contained in such a
report would be libellous — is privileged.

” If you think that there has only been an error in judgment, with an honest
purpose — that the writer sat down to write a fair and honest comment upon the
case and has done so, and that is a fair comment upon the facts — you must find
for the defendant. But if not, then ask yourselves what is imputed to Mr. Woodgate,
and what must be the effect of such an article^on the minds of those who read it as
to his professional character ; and if you think it is intended to impute such mis-
conduct as is here described, you ought by your verdict to put him right before
the world” (m).

Where the accused spoke to his own pleader about the elopement of the
daughter-in-law of the complaint being the real cause of his dispute with the
complainant, the Calcutta High Court (Caspersz & Ryves J.J.) held that no
offence of defamation was committed, under the circumstances, because the state-*
ment of the accused was made in answer to a natural question put to him by his
legal adviser at a crime when the relationship of legal adviser and client cannot
be said to have ceated (n).

Sixth Exception : — It is not defamation to express in good faith any opinion
respecting the merits of any performance which its author has submitted to the judgment

(j) Note R. — — ^ -

(k) Jolliffe, 4 T. R. 285 (289), cited by Lord Alvkrstone, C. J., in Titbits and
Win dust, (1902) 1 K. B. 77 (86).

(l) Hibbins v. Lee, (1864) 4 F. and F. 243.

(m) Per Cockburn, C. J., in Woodgate v. Ridoitt , (1864) 4 F. and F. 202 (216,

223) ■ •

(n) Bhagirath, 13 C. W. N. 1087.

OF DEFAMATION

SEC. 499 ]

1017

of the public , or respecting the character of the author so far as his character appears
in such performance , and no further .

This exception protects the merits of a public performance and literary
criticism.

This exception extends the principle of English law. As Lord Ellenborough,
C. J., observed : “ Liberty of criticism must be allowed, or we should neither have
purity of taste nor of morals. Fair discussion is essentially necessary to the truth
of history and the advancement of science. That publication, therefore, I shall
never consider as a libel which has for its object not to injure the reputation of
any individual, but to correct misrepresentations of fact, to refute sophistical reason-
ing, to expose a vicious taste in literature, or to censure what is hostile to
morality" (o).

So Cockburn, C. J., said : “ It was of the last importance to literature, and
through literature to good taste and good feeling, to morality and to religion, that
work published for general perusal should be such as were calculated to improve
and not to demoralise the public mind : and therefore it was of vast importance
that criticism, so long as it was fair, reasonable and just should be allowed the
utmost latitude, and that the most unsparing censure of works which were fairly

subject to it should not be held libellous A man who

publishes a book challenges criticism" (p).

The illustration (a) to this exception says the same thing as was enunciated
by Cockburn, C. J., in the above case.

" What is the meaning of fair comment" ? said Lord Esher M. R., " I think
the meaning is this : Is the article, in the opinion of the jury, beyond that which
any fair man, however prejudiced, or however strong his opinion may be, would
say of the work in question ? Every latitude must be given to opinion and to pre-
judice, and then an ordinary set of men with ordinary judgment must say whether
any fair man would have made such a comment on the work. It is very easy to
say what would be clearly beyond that limit ; if, for instance, the writer attacked
the private character of the author. But it is much more difficult to say what
is within the limit. That must depend upon the circumstances of the particular

case Mere exaggeration, or even gross exaggeration

would not make the comment unfair. However wrong the opinion expressed
may be in point of truth, or however prejudiced the writer, it may still be within
the prescribed limit. The question which the jury must consider is this : would
any fair man, however exaggerated or obstinate his views, have said that which
this criticism has said ” (q).

Kennedy J., said: "The comment must be such that a fair mind would use
under the circumstances, and it must not misstate facts because a comment cannot
be fair which is built upon facts, which are not truly stated, and further, it must
not convey imputations of 8n evil sort, except so far as the facts truly stated warrant
the imputation " (r).

In an elaborate judgment, Mr. Justice Batty of the Bombay High Court has
explained the word 4 malice * and 4 what is to be the standard of fair comment*.
His Lordship says : " The word malice, in the legal use of that term is not limited

(o) Tabaft v. Tipper , (1808) 1 Camp. 350.

(p) Strauss v. Francis , (1866) 4 F. and F. 1107 (1113, 1114).

(q) Merivale v. Carson , (1888) 20 Q. B. D. 275 (280, 281).

(r) Per Kennedy, J., in Joint v. Cycle Trade Publishing Co. (1904) 2 K. B. 292
(294), see Ibid , p. 297, explaining McQuire v. Western Morning News Co., (1903)
2 K. B. 110.

1018

THE INDIAN t>ENAL CODE

[ CHAP. XXI

to possibility of feeling but by virtue of its etymological origin, extends to any
stale of the mind which is wrong or faulty (whether evinced in action by excess
or defeat) such as would be unjustifiable in the circumstances and incompatible
with thoroughly innocent intention^. It is not necessary that such impropriety
of feeling should in all cases be established by evidence extrinsic to the comment
which is the subject of the complaint. For whether fair comment is to be regarded
as falling under a branch of the law of privilege or not, it cannot excuse an injury
arising not from the mere act of criticism, but from a state of mind in the critic which
is in itself unjustifiable. And the excuse may be so forfeited either by reason of
an evil intent in him or by reason of mere wrecklessness in making an unwarrantable
assertion. For then the comment would not be fair comment at all. This clearly
follows from the language of the exceptions to s. 499, Indian Penal Code, which
by requiring the good faith, defined in s. 52, excludes all that is done without due care
and attention as well as that done with injurious attention. The requirement of fair
comment described in Thomas v. Bradbury Agnew & Co., Limited, (1906) 2
K.B. arises to criticise and honestly, however adversely, it does not extend to coyer

misstatements of facts however bona fide Protection

must be withheld from what purports to be criticism if it states as a fact to be
inferred from the book criticised an imputation for which the book itself contains
absolutely no foundation whatever. In Merivali v. Carson , (q) Bowen, L. J., said :

“The writer would be travelling out of the region of fair criticism if

he imputes to the author that he has written something which in fact he has not
written.

“ Thus the right involves two essentials ; first, that the imputation should be
comment on the work criticised and second, that it should be fair — that is to say,
that if it proposes to be an inference drawn from the contents of that work, it must
be an inference which it is possible to draw therefrom ** (s).

Seventh Exception : — It is not defamation in a person having over another
any authority either conferred by law or arising out of a lawful contract made with
that other , to pass in good faith any censure on the conduct of that other in matters
to which such lawful authority relates .

Where the guru of N published a notice declaring N to be an outcaste and
sent by post a registered postcard of similar purport to N, it was held by Turner,
C. J., and Muttusami Aiyar, J. of the Madras High Court that the mode of publica-
tion adopted by the defendant, i.e., sending the notice on a postcard vitiated the
privilege and indicated a conscious disregard of the complainant’s legal right and
that therefore legal malice had been made out and the defendant was guilty of
defamation (t). Thus where the spiritual head of a mutt issued an interdict against
the complainant in a defamation case, prohibiting the community of which he was
the head from social intercourse and associations with the complainant and certain
other person, the Madras High Court (Oldfield and Lamsam, J.J.,) held that no
offence was made out and no conviction for defamation could stand under the excep-
tion VII to this section (u). Where the defendant acted honestly in the discharge of
his duties as leader of a caste as he was bound to do, in excommunicating a widow
of Modh Wania Caste, in a caste assembly on the receipt of an annonymous letter
imputing bad conduct to the widow, it was held by the Bombay High Court that

(s) Abdool Waddood Ahmed, (1907) 31 B. 293 (217, 298): 9 Boqi. L. R. 230
(235).

(t) Per Turner, C. J., in Srividya Sankara Narasinha Bharati v. Guruswamulu,
(1883) 0 M. 381 referred to in Krishnasami, (1892) 15 M. 214 (217).

(u) Siikratendra Thirtha Swami v. Prabhu, (1922) 45 M. L. J. 116 : 24 Cr. L J.

325: 72 1. C. 165: A. I. R. (1923) Mad. 587. ,

Sec. 4&9 ]

Of £)Ef AMAtlON

1019

no charge oi defamation could be made out inasmuch as the matter was discussed
at a properly convened meeting where the plaintiff’s near relations were duly sum-
moned and were in fact present, and the occasion was lawful and the privilege was
complete (v). It has been held by the Bombay High Court (Birdwood & Parson,
in a case where the headman of a caste issued a notice to a member of his
caste intimating that reports of the adultery of his daughter with a certain person
had been received and that the father and the daughter should appear before the
headman to clear up her character, that no offence of defamation was com-
mitted as the notice contained no imputation by the signatories to the character of
the daughter but was used in good faith (w).

Where the guru of a caste issued a letter or ajna patra to his disciples, i.e., the
castemen forbidding them to have any sort of intercourse with the complainant
or his wife on the ground of the latter’s adultery with a man of another and a lower
caste, it was held by the Calcutta High Cout (Beverly and Banerjee, J.J.) that no
conviction of guru for defamation can be sustained as “ the statement contained
in the letter issued by the accused was made in good faith for the protection of the
social and spiritual interests of the community and the case therefore came within
the 9th and also the 7th exception to s. 499 ” (x).

Eighth Exception : — It is not defamation to prefer in good faith an accusation
against any person to any of those who have lawful authority over that person with
respect to the subject-matter of accusation .

With regard to this exception, the Authors of the Code observe: — “By
clause 476 we allow a person to prefer an accusation against another, in good
faith, to any person who has lawful authority to restrain or punish the accused “ (y).
It has been held in Dhondu Bapu Gajar s case (z) that ? complaint charging
defamation cannot be dismissed under s. 203, Cr. P. Code, without taking any
evidence, on the ground that the accused is protected by this exception, since
s. 105 of the Indian Evidence Act places the burden of proving the exception on the
accused.

According to the view of the Calcutta High Court as laid down by Sir Ashutosh
Mookerjee, J., in a Special Bench decision, the principle of ‘ absolute privilege*
which is a principle of the English common law does not apply to India in a case
under s. 499. These exceptions lay down a qualified privilege fa). Where the
accused in a pending criminal trial'* made a defamatory statement in bad faith in a
petition to the District Magistrate to transfer the case, the Calcutta High Court
(Sharfuddin & Cox, J.J.) held that no absolute privilege extends to such a case but
it is punishable under s. 499 (b). The Patna High Court in Kara Singh's case (c),
and the Allahabad High Court in Ganga Prasad's case (d) have held the same view.
The Bombay (e) and Madras High Courts (f) have taken a different view. They

(v) Kesavlal v. Baigiria, (1899) 24 B. 13.

(w) Bhikaji , (1884) Rat. Unrep. Cr. C. 387.

(x) Basumati Adhikarini v. Budran Kolita, (1894) 22 C. 46, following Srividya
Sankara , (1883) 6 M. 381 and Kashinath Bachaji Bagul, 8 Bonj. H. C. Cr. C. 168.

(y) Note R.

(z) (1927) 29 Bom. L, R. 713.

(a) Satis h Chandra Chakrav arty v. Ramdoyal De, (1920) 48 C. 388 (S. B.) :
24 C. W. N. 982 : 32 C. L. J. 94 : 22 Cr. L. J. 31 : 69 I. C. 143.

(b) Kori Singh , (1921) 40 C. 433 : 17 C. W. N. 449.

(c) (1926) 7 P. L. T. 687 : 27 Cr. L. J. 1320 : A. I. R. (1926) Pat. 1425.

(d) (1907) 29 A. 685. •

(e) Babaji, (1894) 19 B. 207 ; Balkvishna, (1892) 17 B. 127, overruled in
Baisshanlo v. Umrao Amir t (1925) 50 B. 162 : 28 Bom. L. R. 1 : 27 Cr. L. J. 423 :
A. I. R. (1926) Bom. 141 (F. B.).

(f) In re Venkata,, Reddy t (1911) 36 M. 216 (F. B.) ; Sullivan v. Norton, (1887)
10 M, 28 ; Re Muthusdmi Naidu, (1912) 37 M. 110.

1020

THE INDIAN PENAL CODE

[chap, xxi

favour the view of the doctrine of * absolute privilege * which is noticed under a
separate heading under this section under the ninth exception. See commentary
under the heading of 4 Absolute Privilege/

The Madras High Court, in the Full Bench case of Venkata Reddy , extends the
doctrine of absolute privilege to a case where a person charged with the offence
made a statement in answer to a question put by the Court even though it is defa-
matory to one of the witnesses (0* This view and the view taken in In re Muthu~
swami Naidu (h) have been overruled in a later Full Bench decision of the same
High Court in Tiruoengada Mudali v. Tripurasundari Ammal (i), where it has
been held that defamatory statements in complaints to Magistrates are not ab-
solutely privileged, unless they are made in good faith, the complainant being
guilty of defamation.

Where the accused submitted a petition against the complainant, a sub-inspector
of police, to the Inspector-General of Police, containing defamatory charges of
bribe, corruption, extortion, etc., and where it was found that good faith has not
been made out in making those allegations, the Allahabad High Court held that the
privilege under exception eight cannot be claimed and the charge of defamation had
been made out (j).

Where the accused told something to his friend, a railway officer, against his
wife and then reported the matter to the official superior of the officer in question,
it was held by the Calcutta High Court that no charge of defamation could be sub-
stantiated against the accused at the instance of the railway officer inasmuch as
what the accused stated was in good faith and there was no malice (k).

The Bombay High Court has laid down that a letter written by a Brahmin
to the Brahmin community with a view to obtain their decision on a matter affecting
his own religious interests and that of the Brahmin community, if written in good
faith, is not defamatory and falls within the Exceptions 8 & 10 of this section (1).

Statement under 8. 342, Cr. P. Code, not protected -The Bombay
High Court by a Full Bench decision in Bai Shanta v. Umrao Amir (m) has
held that statements under s. 342, Cr. P. Code, are not absolutely protected. The
Allahabad High Court has held that a false and defamatory statement in the
examination of the accused, if not absolutely privileged, cannot be the subject
matter of his prosecution (m 1 ). ^

Statements when absolutely pri vileged Statements , if defamatory,
contained in a petition addressed to a Magistrate might not be absolutely privileged
for a criminal Court, but the privilege is absolute in a Court of civil jurisdiction (n).

The 8th and 9th exceptions should be considered even if the accused did not
specifically rely on them, provided of course that the facts give rise to a consideration
of these exceptions (o).

(g) Ibid .

(h) (1012) 37 M. 110 : 13 Cr. L. J. 293 : 14 I. C. 757.

(i) (1926) 49 M. *728 : 51 M. L. J. 112 : (1926) M. W. N. 606 : A. I. R. (1026)
Mad. 906 (F. B.).

(j) Dhum Singh, (1884) 6 A. 220 (222).

(k) Grant, (1906) 11 C. W. N. 390.

(l) Kasinath Bachaji Bagul , (1871) 8 Bom. H. C. R. Cr. C. 168, followed in
Bashumati v. Budram, (1895) 22 C. 46.

(m) (1925) 50 B. 162 : 27 Bom. L. R. 1 : A. I. R (1926) Bom. 141 (F. B.).
(ml) Murli Pathak, (1027) 50 A. 169; see Colonel Bholanath , (1928) 26

A. L. J. 1334.

(n) Mohammad Samiullah Khan v. Bishu Nath, (1927) 26 A. L. J. 760 : (Civil
case).

(o) Muhammed Gul v. Haji Fazley Karim, (1929) 5b C* 1013.

SEC. 499 ]

OF DEFAMATION

1021

Ninth Exception : — It is not defamation to make an imputation on the
character of another , provided that the imputation be made in good faith for the
protection of the interest of the person making it, or of any other person, or for the public
good

Sir Ashutosh Mukerjee, J., in delivering the judgment of the Court in the
Special Bench decision in Satish Chandra Chakravarty v. Ramdoyal De (p) held as
follows: — “ We have consequently to Examine the provisions of the two excep-
tions (8th and 9th) ; but it is plain that neither of them formulates any rule of abso-
lute privilege. The eighth exception refers to accusations preferred in good faith
to an authorised person. The ninth exception refers to imputations made in good
faith by persons for protection of their interest and for the public good ’’ (p).\

When a lawyer is acting in the course of his professional duties and is thus
compelled, subject to the disciplinary action of the Court, to put forward everything
which may assist his client, good faith is to be presumed and bad faith is not to be
assumed merely because the statement is prima facie defamatory, but that there
must be some independent allegation and proof of private malice from which in the
circumstances of the case the Court considers itself justified in interfering that the
statement was not made because it was necessary in the interests of the client but
that the occasion was wantonly seized as an opportunity to vent private malice (q).

Absolute privilege: — The doctrine of ‘Absolute Privilege’ does not apply
to cases of ‘ defamation ’ under the Indian Penal Code. However, the English
law is quoted here in order that the English Judges who have got to administer the
law in this country might refer to the English law on this subject.

Odgers says: “ It is a defence to an action of libel or slander to prove that
the circumstances under which the defamatory words were written or spoken were
such as to make it right that the defendant should plainly state what he honestly
believed to be the plaintiff’s character, and speak his mind fully and freely con-
cerning him. In such a case, the occasion is said to be privileged, and though
that statement may at the trial be proved or admitted to be erroneous, still its
publication on such privileged occasion is excused for the sake of common con-
venience, and in the interest of society at large.

" Privileged occasions are of two kinds : —

(f) Those absolutely privileged ;

( ii ) Those in which the privilege is but qualified (r).

Sir Ashutosh Mukerjee, J., in the Special Bench decision of * Satish Chandra
Chakravarti v. Ramdoyal De (p) has reviewed all the decisions of the other High
Courts on this point and summarised the law as follows: — “(I) If a party to a
judicial proceeding is prosecuted for defamation in respect of a statement made
therein on oath or otherwise, his liability must be determined by reference to the
provisions of s. 499 I. P. C. Under the Letters Patent, the question must be solved
by the application of the provisions of the Indian Penal Code, and not otherwise ; the
Court cannot engraft thereupon exceptions derived from the common law of England
or based on grounds of public policy. Consequently, a person in such position is
entitled only to the benefit of the qualified privilege mentioned in s. 499 I. P. C.

(p) Satish Chandra Chatirabarty v. Ramdoyal De, (1920) 48 C. 388 : 24 C. W. N.
982 (986) : 32 C. L. J. 94 : 22 Cr. L. J. 31 : 59 I. C. 143 ; followed in Nirsu Narayan
Singh, (1926) 6 P. 224 ; Champa Devi v. Pirbhu Lai, (1925) 24 A. L. J. 319 ; Peddabu
Reddi v. Veranda Reddi, (1928) 52 M. 432.

(q) Mir Anwaruddin^v. Fatima Bai, (1926) 50 M. 667 (671) : (1927) M, W, N.
10*:. 62 M. L. J. * 209.

(r) Odgers “Slander and Libel" 5th Ed. 227,

1022

THE INDIAN PENAL CODE

[CHAP. XXI

“ (2) If a party to a judicial proceeding is sued in civil Court for damages . for
defrm&tion in respect of a statement made therein on oath or otherwise, his liability
in the absence of Statutory rules applicable to the subject must be determined with
reference to principles of justice, equity and good conscience. . There is a large
preponderance of judicial opinion in 5 ' favour of the view that the principles of justice,
equity and good conscience applicable in such circumstances should be identical
with the corresponding relevant rules of the common law of England. A small
minority favours the view that the principles of justice, equity and good conscience
should be identical with the rules embodied in the Indian Penal Code. Tested in
the light of the first rule just formulated, it is plain that the question of good faith
is material and as the disputed statements are not absolutely privileged, the proceed-
ings cannot be quashed at this state.”

Privilege of the Press:— Their Lordships of the Judicial Committee in
the case of Arnold, the editor of the ‘ Burma Critic, ’ convicted him under s. 500
of having defamed in the same newspaper Mr. G. P. Andrew, a member of the
Indian Civil Service by the publication of two articles entitled, “ A mockery of
British Justice”, and the article proceeded to “speak out against those officials
who have forgotten their duty and have dared to trifle with the fair fame of Eng-
land ** and went on, “ the facts before us indicate that Mr. Andrew conspired with
Mr. Jinnie |q burke the case; that he conducted it in camera ” etc., field : ” Their
Lprcfahips regret to find that there appeared on the one side in this case the timeworn
fallacy that some kind of privilege attaches to the profession of the Press as dis-
tinguished from the members of the public. The freedom of the journalist is an
ordinary part of the freedom of the subject, and to whatever length the subject in
general may go, so also may the journalist, but apart from the statute-law, his
privilege is no other and no higher. The responsibilities which attach to his power
in the dissemination of printed matter may, and in the case of a conscientious
journalist do, make him more careful; but the range of his assertions, his cri-
ticisms or his comments, is as wide as, and no wider than, that of any other subject.
No privilege attaches to his position” (s).

Privilege of Judge, Counsel, Pleaders, Solicitors, Parties and
Witnesses: — Sir Ashutosh Mookerjee, J., pointed out in the Special Bench
decision of Satish Chandra v. Ramdayal (p)j as follows ; — “ When the Law of
Torts has not been codified and cases of civil liability for damages have been left
to be decided according to rules of justice, equity and good conscience, it is not
surprising to find that the law of civil wrongs as administered in British India
Courts has been practically taken in its entirety from the common law of England ;
the only justice, equity and good conscience which Judges steeped in the principles
of English jurisprudence could and did administer in default of any other rule
was so much of English Law and usage as seemed reasonably applicable in this
country. A familiar illustration of this is afforded by the judgment of the Judicial
Committee in the case of Gunnesh Dutt Singh v. Mugneram Choudhury , (1872)
1 1 Beng. L. R. 321 ; 1 7 W. R. 283, (Civil) where the principle that witnesses cannot be
sued in a civil Court for damages in respect of evidence given by upon them oath in
a judicial proceeding was enunciated in the following terms in affirmanceof the
decision of this Court in Magnee Ram v. Ganesh Dutt , (1866) 5 W. R. 134 : ‘Their
Lordships hold this maxim which certainly has been recognised by all the Courts of
this country, to be one based upon principles of public policy. The ground of it is
this, that it concerns the public and the administration of justice that witnesses

(s) Charming Arnold (1914) 41 I. A. 149 ; 41 C. 1023 : 20 C. L. J. 161 : 18

C. W. N. 786 : (1914) M. W. N. 606 : 26 M. L. J. 621 : 1€ M. L. T. 76 : 12 A. I. J.
1042 : 16 Bom. L. R. 644 ; 7 Bur. L, T. 167 ; 8 L. B. R. 16 : \L Cr. L. J. 309 r 23
I. C. 661 (P. C.). t * '

SEC. 499 ]

OF DEFAMATION

1023

giving their evidence on oath in a Court of Justice should not have before their
eyes the fear of being harassed by suits for damages ; but that the penalty which
they should incur if they give evidence falsely should be an indictment for perjury’.

“This, in the absence of legislation on the subject of civil wrongs, is, if we
may say so without impropriety, a perfectly legitimate process ; but if we were
to read into the provisions of the Indian Penal Code an exception which finds no
place therein, as the Court was invited to do In re Nogarji Trikamji , (1894)49
B. 340, where Counsel relied upon the lucid statement of Brett, M. R., in Munster
v. Lamb , (1883) 11 Q. B. D. 588 (603) as to the immunity enjoyed by Judges,
counsels and witnesses under the common law the operation would in essence
be legislation in the guise of judicial interpretation. This, as we shall next see,
is precisely what happened in some of the cases in the books. We may add that
no question has been or indeed could be raised as to the prerogative and power
of the legislature to discard the principles of the common law, wholly or partially,
and its enactments, to embody other rules which it prefers. See the observations
of Lord Atkinson in Rodriguez v. Speyer Bros., (1919) App. Cas. 59 (90) where the
reason for the rule of immunity of Judges, Advocates and witnesses is lucidly
stated” ft). See commentary supra under the eighth exception.

Privilege of Judge s — Kelly, C. B., held as follows : — “A series of decisions
uniformly to the same effect, extending from the time of Lcrd Coke t<*the present
time, establish the general proposition that no action will lie against a Judge for
any acts done or words spoken in his judicial capacity in a Court of Justice - • • * * •
It is essential in all Courts that the Judges who are ap-
pointed to administer the law should be permitted to administer it under the
protection of the law independently and freely, without favour and without fear.
This provision of the law is not for the protection or the benefit of a malicious or
corrupt judge but for the benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with independence and without
fear of consequences” (u).

In an action for libel, before the King’s Bench Division, the defendants were
charged with publishing the libel maliciously intending to injure the character cf
the plaintiff. The defence plea stated that the libel contained a true account of
some proceedings which took place before the Lord Mayor-elect. But it ap-
peared that those proceedings were not in any way connected with the judicial or
magisterial character of the Lord Mayor-elect. The jury had found by their
verdict on the other issues that the facts stated in the libel were untrue. Under
such circumstances, Holryod, J. observed : “ Such plea is no answer to the action”.
Abbott C. J. observed : “ I am of opinion, therefore, that it is no answer to the
action that the matter published by the defendants was a correct report of what
actually took place in the presence of the Magistrate, inasmuch as it appears that
he was not then called upon to act either in a judicial or magisterial capacity and
secondly that there is not a privileged publication on the ground that the defendants
at the time of the publication named the party who originally uttered slander.
The rule for entering judgment must be made absolute” fv).

S. 77 of the Code protects a Judge for an act done by him when acting judicially
in the exercise of any power which is, or which in good faith he believes lo be, given
to him by law.

_ — <• — — —

(t) Satish Chandra Chakraverty v. Ramdoyal De t (Hf20) 48 C. 388 (409, 410) :

24 C; W. N. 982 (992, 993) : 32 C. L. J. 94 (108, 109)*: 22 Cr. L. J. 31 : 59 I. C.

143.

(u) Scott v. Stansfield^ 1773) L. R. 3 Ex. 220, see Per Brett, M. R., in Munster
v. Lamb , (1883) 11 0* B. D. 588<603, 008).

(v) McGregor v. Thevaits , (1824) 3 B. tnd C. 24.

1024

THE INDIAN PENAL CODE

[CHAP. XXI

If defamatory language were used by a Judge to a person out of Court, when
not sitting or actually officiating as a Judge, no sanction under s. 197 of the Code
of Criminal Procedure Code would be required; but the case would be different
if the same words were used by the Judge in the course of the trial of a suit.

In a civil case the Madras High Court held that an action for slander cannot be
maintained against a Judge for words used by him whilst trying a cause in Court
even though such words were alleged to be false, malicious and without reasonable
cause (x).

Privilege of Counsels, Advocates and Pleaders in India:— The Master
of the Rolls referring to Dawkins v. Rockby, (L. R. 8 Q. B. 255) and other cases
says : “ If it is right and wise that such a privilege shall be extended to a Judge

and it the privilege is equally given to a witness how

can it be considered that it is not equally, I would say more, beneficial to the public
that a Counsel and an Advocate should come to the performance of his duty with
an equally free and unfettered mind ? If any one needs to be free of all fear in the
performance of his arduous duty , an advocate is that person . His is a position of
difficulty ; he does not speak of that which he knows, but he has to argue and
support a thesis which it is for him to contend for; he has to do this in such way
as not to degrade himself ; but he has to do it under difficulties which are often
pressing. If in this position of difficulty, he has to consider whether everything
which he uttered were false or true, relevant or irrelevant, he could not possibly
perform his duty with advantage to his client ; and the protection which he needs
and the privilege which must be acceded to him is needed and accorded above all
for the benefit and advantage to the public” (y).

When Mr. Eardley Norton, a member of the English Bar, was called upon to
explain his conduct for having made, during the trial of a case , charged against
Mr. Sullivan, senior Member of Council and a member of the Madras Civil Service
of a grossly defamatory character, a Full Bench of the Madras High Court following
the decision of Brett, M. R., cited above, held that an advocate in this country cannot
be proceeded against either civilly or criminally for words uttered in his office as
an advocate (z). This Full Bench decision of the Madras High Court was followed
by a Full Bench decision of the Bombay High Court in a case of professional mis-
conduct under s. 10 of the Letters Patent against Mr. Wadia, an advocate of the
same Court. Jenkins, C. J., disapproved of the conduct of Mr. Wadia, but on the
question of principle, held that the privilege of an advocate in this country is the
same as in England (a).

The Bombay High Court held that where express malice is absent (and it ought
not to be presumed) the Court should not deprive a oleader of the protection of the
exception (b). The Patna High Court in Nirsu Narayan Singh’s case (c) has held
that the question of proof of malice is one of law.

Where a pleader is charged with defamation in respect of words spoken or
written performing his duty as a pleader, the Court ought to presume good faith,
and not hold him qirminally liable unless there is satisfactory evidence of actual
malice and unless there is cogent proof that unfair advantage was taken of his
position as a pleader for an indirect purpose. Where, therefore, a pleader acting

(w) In re Gulam Muhammad , (1886) 9 M. 439.

(x) Raman Nayar v. Subramania, (1893) 17 M. 87.

(y) Per Brett, M. R., ip Munster v. Lamb , (1883) II Q. B. D. 688. .

(z) Sullivan v. Norton, (1886) 10 M. 28 (F. B.) Tiruvengada Mudali v. Tripura

Sundari Animal, (1926) 49 M. 728 (F. B.). 1

(a) Bhai Sankar v. Wadia, (1899) 2 Bom. L. R. 3 (F. B.).

(b) Nagarji Trikamji , (1894) 19 B. 340. ,

(c) (1926) 6 p. 224 :7 P. L. T. 608 : 27 Cr. L. T* 1090 ; 97 J. C. 364 : A- I. R.

(1926) Pat. 479. «

SEC. 499 ]

OF DEFAMATION

1025

upon his own recollection of the evidence given by a witness two years before, in
another case in which he was a pleader, but drawing a wrong inference therefrom
that the witness had been disbelieved by a particular Court, and had admitted to
having been so disbelieved, puts questions to him conveying such an imputation,
after being warned that his impression was wrong, he cannot, in the absence of
actual malice, be convicted of defamation (d). - "

Where a District Court pleader appearing for the defence put the following
questions when cross-examining a witness under instructions : — “ Do you drink
or smoke ganja ” to which the witness replied in the negative and thereafter the said
witness filed a complaint against the pleader under s. 500 of the Code. On reference
by the Sessions Judge, the Calcutta High Court held that a pleader is entitled to the
presumption that the questions he asks in cross-examination are asked in good faith
for the protection of the interest of his client and to rebut this presumption it
is not sufficient merely to allege that the client knew the imputation to be untrue,
for the duty of the pleader is to present his client’s case, but there must be convinc-
ing evidence that the pleader was actuated by an improper motive, personal to
himself and not by a desire to protect or further the interests of his clients in the
cause (e).

Where a pleader asked a witness who was a defendant in a civil suit in the
capacity of a Muktear, whether he was a thief and gambler and dined with prosti-
tutes and whether his wife was leading the life of a prostitute, held, the pleader had
acted in bad faith as the witness was well-known in the town where the pleader
resided and the latter must have known of his reputation and character and that
his conviction was right (0- In M. Banerji's case (g), it was held that the presump-
tion is that the remark or question (put by an Advocate in cross examination) object-
ed to was made on instructions and in good faith.

When a complaint is made against an advocate or legal practitioner for defa-
mation in respect of a statement made in the course of a judicial proceeding it is the
duty of the Court to presume that the statement was made on instruction and in
good faith and for the protection of his client’s interest and that unless circumstances
clearly show that the statement complained of as defamatory was made wantonly
or from malicious or private motive, the complaint should not be entertained (h).

It has been held in Nirsu Narayoji Singh's case that the burden is upon the
prosecution to prove absence of good faith (i).

Privilege of Witnesses t—' Their Lordships of the Judicial Committee have
held that the rule of common law that a witness is not liable to civil action for
defamatory, words spoken in the course of his evidence applies to India (j). The
Bombay High Court has held : 44 Without however importing into this carefully
considered Statute,, the rules of the common law of England based on public
policy, we are of opinion that a witness in India is adequately protected by the Ex-
ceptions 8 to 9 in s. 499, where the defamatory statement is not untrue to the

(d) Upendra Nath Bagchi, (1909) 36 C. 375 : 13 C. W. N. 34o! — —

(e) Nikunja Behari Sen v. Harendra Chandra Sinha, (1913) 41 C. 514, following
Upendra Nath Bagchi , (1909) 36 C. 375 : 13 C. .W. N. 340 ; Purosholtam Das Dane ho das
(1907) 9 Bom. L. R. 1287 ; McDonell, (1925) 3 R. 524 : 27 Cr. L. J. 321, followed
in Mir Anwaruddin v. Fatima Bat Abidin (1926) 50 M. 667 : 52 M. L. J. 269; M,
Banerjee, (1927) 55 C. 85 : 46 C. L. J. 226.

(f) Fakir Prosad Ghose, (F926) 54 C. 137.

(g) (1927) 55 C. 85 : 46 C. L. J. 226 ; Nazir Ahmed v. Jogesh Chandra Banerjee ,
(1928) 29 Cr. L. J. 839.

(h) McDonell, (1925) 3 R. 524.

(i) (1926) 6 P. 224 : 27 Or. L. J. 1090.

(j) Ganesh Dutt v. MugneercJm, 11 Beng. L. R. 321 (P. C.)

71

1026

THE INDIAN PENAL CODE

[CHAP. XXI

knowledge of the person making it M (k). It has been heldin many cases that no
action will lie against a witness for making a false statement in the course of a. judi-
cial proceeding, even though it is alleged to have been done falsely and maliciously
and damage results therefrom to the plaintiff, the pfoper course being a prosecution
for perjury (1). *■

Relevant statements made by a witness in a judicial proceeding are not abso-
lutely protected from being made the subject of a prosecution for defamation under
s. 500 on grounds of public policy or exceptions derived from the common
law of England apart from the previsions of this section (m).

The Calcutta High Court in an earlier decision, following the case of Seamen
v. Netherclift , (L. R. 2 C. P. Division, 53), held that a witness is absolutely pri-
vileged as to anything he may say as a witness having reference to the enquiry on
which he is called as a witness (n). The Allahabad High Court in an early case
held that the analogies of the English law furnish a good guide and on that analogy
held that the statement made by a witness while deposing in the witness box was
absolutely privileged (o). Richards, J., held that a prosecution for defamation
will not lie against a witness in respect of any statement made by him in the course
of giving evidence even if such statement may not be relevant to the matter under
enquiry, but Knox, Acting C. J., after a careful consideration of the authority of
all the High Courts held that the observations of the Privy Council in Ganesh Dutt
Singh v. Magneeram Choudhury , (1872) II Beng. L. R. 321, were really obiter
dicta and held a contrary view (p). In a Special Bench decision of the Calcutta
High Court, Sir Ashutosh Mukerjee, J., after reviewing all the decisions noted
above and other decisions, concluded that the common law doctrine of absolute
privilege does not apply to the Indian law of defamation as embodied in s. 499 (q).

A person using defamatory expressions for the protection of his son's interests
is not privileged, unless the imputation is made in good faith, i.e., with due care
and attention (r). It has been held by the Calcutta High Court that a witness
maliciously making a voluntary and irrelevant statement not elicited by any ques-
tion put to him, while under cross-examination, to injure the reputation of another,
commits an offence punishable under s. 500 (s). Where a person makes a defama-
tory statement as a witness in a judicial proceeding, he is not exempted from cri-
minal liability under this section unless hia statement is covered by any of the
exceptions to the section (t). A witness has no greater protection against a charge
of defamation than any other person and a witness, in order to be protected from
a statement prima facie defamatory made by him, must bring himself within one

(k) Nagarji Trikamji , (1894) 19 B. 340 (348).

(l) Chidambara v. Thiramani, (1887) 10 M. 87 ; Baobu v. Lesiter , 7 C. B. N. S.

187.

(m) Bai Shanta v. Umrao Amir, (1925) 50 B. 162 : 27 (F. B.) Bom. L. R. 1 :
A. I. R. (1926) Bom. 141 (F. B.,) overruling Babaji, (1892) 17 B. 127 and Balkrashint
Vithal, (1892) 17 B. 573 but, following in Satish Chandra Chahravarty v. Ramdayal
De, 48 C. 388 (S. I\) : 24 C. W. N. 982.

(n) Bhikumbar Singh v. Behanarain, (1888) 15 C. 264.

(o) Dewan Singh v. Mahadip Singh , (1887) 10 A. 425.

(p) Ganga Prasad , (1907) 29 A. 685.

(q) Satish Chandra Chakraverty v. Ramdayal De, (1921) 48 C. 388 : 24 C. W. N.
982 : 32 C. L. J. 94 (S. B.)

(r) Pursoram Doss, (1865) 3 W. R. (Cr.) 45.

(s) Haider Ali v. Abru Mia, (1905) 32 C. 756. «*

(t) Miron Shah, (191 2) P. L. R. No. 244 of 1912 : P. W. R. No. 31 of 1921

(Cr.) : P. R. No. 5 of 1913 : 13 Cr. L. J. 494 : 15 I. C. 494, following Fateh Mohammad
v. Empress, 34 P. R. 1889 (Cr.) : Maya Das v. Queen Empress, 14 P. R. 1893 ; Emp.
v. Ganga Prosad, (1907) 29 A, 685 : (1907) A. W. N. 23$ : 4 A. L. J. 605 : 6 Cr. L. J.
197. • * .

SEC. 499 ]

OF DEFAMATION

1027

or more exceptions to s. 499 (u). The Bombay High Court has held that the
protection which may be given upon principles of public policy to a witness can-
not be given to a complainant who when asked by the Magistrate to state his
grievance deliberately makes a? defamatory statement without the slightest justi-
fication (v). Where a witness for the defence in a theft case made a defamatory
statement against the complainant, it was held by the Allahabad High Court that
his statement amounted to defamation and he might be prosecuted under this
section (w). A witness who has made a statement in the course of his deposition
defamatory to another person, if he can claim the protection of this section, is
absolutely safe so long as he has told the truth. If he has said what is not true,
he can be prosecuted for giving false evidence (x). The Allahabad High Court
has held that a witness in a civil suit cannot be prosecuted for defamation in re-
spect of an answer made by him to a question asked by the Court (y), but where
a party to a civil suit, who was bound to state the truth, in answer to questions
by the Court, made a defamatory statement, is prosecuted under this section, the
Madras High Court held that it is contrary to public policy to convict him for
defamation (z).

Statement to the Police : — Where in an investigation before a police officer,
the defendant in an action for damage made defamatory allegations against the
plaintiff, the Calcutta High Court (Hill and Harrington J.J.) observed : “ In the
present case the investigation was required by lav/, it was conducted under the
provisions of the law, it was ancilliary to the administration of justice. The
defendant was bound by law to answer all questions put to him by the police-officer
conducting the investigation, and was punishable if he answered untruly and what
was said by him had reference to the matter under investigation. Virtually the
only distinction between his position and that of an ordinary witness arises from
the fact that his statement was not made in a Court of Justice and we see no reason
accordingly, in the language of the Lord Baron cited in Dawkins v. Rockby , L. R.
7 H. L. 744, why public policy should not equally prevent an action being brought
against him as against a witness in an ordinary Court of Justice’* (a).

The Allahabad High Court has held that the statements to the police taken
under s. 154 or 155 are privileged statements and cannot be made the foundation
of a charge of defamation (b).

Statement in an Affidavit : — A person would be rightly convicted under
s. 500 for making a defamatory statement in an affidavit if the statement made
was wholly irrelevant to the inquiry to which the affidavit related (c).

Parties: — A Full Bench of the Madras High Court has held that neither
party, witness, counsel, nor Judge can be held liable for defamation on account

(u) Muhammad Sher AliKhan v. Ghasi Ram, (1920) 22 Cr. L. J. 159 : 59 I. C.

863.

(v) Dinshaw Edalji Karkaria v. Jehangir Cowasji Mistri, (1922) 47 B. 15: 24
Bom. L. R. 400 : 23 Cr. L. R. 654.

(w) Ganga Prasad, (1907) 29 A. 685.

(x) Kallu, (1918) 40 A. 271 (276) : 16 A. L. J. 201 : 19 Cr. L. J. 231 : 43 I. C.
823, following Ganga Prasad , (1907) 29 A. 685.

(v) Ganga Sahai , (1920) 42 A. 257 ; and Cliatur Singh , (1920) 43 A. 92 not followed
in Pedabba Reddi v. Varada Reddi, (1928) 52 M. 432 : (1929) M. W. N. 84.

(z) In re Alraja Naidu, (3&06) 30 M. 222, following Manjaya v. Sesha Shetti,
(1888) 11 M. 477.

(a) Methuram Dass v. Juggarnath Dass, (1900) 28 C. 794 (797).

(b) Parwari , (1919) 41 A. 311, following Govinda Pillai, (1892) 16 m, 235;
Manjmav . Sesha Shetti , (1888) 11 m. 477.

(c) . Giribala Das si V- PramKristo, (1903) 8 C. W. N. 292,

1028

THE INDIAN PENAL CODE

[CHAP. XXI

of words spoken or written in any proceeding before a Court recognized by law
and that such statement must be regarded as absolutely privileged (d).

A defamatory statement made by a person opposing theregistration of a will
in his petition to the Registrar objecting to the registration is not absolutely
privileged fe).

Where a statement was made by a party in a civil proceeding in good faith
and for the protection of some interest in the cause, it has been held by the judicial
Commissioners of Nagpur that under any view of the law taken by the High
Court in this country it was privileged. Express malice would have to be proved
for the applicant in defamation cases to succeed in such a case (f).

The Madras High Court by a Full Bench decision in Tiruvengada Mudali v.
T ripurastindari Ammal (g) has overruled the view taken in In re. Venkata Reddy , (h)
followed in In re. Muthusami Naidu (i) which held that a defamatory state*
ment in a complaint to a Magistrate is absolutely privileged.

While an application and counter-application to prevent a breach of the peace
were being investigated into by the police, the accused called the complainant a
* rogue " and said that the complainant had swindled a relation of his to the extent
of Rs. 1000. The complainant charged the accused in defamation in that he was
called a * rogue ’ by the accused. It appeared that some four months previously,
the complainant was convicted at the instance of the accused. The Bombay
High Court in setting aside the conviction of the accused held that the accused
was protected under 9th exception as the statement was made apparently in the
protection of his own interest and when his application was under investigation
by the police (j).

Dealing with the question of privilege with regard to a statement made in the
pleadings , the Calcutta High Court observed : “ There is nothing in any one of the
exceptions which can be strained, so as to include any statement, whether relevant
or not, which may be inserted in a plaint, or written statement, or application to a
Court, though it may well be that statement which is essential to the cause of
action or to the defence is protected by the 9th exception, but that exception

cannot help ..where the statement complained of is not material to

the cause of action in any way and if untrue a mere gratuitous result” (k). Follow-
ing this decision and other cases of the same Court, the Calcutta High Court held
that the question of privilege must be decided by the terms of s. 499 (I).

The English doctrine of absolute privilege does not obtain in the Mofusil
Courts in India (m).

(d) In re. Venkata Reddy , (1911) 36 m. 216 (F. B.) : 1912 M. W. N. 476 : 23
M. L. J. 39 : 11 M. L. T. 416 : 13 Cr. L. J. 275 : 14 I. C. 659.

(e) Krishnammal v. Krishna Iyengar , (1912) M. W. N. 473 : 23 ]Vf. L. J. 50 : 13
Cr. L. J. 508 : 15 I. C. 652.

(f) Baija v. Babu, (1917) 19 Cr. L. J. 641 : 45 I. C. 833.

(g) (1926) 49 M. 728 : 51 M. L. J.112 : (1926) M. W. N. 606 : A. I. R. (1926)
Mad. 906 (F. B.).

(h) (1911) 3 6 M. 216 : 23 M. L. J. 39 : (1912) M. W. N. 476 : 13 Cr. L. J.
(F. B.).

(i) (1912) 37 M. 110 : 11 M. L. T. 431 : 13 Cr. L. J. 293 : 14 I. C. 757.

(j) Esufalli Abdul Hussain, (1918) 20 Bom. L. R. 601.

(k) Augada Ram Sahah v. Nemai Chand, (1896) 23 Cal. 73; Kalinath Gupta

v. Govinda Chandra Basu, (1900) 5 C. W. N. 293; Giribala Dassi v. Pranhrista ,
(1903) 8 C. W. N. 292. .

(l) Kori Singh, (1912) 40 C. 433 : 17 C. W. N. 449 : 14 Cr. L. J. 100 : 18 I. C.
660, foliowing Augada Ram Shaha v. Nemai, (1896) 23 Cal. 267 ; See Satish Chandra
Chakraverty v. Ramdayal De, (1920) 48 C. 388 (S. B.).

(m) Meer Buks v. Maung Hla Pe, (1918) 3 U. B, R. (1918) 101 : 20 Cr. L. J.

J25: 49 I. C. 109; Satish Chandra Chakraverty v. Ramdayal , De, (1920) 48 C. 388
(S. B.). i

SEC. 499 ] OF DEFAMATION 1029

Where the accused in a maintenance proceeding against him by the com-
plainant's daughter made the most ugliest possible libel against him in his written
statement, it was held by the Lower Burma Chief Court that such a defamatory
statement was not privileged (n).

Where, in a divorce proceeding, the accused petitioner charged the complainant
respondent with adultery with his (the accused's) wife, it has been held by the
Sind Judicial Commissioner's Court that though the English rule of absolute
privilege does not apply proprio vigore in India, yet as the allegations were made
in a petition for divorce filed by the accused after his wife had left his house, it
was clearly made for the protection of the accused’s interest and as such were
covered by exception 9 (c).

Good faith : — Where the accused, the editor of a newspaper in Orissa,
published a libel against a constable not named, out of the 4 constables stationed
in a particular thana, an account of an outrage on a woman alleged to have been
perpetrated by them, it has been held by the Patna High Court that in the absence
of proof that it was intended to charge any particular and identifiable constable
with the alleged offence, the accused could not be convicted under s. 500 of the
Penal Code, and held further that “an action does not lie for defamatory words
written concerning one or other person out of a particular class unless his identity
can be established" (p).

Where a letter was written by a creditor with the bona fide intention of pro-
tecting the interests of the accused , the Calcutta High Court held that the letter the
accused wrote, did not go beyond the limits of a privileged communication and
accordingly set aside the conviction under this section (q).

In order to come within exception 9, the imputation must have been made
by the accused person in good faith for the protection of the interest of himself
or any other person. It is not sufficient that the person making the imputation
believed in good faith that he was acting for the protection of any such interest (r).
A Communication by the punches to the members of the Community incorpora-
ting the resolution of the punchayet excommunicating the complainant (who
absented himself when summoned to answer a charge), must be presumed to have
been made in good faith, and in the absence of direct evidence of malice, the
communication must be deemed to be privileged, even though the resolution
was not worked in an absolutely regular and formal manner (rl).

4 Good faith ’ as contemplated by this exception is a relative thing varying
with the intelligence and reasoning powers of the accused as also the circumstances
of the act complained of as defamatory, all of which must be taken into consideration
in determining whether in a particular case due care and caution was taken (s).

Where good faith is not established it is not strictly necessary to consider if
the public good was involved (t).

. ~ •

(n) Subramania Aiyav v. Thirumudi Mudaliar, (1911) 11 Bur. L. T. 104: 18
Cr. L. J. 1019 : 42 I. C. 763.

(o) McGill v. Byrne. (1911) 6 S. L. R. 133 : 13 Cr. L. J. 26 : 13 I. C. 217.

(p) Government Advocate v. Gopabandhu Das, (1921) 1 P. 414 : 3 Pat. L. T.
209 : 23 Cr. L. J. 433 : 67 I. C. 609 ; Pratap Chandra Guha Roy, (1926) 20 C. W. N.
904 : 42 C. L. J. 178.

(q) CassunKurrim v. Jones Hadjee Seedick, (1904) 9 C. W. N. 195.

(r) Colonel Bholanath, (1928) 61 A. 313: 26 A. L. J. 1334.

(rl) Dasai (1932) A. L. J. 76.

(s) Yad Alt v. Gaya Singh, (1929) 57 C. 843 : 34 C. W. N. 1070 : 51 C. L. J.

472, following Abdul Wadood, (1907) 31 B. 293 and Promotha Nath Mukhopadhya
(1023) 2>C. W. N. 389 : (403). *

(t) Puma Chandra Ghose, (1924) 28 C. W. N. 579.

1030

THE INDIAN PENAL CODE

[CHAP. XXI

A finding of privilege is not a finding of good faith (a). The question whether
the person making the imputation in good faith was or was not acting for the
protection of such interests is a question of law and not of fact (v).

Tenth Exception: — It is not defamation to convey a caution in good faith ,
to one person against another , provided that such caution be intended for the good of
the person to whom it is conveyed , or of some person in whom that person is interested
or for the public good .

Cumming, J., (sitting singly) held: “This exception deals with arses, for
instance, where one man warns another against employing a third person in his
service saying that he is a dishonest person and does not cover a case where the
accused in a caste-meeting made the statement that the complainant’s wife had
been married to another person (x). It seems that Cumming, J., has taken a
narrow view of this exception.

Where the complainant was a servant of the Brentford Union and the accused
defendant was the Vicar of the parish and also a member of the board of guardians,
and the libel charged against the defendant was concerning the latter’s statement
in a meeting of the Board of guardians about the complainant making defalcation
in the presence of reporters, it was held by the Judges of the Queen’s Bench
Division, that the privilege which would have attached to the statements, if made
in the presence of guardians only, was not taken away by the presence of reporters
or persons other than guardians (y). Where the accused in a defamation case
made imputations against the complainant’s character which may be believed to
be true, but in a manner quite unjustified, it was observed by the Madras High
Court : “ Conscious violation of law to another’s prejudice is sufficient, though
there may be no malice in fact, yet when the defamatory words are prima facie
libellous, legal malice must be presumed until a case of privilege is made out by
the accused, and in the present case the conduct of the accused in violating and
publicly talking about the complainant in the manner he did, seems to go beyond a
legitimate desire to protect the interest of those to whom he made the imputa
tion *’ (z). Where the accused in a caste defamation case was charged with having
distributed defamatory leaflets against the complainant describing him as a
* doshi ’ or sinner after the said complainant had been put out of caste and again
readmitted on performing expiatory ceremonies, it has been held by the Madras
High Court that privilege claimed by the accused under exception 10 of this
section cannot be availed of by him, because he had not acted in good faith (a).

500. Whoever defames another shall be punished with
simple imprisonment for a term which may
famation ment f ° r e * extend to two years, or with fine, or with
both.

This section provides punishment for the offence of defamation as defined
in s. 499. *

Procedure : — Non-cognizable — Warrant — Bailable Compoundable — Tri-

able by Court of Session, Presidency Magistrate or Magistrate of the first class.

It is most desirable that the examination and cross-examination of the com-*

(u) Champa Devi v, Pirhhu Lai, (1925) 24 A/L. J. 329: 27 Cr. L. J. 253:
A. I. R. (1926) All. 287.

(v) Colonel Bholanath, (1928) 51 A. 313 (327) : 26 A. L. J. 1334 (1345, 1346).

(x) Haripada Baidya , (1930) 34 C. W. N. 580.

(y) Pitlard v. Oliver , (1891) 1 Q. B. 474. •

(zj Palani Asari, (1 882) 1 Weir 614. f

(a) Thagaraya v. Krishnaswami , (1802) 15 M. 214 (217).

SEC. 500 ]

OF DEFAMATION

1031

plainant should be held in the presence of the Magistrate who had the seizin of
the case (b).

Complaint : — No Court shall take cognizance of an offence under this
section except upon a complaint made by some person aggrieved by such offence
and when the person on whose behalf the complaint is sought to be made is under
the age of eighteen years or is a lunatic, and the person applying for leave has not
been appointed or declared by competent authority to be the guardian of the said
minor or lunatic, and the Court is satisfied that there is a guardian so appointed
or declared, notice shall be given to such guardian and the Court shall, before
granting the application, give him a reasonable opportunity of objecting to the
granting thereof (c).

It has been held by a Full Bench of the Bombay High Court consisting of
Jenkins, C. J., Ranade, Fulton, Crowe and Batty, J. J., (Ranade, J., dissenting)
that under the provisions of the Criminal Procedure Code, a husband is entitled
to complain for defamation against one who charges unchastity to his wife (d).

Where the wife of a complainant is defamed by the imputation of unchastity
to her, the Magistrate can take cognizance of the case on the complaint of the
husband complainant (e).

Where a widowed sister lived under the guardianship of her brother as a
member of his family, it has been held by the Calcutta High Court that the brother
was a ‘ person aggrieved * within the terms of s. 1 98 of the Criminal Procedure
Code, if the sister is defamed by unchastity being imputed to her and it was
competent to the Court to take cognizance of the offence under his complaint (f).

The words * some person aggrieved by such offence* as mentioned in s. 198
of the Code of Criminal Procedure include the husband in their ordinary meaning,
and his reputation is so intimately connected with that of his wife it would be
unreasonable to hold that the defamation would ordinarily not be as hurtful to his
feelings as it is to those of his wife (g). The Allahabad High Court has held that
it is within the competence of the appellate Court to alter the conviction from
one under s. 182 to one under s. 500, notwithstanding that there was in existence
no complaint by the person aggrieved (h).

Where an offence though described as an offence under s. 500, still remains
an offence * punishable * under s. 211, process should not issue under the former
section on the application of a person discharged or acquitted, when the Court
has refused sanction under the latter section (i).

Place of trial : — The Madras High Court has held in a case, where an
alleged defamatory letter was written and posted from Trivendram and evidently
the publication was in a Native State outside British India, that the British Courts
have no jurisdiction to try the offence committed lj).

•

(b) Brindaban Chandra Das v. Ishaquaddin Chowdhury , (1909) 13 C. W. N. 550.

(c) Ss. 198 and 199- A of the Code of Criminal Procedure as amended by Act
XVIII of 1923.

(d) Chotalal Lullubhai v. Nathabai, (1900) 25 B. 151 (F. B. f ) following Chellam
Naiduv. Ramasami , (1891) 14 M. 379; Gurdit Singh , (1924) 5 L. 301.

(e) Chellam Naidu v. Ramasami , (1891) 14 M. 379.

(f) Thakur Das Sur v. Adhar Charna Missri, (1904) 32 C. 425.

(g) CheHam v. Ramasami, (1890) 14 M. 379 ; Chotalal Nathabai, (1900) 25 B. 151
(F.B.).

(h) Sur Narain Prasod, i 1 903) 25 A, 534.

(i) Prafulla Kumar Ghosh v# Harendra Nath Chatter jee, (1916) 34 C. 970.

(j) * Varna Kota Hath, (1900) 1 Weir 579,,

1032

THE INDIAN PENAL CODE

[ CHAP. XXI

To maintain a prosecution for defamation in a particular Court,. there must be
a publication of the libel within the local limits of the jurisdiction of that
Court (k).

Joint trial — of the editor and the publishers of a newspaper was held legal
where it was found that the articles were published by reason of a continuity of
the policy of the paper and that the transaction upon which all the three people
were engaged was the same, viz,, to bring about the fall of the complainant from
the position occupied by him in an Indian State (1).

The Prosecution must prove : —

(1) That the accused made or published any imputation concerning the
complainant or some other person and thereby the complainant was aggrieved.

(2) That such imputation consisted of words either spoken or intended to be
read, or of signs or visible representations.

(3) That the accused thereby intended to harm or knew (or had reason to
believe) that such imputation would harm the reputation of such person (the
complainant).

The prosecution may adduce evidence of other libels either before or after
the alleged defamation to prove actual malice (m).

When the question arises as to whether the words used were intended to
harm or had the effect of harming the reputation, the Court must be put in posses-
sion not only of the words used, but also of the context in which they were used,
in order to find the intention and the effect of the words (n).

“It is unnecessary for the prosecution to prove the exact words used by the
accused, for the purpose of supporting a conviction for oral defamation. It is
sufficient to prove the purport or substance of the defamatory imputations, provided
that a sufficiently clear account of the purport of the defamatory matter is given'* (o).

The Court, in determining the question of good faith, should have to take
into account the intellectual capacity of the person, his predilections and the
surrounding facts (p).

The common defence is that the words used do not convey any defamatory
meaning. 1

In this connection it is well to remember what Hawkins observed : “Jests

are not to be endured, and the injury to the reputation of the party

aggrieved is in no way so light of it" (q).

See Dhondu Bapu G ajar’s case (r) which has held this view.

Another line of defence is that the accused did not understand the meaning
of the words used. If such is the plea, the burden is shifted to the prosecution
to disprove such plea.

Where the defence pleads any of the exceptions, the onus is on him to prove
one of the other exceptions {vide Ss. 103 and 106) of the Indian Evidence Act.

(k) Burke v. Skipp, (1923) 45 M. L. J. 754. —

(l) Jhabbar Mai , (1927) 26 A. L. J. 196.

(m) Barrett v. Long, (1850) 3 H. L. Cases 395 ; Bal Gangadhar Tilak, (1897)
22 B. 112 (case under s. 124-A) ; Amba Prosad, (1898) 20 A. 295.

(n) Colonel Bhola Nath , (1928) 51 A. 313; 26 A. L. J. 1334; see Kali Prasanna
Kabyabisharad, (1897) 1 C. W. N. 405.

(o) Per King, J., in ibid at p. 51 A. 313 (330) : 26 A. L. J. 1334 (1347).

(p) Jeremiah v. Vas, (1911) 36 M. 457; Burke v. Shipp, (1923) M. W. N. ; 913;
Yad All v. Gaya Singh, (1929) 57 C. 893 : 34 C. W. N/ 1070 : 51 C. L. J. 472.

(q) Hawk, P. C. 546. 1

(r) (1927) 29 Bom. L. R. 713.

a

SEC. 600 ]

OF DEFAMATION

1033

When the defence takes such plea , the prosecution must prove that the accused
intended to harm the reputation of the complainant or knew or had reason to
believe that such imputation will harm the reputation of the complainant.

Truth is a defence to libel under the English law (s) but when the defence
pleads exception I, the defence must in addition prove that the imputation is not
only true but is made or published * for the public good*.

In a prosecution under this section the accused is entitled to call evidence to
prove that the allegations are true, even though he has denied making such allega-
tions (t).

The first exception exempts any imputation made or published for the public
good, and concludes as follows : — * whether or not it is tor the public good is a
question of fact* (u).

Where the defamation is against a company or class, if a person complains
that he has been defamed as a member of a class he must satisfy the Court that
the imputation is against him personally and he is the person aimed at before he
can maintain a prosecution for defamation (v).

Another plea which is commonly taken and arises upon the circumstances
of the case is covered by exceptions 8 and 9. Under this head ‘ good faith * is
very important and the defence in order to succeed must establish ’ good faith/
Exceptions 7 and 10 also require that the imputation must be made in good faith.

See commentary on s. 499 under each of the exceptions and bear in mind the
case-law on the subject in conducting the defence.

Where the accused, in a defamation case, was the complainant in a previous
petition presented to a Magistrate and which complaint was found to be false,
and not in good faith, the Calcutta High Court in setting aside the conviction
observed : “ The proper point to be decided is not whether the allegations put
forward by the accused in support of the defamation are in substance true, but
whether he was informed and had good reason after due care and attention to
believe the allegations to be true” (w).

Autrefois Acquit: — An acquittal under s. 182, in respect of false inform-
ation contained in petition to th^ manager of an estate has been held to be
no bar to a subsequent prosecution for defamation under s. 500 on the same
statements (x).

Charge : — Where the charge did not set forth the particular occasion on which
the defamation was said to have been committed, so as to give the accused person
an opportunity of defending himself with reference to each act alleged to have been
committed by him, the Calcutta High Court held the charge to be bad (y).

Where the charge was that the complainant was defamed by imputations made
concerning the police force at Charmaniar and that the reputation intended to be
harmed was that of the complainant and the police force, th$ Calcutta High Court
held that the charge so framed did not conform to the requirements of the
definition (z).

(s) Sutherland v. Stopes, (1925) A.C 47.

(t) Abdul Aziz v. Fazal Rahaman , (1928) A. I. R. (1928) Rang. 167 : 30 Cr. L. J.

239. - *

(u) Janardhan Damodar, (1894) 19 B. 703 (706).

(v) Pratap Chandra Guha Roy , (1925) 29 C. W. N. 904 : 42 C. L. J. 178.

(w) In re . Shibo Prasad Pandah , (1878) 4 C. 124 ; Dhum Singh, (1884) 0 A. 220.

(x) Ramshebak Lai u. Muneswer Singh , (1910) 37 C. 604.

. (y) Biswanath v. Keshabf (1902) 30 C. 402 (404).

(z) Protap Chandra Guha Roy, (1921) 29 C. W. N. 904 : 42 C. L. J. 178.

1034 THE INDIAN PENAL CODE [ CftAP. Xxl

Form of charge : — I (nan U and office of Magistrate , etc.) hereby charge you
(name of accused) as follows : —

That you, on or about the day of — , at - .

defamed XY by making (or publishing the following imputation concerning XY

to AB % to wit , here set out the defamatory matter) intending to harm

or knowing (or having reason to believe) that such imputation would harm the
reputation of the said XY, and that you thereby committed an offence punishable
under s. 500 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

501. Whoever prints or engraves any matter, knowing
Printing or engraving or Having good reason to believe that such
matter known to be matter is defamatory of any person, shall be
defamatory. punished with simple imprisonment for a

term which may extend to two years, or with fine, or with both.

The mere circumstances that the petitioner is not the writer of the article,
and is a ‘dummy’ editor, is of course no ground for reduction of sentence (b) spe-
cially when the article is calculated to stir up communal feelings (c).

Evidence : — The prosecution must make out its case by evidence and a gap
in the evidence cannot be filled up by any statement made by the accused in his
examination under s. 342, Cr. P. Code (d).

In considering a poem the jury must read the poem as a whole as reasonable
men and should see whether it is reasonably capable of the construction put by the
prosecution. The opinion of experts was held not binding on the jury (e).

Book on highly controversial religious matter s— 1 Where the first accused
wrote a book in reply to a book written by the complainant dealing with highly
controversial religious matters and in expressing his opinion used violent expressions,
held that such expressions taken along with the context cannot be considered defa-
matory (f).

Duties of editors : — An editor should be most watchful not to publish defa-
matory attacks upon individuals unless he first takes reasonable pains to ascertain
that there are strong and cogent grounds for beljeving the information which is sent
to him to be true (g).

Procedure : — Non-cognizable — Warrant — Bailable — Compoundable — Triable
by Court of Session, Presidency Magistrate, or Magistrate of the first class.

Complaint : — No Court shall take cognizance of an offence falling under this
section, except upon a complaint made by some person aggrieved by such offence :

Provided that, where the person so aggrieved is a woman who, according to the
customs and manners of the country, ought not to be compelled to appear in public,
or where such person is under the age of eighteen years, or is an idiot or lunatic,
is from sickness or infirmity unable to make a complant, some other person may,
with the leave of the Court make a complaint on his or her behalf (h).

(b) Muhammad Nazir , (1928) 26 A. L. J. 609.

(c) Aziz Ahmed, A. I. R. (1928) Lah. 866.

(d) Devi Dyal , (1922) 4 L. 65 : 24 Cr. L. J. 693 ; Mohideen Abdul Quadir , (1903)
27 M. 238; In re Abdulla Ravathan, (1915) 39 M. 779; Qolonel Bholanath, (1928) 51-A
313 (336).

(e) Empress v. Kali Prosanna Kabyabhusan, (1897) 1 C. W. N. 465.

(f) Kumara Gurudas Swamigal v. Krishnaswami Mudaliar , (1924) M. W. N.

768.

(g) Mohammed Nazir , (1928) 26 A. L. J. 609: A, I. *R. (1928) All. 321.

(h) S. 198 of the Code of Criminal Procedure as amended by Act XVIII of 1*923.

SEC. 502]

OF DEFAMATION

1035

On a conviction under this section the Court ittay order the destruction of all
the copies of the defamatory matter in respect of which the conviction was bad (i).

Charge s — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows : —

That you, on or about the day of , at ,

printed (or engraved) some matter, to wit , knowing (or having good

reason to believe) that the same was defamatory, and that you thereby committed
an offence punishable under s. 501 of the Indian Penal Code, and within my cog-
nizance (or the cognizance of the Court of Session, or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

Joint trial t — A joint trial of the author of a book * Fakir Beshe Praner Raja *
alleged to contain defamatory matter under s. 500, and of the printer under Ss. 500
and 501, is illegal when the appellate Court found that there was no evidence to
support the conviction under s. 500 of the latter and no evidence of conspiracy
between them (j).

Sentence — was enhanced in Mohammed Nazirs case (jl).

502. Whoever sells or offers for sale any printed or engraved
sale of rinted or substance containing defamatory matter,
cngraved°siibstancecon- knowing that it contains such matter, shall
matter < lefamator y be punished with simple imprisonment for
1 a ^ a term which may extend to two years, or

with fine, or with both.

This section follows from the last section and punishes the seller of the defa-
matory matter.

Responsibility of declared printer : — Prima facie the person who is the
‘ declared printer * of a newspaper is responsible for everything that is printed in it.
He can, however, escape liability by showing that he was absent bona fide , that is,
not with the purpose of evading responsibility, when a particular article complained of
was printed. But if he does so, he is bound to give evidence as to who the actual
printer of the paper in his absence was (k).

The keeper of the press and the printer may not know the contents of the publi-
cation (1).

Procedure : — Non-cognizable — Warrant — Bailable — Compoundable — Triable
by Court of Session, Presidency Magistrate or Magistrate of the first class.

Complaint : — No Court shall take cognizance of this offence except upon
complaint made by some person aggrieved by such offence (m).

Under s. 521 of the Code of Criminal Procedure the Court may order the
destruction of all the copies of the thing in respect of which the conviction was bad.

Charge : — I ( name and office of Magistrate , etc.) hereby charge you ( name
of accused) as follows: — •

That you, on or about the—; day of -, at-

sold (or offered for sale) any printed (or engraved) substance to wit —

(i) S. 621, Cl. (2) of the Criminal Procedure Code.

(j) Ashutosh Dash Gupta*v . Puma Chandra Ghosh, (1922) 60 C. 159.

(jl) 20 A. L. J. 609.

(k) Har Swamp v. Muhammad Siraj , (1928) 50 A. 806, following Phanindra
Nath Mitter, (1908) 36 C. 945.

(l) r. K . Petre, (1922) 47 B. 438.

to) S. 198 of the Code ofr Criminal Procedure as amended by Act XVIII of
1923. •

[CHAP. XXII

1036 THE INDIAN PENAL CODE

containing defamatory matter knowing that it contained such matter, and that you
thereby committed an offence punishable under s. 503 of the Indian Penal Code,
and within my cognizance (or the cognizance of the Court of Session or the High
Court).

And I hereby direct that you be tried (by the said XCourt) on the said charge.

CHAPTER XXII.

Of Criminal Intimidation, Insult and Annoyance.

“ This chapter is in some sort supplementary to the Chapter of Defamation.
An imputation which is not defamatory under the definition, explanations and
exceptions in that chapter may, under certain circumstances, be punishable on other
grounds. For example, an imputation which is insulting though not defamatory
may be uttered in the hearing of the person who is the object of it, for the purpose
of provoking that person to break the public peace. If so, it is punishable under
s. 504” (n).

503. Whoever threatens another with any injury to person,

Criminal intimidation, reputation or property, or to the person or
reputation or any one m whom that person
is interested, with intent to cause alarm to that person, or to cause
that person to do any act which he is not legally bound to do, or
to omit to do any act which that person is legally entitled to do,
as the means of avoiding the execution of such threat, commits
criminal intimidation.

Explanation . — A threat to injure the reputation of any
deceased person in whom the person threatened is interested, is
within this section.

Illustration.

A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens
to burn B’s house, A is guilty of criminal intimidation.

This section defines criminal intimidation. It is analogous to the provisions
of the offence of 4 Extortion * as defined in s. 383.

4 threatens another with injury * Petheram, C. J., held : 44 The gist of
the offence is the effect which the threat is intended to have upon the mind of the
person threatened, and it is equally clear that, before it can have any effect upon
his mind, it must be either made to him by the person threatening, or communicated
to him in some way ” (o).

The word 4 injury ’ is defined in s. 44, supra. „

Where it was proved that the accused did threaten the complainant with a
criminal prosecution if he persisted in detaining his sister in his house, the Bombay

(n) Morgan and Macpherson, 1 Penal Code, ' p. 448*.

(o) Gunga Chunder Sen v. Gout Banikja, (1888) 15 C. 671 (673).

SEC. 503 ] CRIMINAL INTIMIDATION, INSULT, ETC. 1037

High Court held that that act did not constitute * criminal intimidation ’ (there
having been no threat of an injury within the meaning of the Penal Code (p).

A threat of getting a police constable dismissed from the police service is not
such a threat of injury as is punishable under this section (q).

Muttuswamy Aiyar, J., held : " There can be no criminal intimidation where
the injury of which complaint is made is the hardship arising from a conventional
punishment, which a spiritual superior^ acting in the exercise of his authority as
regulated by the custom of the caste, is competent to inflict” (r).

Where the accused issued a notice, signed by himself as President of a self-
constituted Arbitration Court, to complainant calling on him to appear on a certain
date and answer a claim brought against him, failing which an ex parte decree would
be passed against him, the Calcutta High Court held that the accused was guilty
under this section (s). In this case there was a difference of opinion between
Newbould and Suhrawardy, J.J., and the matter was laid before Buckland, J.,
who held : “ The section says nothing about the capacity of the person making the

threat to carry it into execution Nor does the section say anything

about the effect upon the person threatened, and whether or not the complainant
knew that the notice was innocuous is equally immaterial” (t).

Where the accused gave notice to a shopkeeper asking him to execute an agree-
ment not to import for one year any foreign cloth for sale at his shop and intimating
that in default of his doing so his shop would be picketted, held that the accused was
guilty of an offence under this section (u). It may be pointed out that picketing
was not then punishable either under the ordinance or any other law.

In order to convict a person of criminal intimidation it must be found that
there was a threat by him to another person of injury to his person, reputation or
property or to the person or reputation of any one in whom that person is inter-
ested (v).

West, J., held: “The offence of criminal intimidation, as defined seems,
to require both a person to be threatened and another in whom he is specially
interested. Then there must be the intent to cause alarm to the former by a
threat to him of injury to the latter. The intent itself might be complete, though
it could not be effected ; but the existence of the interest seems essential to the
offence, but also and equally to the attempt at the offence, since otherwise the
attempt would be at something not* constituting the offence" (w).

When is the offence of criminal intimidation complete : — To con-
stitute the offence of criminal intimidation it would be necessary for the Courts to
inquire :

(1) Whether the acts inhibited by the threat were such as the complainants

were entitled to do ;

(2) Whether the accused had or had not jurisdiction to pronounce on their

legality ;

(3) Whether or not the accused had jurisdiction to pronounce a sentence

of ex-communication, and

(p) Morrba Bhaskarji, (1 871) 8 Bom. H. C. (Cr. C.) 101 (102).

(q) Dada Hammant Dani, (1895) 20 B. 794.

(r) Per Muttuswamy Aiyar, J., in Sankara , (1883) 6 M. 381 (388).

(s Pryanath Gupta v. 1M Jhi Chaudhury , (1923) 27 C. W. N. 479 : 37 C. L. J.
526 : 24 Cr. L. J. 936 : 72 I. C. 308 : A. I. R. (1923) Cal. 590.

(t) Ibid.

(u) JRaghubar Dayal t (1930) 53 A. 417.

(v) Jawahir Pathack v. Parbhoo A Mr, (1902) 30 C. 418.

(w) Mange sh Jiwaji, (1887) 11 B. 376.

1033

THE INDIAN PENAL CODE

[CHAP. XXII

(4) Whether if the accused did not possess^ that jurisdiction, but had
exercised it in good faith and under misapprehension of the law,
such an exercise of jurisdiction would amount to an offence (x).

To constitute an offence under this section, it must be shown that the accused
threatened another with 4 injury * as defined in s. 44, supra (y).

Where accused demanded, under threats, the restoration of certain Bahis
which had been in possession of complainant for some years past, the Allahabad
High Court held that the offence was complete even though the accused did not
have access to the articles in question (z).

504. Whoever intentionally insults, and thereby gives
provocation to any person, intending or
knowing it to he likely that such provoca-
tion will cause him to break the public
peace, or to commit any other offence, shall be punished with
imprisonment of either description for a term which may extend
to two years, or with fine, or with both.

Intentional insult
with intent to provoke
breach of the peace.

This section punishes any person who intentionally insults any person with
intent to provoke breach of the peace.

Scope: — This section provides a remedy and that an ample remedy for a
mere personal insult or abuse as distinct from defamation and not touching the
complainant’s credit or reputation. Such conduct of the accused, though it
produces mental pain or distress is not actionable in this country (a).

It was held in a Madras case that this section includes a case where the accused
gives such provocation as would under ordinary circumstances have caused a
breach of the peace, and it is no defence to say that the complainant was reduced
to such an abject state of terror that it was impossible to suppose that the pro-
vocation was likely to cause him to break the public peace (b).

A person is within the ambit of section not only if the provocation offered
by him is of such a character as to cause the person provoked to commit a breach
of the peace but even if it is of such a nature as to cause him to commit any other
offence (c). ,

Procedure :—Non-cognizable— Warrant— Bailable — Compoundable— Triable
by any Magistrate— Triable summarily.

Charges under Ss. 504 and 323 are clearly compoundable (d).

Charge : — The failure of the Magistrate to specifically mention the objec-
tionable words in the charge does not vitiate the trial where the accused has not
been prejudiced by such omission (e).

Form of charge I (name and office of Magistrate , etc.) hereby charge
you (name of accused) as follows : —

(x) Per Turner, C. J., In re Paul De Cruz, (1884) 8 M. 140 (147).

(y) Srividya Sankara , (1883) 6 M. 381 (394).

(z) Onkar, (1923) 21 A, L. J. 877 : A. I. R. (1923) All, 213.

(a) Girisk Chunder Mitter v. Jatadhari Sadukhan, (1899) 26 C. 653 (663) ; (F.B.)
Motilal, (1901) 24 A. 155.

(b) Jogaya , (1887) 10 M. 353, and Kuppuswami Aiyar , (1915) 39 M. 561, in
Silvester Vaz v. Louis Dias , (19&9) 32 Bom. L. R. 103.

(c) Silvester Vaz. v. LouiwDias, (1929) 32 Bom. L. R. 103, following Gul Muham-
mad v. Pir Akbar AH, (1926) 28 Cr. L. J. 172.

(d) /. John , (1922) 45 A. 145.

(e) Shanker Lai (1927) 28 Cr, L. J. 821,

SEC. 504 ] CRIMINAL INTIMIDATION, INSULT, ETC. 1039

That you, on or about the— day of , at- — — ,

intentionally insulted XYby using the following words, to wit — \ (set

them out) and thereby gave provocation to XY intending (or knowing it to be likely)
that such provocation will cause him to break the public peace (or to commit any
other offence), and thereby committed an offence punishable under s. 504 of the
Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Punishment : — Where a person, while under the influence of liquor, abuses
another and is convicted under this section, the most appropriate punishment is
substantial fine in accordance with the means of the accused (f).

* intentionally insults ’ ' The ingredients essential for a conviction under
s. 504 are threefold : first , intentional insult, secondly , provocation therefrom and
thirdly , intention that such provocation should cause or knowledge that such
provocation was likely to cause the person so insulted to break the peace or to
commit any other offence.

A Deputy Magistrate went to a locality to enquire into a petition made by the
residents for funds to enable them to dig a well and in the course of a discussion
with the people assembled, the Deputy Magistrate remarked that as some of the
residents were well-to-do, they must make the well themselves, whereupon the
accused who were present there said to the Deputy Magistrate : “ Then why do
you make an enquiry, go away quietly/' It was held by Mookerji, J., that the
accused could not be convicted under s. 504 as the insult, if any, in this case could
not have been intentional, f.e., done on purpose (g).

Mere discourtesy and bad manners do not amount to a criminal offence for
which a person can be criminally punished (h).

An offence under this section may be committed although the person to whom
the insult is directly offered is not a person likely to be provoked to commit a
breach of the peace, or although the person likely to be provoked to commit a
breach of the peace is not in fact provoked (i).

‘thereby gives provocation to any person’:— For an offence under this
section, mere abuse will not do without an intention to cause a breach of the peace
or knowledge that a breach of the peace is likely (j). If the provocation is such
as would under ordinary circumstances have caused a breach of the peace, the
offence under this section would be complete and it is no defence to say that the
complainant was reduced to a state of abject terror making it impossible for him
to commit a breach of the peace (k). The public peace can be broken by angry
words as well as by deeds. To constitute an offence under this section it is suffi-
cient if the insult is of a kind calculated to cause the other party to lose
temper and say or do something violent (1).

Where A entered the pleaders’ room attached to a District Court, in order to
see a pleader, B another pleader objected to his presence and caused his attention
to be directed to a rule that the room was reserved for pleaders, and that if any
person, not a pleader, entered the room and his presence was objected to, it wa

(f) Chet Singh , (1910) P. W. R. No. 21 of 1911 (Cr.) : 12 Cr. L. J. 435 : 11 I. C

619. * *

(g) Jaykrishna, (1918) 21 C. W. N. 95: 24 C. L. J. 137 (138).

(h) Rahim Baksh, (1919) 18 A. L. J. 515 : 21 Cr. L. J. 451 : 56 I. C. 435.

(i) Syed Mahomed, (1900)>1 Weir 622.

(j) In re* S.Kuppuswami Aiyar, (1915) 39 M. 56L; 28 M. L. J. 505 : 17 M L T

398 : (1915) M. W. N. 365 : 16 Cr. L. J. 477 : 29 I. C.109. ’

(k) Jo gay a, (1887) 10 M. 353; joykrishna, (1910) 21 C. W. N. 95: 24 C. L. J.
137 .

(l) Chunnibhai Dahya£hai„( 1902) 4 Bom. L. & 78.

1040

THE INDIAN PENAL CODE

[CHAP. XXII

incumbent upon such person to withdraw, but A refused to leave the room when
B put him out of the room and B used abusive language and was convicted under
Ss. 352 and 504, the Bombay High Court held that the conviction was unsustain-
able (m).

Intending or knowing it to be likely that such provocation will cause
him to break the public peace : — Where seven persons going upon the land
of another deliberately prevented him from irrigating his fields, and when remon-
strated with, used abusive language and threatened to strike, it was held that the
accused were guilty of offering an insult within the meaning of this section, as the
insult was such as to cause a breach of the peace and the threat to strike was a threat
conveying an intention on the part of the accused that they were desirous of provok-
ing a breach of the peace (n).

The Lahore High Court has held that the offence of calling a man * beiman *
and ‘ badmash ' would fall under this section and not under s. 500 (o).

But the Bombay High Court has held that the accused committed no offence
when at a meeting of the shareholders of a company a proposal was made to expel
the accused from the company whereupon he grew angry and while leaving the room
he muttered, “ you damn bloody bastards and cads ” (p).

Statements conduc- 505. Whoever makes, publishes or cir-
ing to public mischief. cu l a tes any statement, rumour or report, —

(a) with intent to cause, or which is likely to cause, any

officer, soldier, sailor, or air man in the Army, Navy
or Air Force of Her Majesty or in the Royal Indian
Marine or in the Imperial Service Troops to mutiny
or otherwise disregard or fail in his duty as such ;
or

( b ) with intent to cause, or which is likely to cause, fear

or alarm to the public or to any section of the public
whereby any person may be induced to commit an
offence against the State or against the public tran-
quillity ; or *

(c) with intent to incite, or which is likely to incite, any

class or community of persons to commit any
offence against any other class or community ;

shall be punished with imprisonment which may extend to
two years, or with fine, or with both.

Exception .— It does not amount to an offence, within the
meaning of this 'section, when the person making, publishing or
circulating any such statement, tumour or report, has reasonable
grounds for believing that such statement, rumour or report is true

(m) Moro Balwant Marathe, (1913) 14 Bom. L. R. 1039 : 15 Cr. L. J. 14 : 22

I. C. 158. •.

(n) Habib Khan v. Maxkarul Haque, (1917) 1 Pat. L. W. 536 : 18 Cr. L. J. 463 :
39 I. C. 303, following Jay Krishna Samanla, (1916) 21 C. W. N. 95 : 24 C. L. J. 137 ;
18 Cr. L. J. 17.

(o) Bakhtawar Lai , (1920) 4 Lab. L. J. 480 : A. I. R. /1922) Lah. 469,

(p) Rangel, (1901) 56 B. 196 : 84 Bom, L, R. 282,

SEC. 506] CRIMINAL INTIMIDATION, INSULT, ETC. 1041

and makes, publishes or circulates it without any such intent as
aforesaid.

Offences against the State — Ch. VI, Ss. 121-130.

Legislative changes : — S. 505 was repealed and the present section was
substituted therefor by s. 6^ of the Indian Penal Code Amendment Act, 1896
(IV of 18%). The words *or Airman * and * or Air-force* were added by the
Repealing and Amending Act (X of 1927).

The old s. 505 ran as follows : —

" Whoever circulates or publishes any statement or rumour or report, which he
knows to be false, with intent to cause any officer, soldier
Circulating false re- or sailor in the Army or Navy of the Queen, to mutiny

report with intent to or with intent to cause fear or alarm to the public and

cause mutiny or an off- thereby to induce any person to commit an offence against

ence against the State the State or against the public tranquillity, shall be

etc. punished with imprisonment of either description for a

term which may extend to two years, or with fine, or
with both. ”

The Select Committee in their Report observed : " We have inserted the
clause proposed by the Government, but we have altered and enlarged the scope
and exception to the clause. No doubt, the statements, rumours and reports
referred to are of a highly mischievous character, but having regard to the conditions
under which modern journalism and the discussion of public questions are neces-
sarily carried on, we think that, when the statement, rumour or report is published
without any criminal intent, it is going too far to require the person who published
it to prove its actual truth. To require such proof might be throwing an impossible
burden upon him and it should be sufficient for him to show that he had reasonable
grounds for believing it, as for instance, by showing that he made due inquiry
before he publishished it " (q).

Procedure : — Non-cognizable Warrant — Not bailable Not compound-

able — Triable by Presidency Magistrate or Magistrate of the first class.

Sanction: — No Court shall take cognizance of an offence under this section
without sanction from Government (r).

Charge : — I ( name and office of Magistrate , etc.) hereby charge you (name
of accused ) as follows : — *

That you, on or about the day of — , at ,

published (or circulated) a statement (or rumour, or report) to wit ,

with intent ( mention the clause under which the act comes , and thereby committed an
offence punishable under s. 505 of the Indian Penal Code and within my cogni-
zance.

And I hereby direct that you be tried on the said charge.

506. Whoever commits the offence of criminal intimidation
Punishment for crimi- shall be punished with imprisonment of
nai intimidation. either description for a term which may

extend to two years, or with fine, or with both ;

and if the threat be to cause death or grievous hurt, or to
If threat be to cause cau.se the destruction^ of any property by
death or grievous hurt, fire, or to cause an offence punishable with
etc - death or transportation, or with imprison-

(q) Gazette of India, 1808,. Part VI, p. 26,

(r) S. 197, Criminal Procedure Code, i

72

1042

THE INDIAN PENAL CODE

[CHAP. XXII

ment for a term which may extend to seven years, or to impute
unchastity to a woman, shall be punished with imprisonment of
either description for a term which may extend to seven years, or
with fine, or with both.

Criminal intimidation — s. 503.

This section provides punishment for the offence of criminal intimidation.

This section has come into prominence with the starting of Civil Disobedience
Movement in the country. Picketting which according to the contention of the
defence is peaceful is made a ground of attack by the prosecution which usually
joins a charge under this section along with the trial of the. offender under the
Picketting Ordinance No. V of 1930, since repeated by the Criminal Law Amend-
ment Act of 1932.

Scope t— The mere causing of fear or alarm to the public or a section of the
public does not constitute an offence under this section but it is necessary that the
fear or alarm should be caused in such circumstances as to render it likely that
a person may be induced to commit an offence against the state or against the
public tranquility (s).

Threat to ruin the complainant by ‘ cases * does not bring the accused within
the mischief of this section, but if the threat were by false cases the offence would
have been committed (t).

Procedure s — Non-cognizable — Warrant — Bailable — Compoundable — Triable
by Presidency Magistrate or Magistrate of the first or second class ; if threat be to
cause death or grievous hurt , etc., Non-cognizable — Warrant — Bailable — Not com-
poundable— Triable by Court of Session, Presidency Magistrate or Magistrate of the
first class.

If a person at one time criminally intimidates three different persons, and each
of those persons bring a separate charge against him the accused may be convicted
for an offence as against each person and may be punished separately for each
offence (u).

Place of trial : — Accused is triable in the District where the act is done or
where consequence ensues (v). f

Charge s — When a person is accused of more offences than one of the same
kind committed within the space of twelve months from the first to the last of such
offences, whether in respect of the same person or not (w), he may be charged with and
tried at one. trial for any number of them not exceeding three (x).

Form of charge : — I (name and office of Magistrate , etc.) hereby charge you
(name of accused) as follows: —

That you, on or about the day of , at— ,

committed criminal intimidation by threatening XY with injury to his person
(or reputation or pipperty) with intent to cause alarm to the said XY [(or to cause
the said XY to do (specify the act intended to be done ) or to omit (specify the act
intended to be omitted)]; and thereby committed an offence punishable under s. 506
of the Indian Penal Code and within my cognizance (or cognizance of the Court
of Session or the High Court).

(s) Mfdnbir, (1898) 3 C. W. N. 1. 1 " _

(t) Jawahir Pathak v. Parbhoo Ahir, (1902) 30 C. 418.

(u) Goolzar Khan, (1868) 9 W. R. (Cr.) 30.

(v) Sec. 179 ill. (c), Criminal Procedure Code.

(w) These words printed in italics were inserted by Act XVIII of 1923.

(x) S. 234 cl. (A), Criminal Procedure Code, *

SECS. 507-8] CRIMINAL INTIMIDATION, INSULT, ETC. 1043

And I hereby direct that you be tried (by the said Court) on the said charge.

For commentary see notes under s. 503.

507. Whoever commits the offence of criminal intirtiida*
Criminal intimida- ti<m by an , anonymous communication,

tion by an anonymous or having taken precaution to conceal the
communication. name or abode of the person from whom

the threat comes, shall be punished with imprisonment of either
description for a term which may extend to two years, in addition
to the punishment provided for the offence by the last preceding
section.

This is a proviso to the last section. This section punishes criminal intimida-
tion by an anonymous communication, and provides for a higher penalty ^han the
last section.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable—
Triable by Court of Session, Presidency Magistrate, or Magistrate of the first class.

Charge : — See Form as set out under the last section.

For a conviction under s. 507 it must be shown that the accused committed
criminal intimidation by using threats of injury which he was in a position to put
into execution. The injury need not be one to be inflicted by the accused himself
personally, but it is enough if he can cause it to be inflicted by another. Hence
a person who extorts money by sending anonymous letters as if from God, con-
veying threats of divine punishment if a specified sum of money be not paid to a
certain person identifiable by the description given in the letters, cannot be con-
victed under s. 507 (y).

508. Whoever voluntarily causes or attempts to cause any

Act caused by indue- person to do anything which that person

mg person to believe j s no f legally bound to do, or to omit to do
that he will be rendered , , • , . i i • , n ... , , . «

an object of the Divine anything which he is legally entitled to do,

displeasure. by inducing or attempting to induce that

person to believe that he or any person in whom he is interested

will become or will be rendered by some act of the offender an

object of Divine displeasure if he does not do the thing which it is

the object of the offender to cause him to do, or if he does the thing

which it is the object of the offender to cause him to omit,

shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine, or with
both.

Illustrations.

at

(a) A sits dhurna at Z's door with the intention of causing it to be believed that,
by so sitting, he renders Z an object of Divine displeasure. A has committed the
offence defined in this section.

(y) Doraswamy Ayyar , (1924) 48 M. 77£ : (1925) M. W. N. 113,

1044

THE INDIAN PENAL CODE

[CHAP. XXII

(b) A threatens Z that, unless Z performs a certain act, A will kill one of A ’s
own children, under such circumstances that the killing would be believed to render
Z an object of Divine displeasure. A has committed the offence defined in this
section.

The Authors of the Code observe : “ It is intended to prevent such practices
as those known among the natives by the names of Dhurna and traga ; such acts
are now punishable by law (z) and it is unnecessary to adduce any argument for
the purpose of showing that they ought to be so M (a).

Procedure : — Non-cognizable — Warrant — Bailable — Compoundable (b) —
Triable by Presidency Magistrate, or Magistrate of the first or second class.

Charge : — I ( name and office of Magistrate), hereby charge you (name of the
accused) as follows : —

That you, on or about the day of — , at ,

voluntarijy Caused (or attempted to cause) XY to do something which the said XY

was not legally bound to do, viz., (or to omit to do

something which he was not legally entitled to do, to wit ,) by inducing

(or attempting to induce) the said XY to believe that he (or some person in whom

he was interested) would become by your act, to wit , an object of

divine displeasure, if the said XY did not do the said thing which it was your object
to cause him to do (or to cause him to omit) and you thereby committed an offence
punishable under s. 508 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge.

Scope: — To constitute the offence punishable under this section, it must
be shown that the respondent threatened to do a future act or illegally to omit to
do an act, and that by such threat he induced or attempted to induce the person
threatened to believe that by that act or illegal omission the person threatened or
some one in whom the person threatened was interested, would become an object
of divine displeasure (c).

Where the complainants who were Roman Catholics alleged that they were
threatened with an illegal sentence of excommunication by the ecclesiastical author-
ities which would injure their reputation unless they abstained from acts which
they were legally entitled to do, the Madras High Court held that it would be
necessary for the Courts to inquire (1) whether the acts inhibited by the threat were
such as the complainants were legally entitled to do ; (2) whether the ecclesiastical
authority had or had not jurisdiction to pronounce on their legality ; (3) whether
or not the same authority had, under the circumstances, jurisdiction to pronounce
a sentence of excommunication and (4) whether if it did not possess that jurisdic-
tion, but had exercised it in good faith and under misapprehension of law, such
an exercise of jurisdiction would amount to an offence (d).

509. Whoever, intending to insult the modesty of any
Wo«iI gesture or act woman, utters any word, makes any sound or
intended to insult the gesture, or exhibits any object, intending that

modesty of a woman. such ^ Qf ^jj fce or ^

(z) See ,Beng. Regulation XXI of 1795 and VII of 1820; Bom. Reg. XIV of
1897. •

(a) Note J.

(b) The word * compoundable * was substituted for * not-compoundable ' by Act
XVIII of 1923.

(c) Sankara , (1883) 6 M. 381 (394), followed in re. Doraswamy Ayyer. (1924)

48 M. 774 (778). • . '

(d) In re De Cruz and John Raymond Biber, (1884) 8 M. 140.

SEC. 509 ] CRIMINAL INTIMIDATION, INSULT, ETC.

1045

such gesture or object shall be seen, by such woman, or intrudes
upon the privacy of such woman, shall be punished with simple
imprisonment for a term which may extend to one year, or with
fine, or with both.

Scope: — This section punishes an intrusion on privacy (e).

This section makes intention to insult the modesty of a woman the essential
ingredient of the offence. This intention was held wanting where the accused
entered in the middle of the night the room of the complainant with whom he had
previous acquaintance and who used to speak to strangers and give pamupari to
visitors (f). In order to constitute an offence under this section there must be
some individual woman or woman whose modesty has been outraged (g).

Procedure i — Non-cognizable — -Warrant — Bailable Compoundablc with

the permission of the Court before which the prosecution is pending — Triable
by Presidency Magistrate or Magistrate of the first class.

Charge : — I ( name and office of Magistrate , etc. $ ) hereby charge you (name
of accused ) as follows : —

That you, on or about the day of , at ,

intending to insult the modesty of one XY uttered the words to wit

(or made some sound or gesture, to wit , or exhibited some object,

to wit intending that such word or sound should be heard or seen

(or that such gesture or object should be seen by the said XY) or intruded upon
the privacy of the said XY and that you thereby committed an offence punishable
under s. 509 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried on the said charge.

Insulting the modesty of a woman: — Where the intention was to insult
the modesty of the complainant’s wife by intruding upon her privacy, the Calcutta
High Court held that the accused was guilty under this section (h).

‘exhibits any object’: — “ No doubt, the word exhibition does ordinarily
express the idea of actually showing a thing to a person, on the other hand such

showing need not be immediate In the present

case the accused did not himself gg to the complainant and show her the letter,
but he employed the agency of the Post office for the purpose of securing its receipt

by her In my opinion, the fact that the accused used these means

for letting the complainant see the letter, instead of himself taking it and showing
it to her, is immaterial” (i).

Where the accused sent by post to the complainant, an English nurse, a letter
containing indecent overtures and suggesting that the complainant should take
certain action in order to show whether she accepted the terms mentioned in the
letter, the Bombay High Court held that the letter, though enclosed in an envelope,
was an object which was exhibited to the woman to whose address it was posted
and that the accused intended to insult the modesty of*the complainant and
accordingly upheld his conviction under this section (f).

(e) Premanunda Shaha v. Brindaban , (1895) 22 C. 994 (998), following Balmakand
’ Ram v. Ghansamram , (1894) 22 C. 391.

(f) Phiez Muhammad , (1903) 5 Bom. L. R. 502.

(g) Khaxr Mahomed, (1924) 19 S. L. R. 87 : 26 Cr. L. J. 904 : 86 I. C. 968 :
A. I. R. (1925) Sind. 271.

(h) Balmakand Ram v. Ghanasamram, (1894) 22 C. 391, see Chotelal , (1918) 40
A. 221 ; Karali Prasad Guru , (1916) 44 C. 358 (366).

(i) Per Fawcett, J., in Tqrak Das Gupta, (1925) 50 B. 246 : 28 Bom. L. R. 99.

0) Ibid. ,

[CHAP. XXIII

1046 THE INDIAN PENAL CODE

510. Whoever, in a state of intoxication, appears in any
public place, or in any place which it is a
by^drunken'^ereon' 10 trespass in him to enter, and there conducts
himself in such a manner as to cause annoy
ance to any person, shall be punished with simple imprisonment
for a term which may extend to twenty-four hours, or with fine
which may extend to ten rupees, or with both.

This section punishes misconduct in a public place by a drunken person.

Procedure : — Non-cognizable — Warrant — Bailable — Not compoundable —
Triable by any Magistrate — Triable summarily.

CHAPTER XXIII.

Of Attempts to Commit Offences

511. Whoever attempts to commit an offence punishable
by this Code with transportation or im-
tempHng me t n o commit prisonment, or to cause such an offence to
offences punishable with be committed, and in such attempt does any
smiment atl ° n ° r impn " act towards the commission of the offence,
shall, where no express provision is made
by this Code for the punishment of such attempt, be punished
with transportation or imprisonment of any description provided
for the offence, for a term of transportation or imprisonment
which may extend to one-half of the longest term provided for
that offence, or with such fine as is provided for the offence, or
with both.

Illustrations .

(a) A makes an attempt to steal some jewels by breaking open a box, and finds
after so opening the box, that there is no jewel in it. He has done an act towards
the commission of theft, and therefore is guilty under this section.

(6) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's
pocket. A fails in the attempt in consequence of Z's having nothing in his pocket.
A is guilty under this section.

«

Legislative changes i — Chapter XXIII applies to offences punishable under
Ss. 121 -A 294- A, and 304- A — See the Indian Penal Code Amendment Act, 1870
(XXVI of 1870) s. 13.

Analogous law : — A prisoner cannot be convicted of an assault with an
intent carnally to know, etc., a girl above ten and Under twelve years of age, nor
of a common assault, if she be consenting. The proper charge is of misdemeanour
in attempting to commit a statutable offence (k).

(k) Martins , (1840) 2 Mood. C. C. $3 ; Hensler , 11 Cox. C. C. 570. *

SEC. 511 ]

OF ATTEMPTS TO COMMIT OFFENCES

1047

Cockburn, C. J., held : <f The word * attempt * clearly conveys with it the
idea that if the attempt had succeeded, the offeree charged would have been
committed" (1).

Sir James Stephen defines , an attempt to commit a crime as follows An
act done with intent to commit that crime and forming part of a series of acts which
would constitute its actual commisson if it were not interrupted. The point at
which such a series of acts begins cannot be defined but depends upon the cir-
cumstances of each particular case" (m).

Procedure — same as for the offence attempted.

Charge : — When a person is charged with an offence, he may be convicted
of an attempt to commit such offence although the attempt‘is not separately charged.
A person charged for a principal offence may be convicted of an attempt (n).

Form of charge s — / ( name and office of Magistrate , etc.) hereby charge you
( name of accused) as follows : —

That you, on or about the day of , at ,

attempted to commit ( specify the offence attempted) and in such attempt did a

certain act towards the commission of the said offence, to wit , ( mention it),

and that you thereby committed an offence punishable under s. ( principal

offence) and s. 511 of the Indian Penal Code and within my cognizance (or within
the cognizance of the Court of Session or the High Court).

And I hereby direct that you be tried (by the said Court) on the said charge.

What is an attempt ? : — There are four stages of a crime : —

(1) Intention.

(2) Preparation.

(3) Attempt.

(4) Completed crime.

(1) Intention : — Lord Mansfield, C. J., observed : "So long as an act rests
in bare intention, it is not punishable by our laws ; but immediately when an act
is done, the law judges not only of the act done, but of the intent with which it
is done ; and if it is coupled with an unlawful and malicious intent, though the
act itself would otherwise have been innocent, the intent being criminal, the act
becomes criminal and punishable" (d).

Coleridge, J., held : " The law will not take nolice of an intent without an
act. Possession is no such act. But procuring, with the intent to commit the
misdemeanour, is the first step towards the committing of the misdemeanour" (p).

In most cases, intention has to be inferred from the nature of the acts done
and from all the circumstances of the case (q).

Ranade, J. held : " Mere intention not followed by any act cannot constitute
an offence, and an indirect preparation, which does not amount to an act which
amounts to a commencement of the offence, does not constitute either a principal
offence, or an attempt or abetment of the same (r). •

In order to constitute the offence of attempt to murder under s. 307 of the
Penal Code, the act committed by the prisoner must be an act capable of causing

(l) Mcpherson , Dears 6* B. 197 (202) — no longer good law.

(m) Stephen's Digest of Criminal Law, Art. 50.

(n) Billinghurst, (1922) 27 C. W. N. 821 : A. I. R. (1924) Cal. 18.

(o) Scofield, (1784) Cald. 397 (403).

(p) Per Coleridge, J., in Dugdale , (1823) 1 E. and B. 435 (439).

(q) Naga Tun Baw , (1912) 0 L. B. R. 100 (F. B.) : 5 Bur. L. J. 175 : 13 Cr. L. J.

864: 171. C. 800. *

(r) Baku, (1899) 24 B. 287 (291). f

1048

THE INDIAN PENAL CODE

[CHAP. XXIII

death In the natural and ordinary course of events. Where, therefore, the prisoner
presented an uncapped gun at E. G. (believing the gun to be capped) with the
intention of mudering him, but was prevented from pulling the trigger, it was
held that he could not be convicted of an attempt to murder upon a charge framed
under s. 307 but that under the same circumstances, he might be convicted
upon a charge of simple attempt to murder framed under s. 51 1 in connection with
Ss. 299 and 300 (s).

To constituce the offence of attempt under this section there must be an act
done with the incention of committing an offence, and for the purpose of com~
mitting that offence and the act must be done in attempting the commission of
the offence (t).

(2) Preparation : — The act of causing the publication of banns of marriage
is not an attempt to marry but amounts to preparation. Pearson J. held : 44 An
attempt to commit a crime is to be distinguished from an intention to commit it
and from preparation made for its commission" (u).

The law allows a locus paenitentae and will not hold that a person has attempted
a crime until he has passed beyond the stage of preparation (v).

Where R with the intention of committing suicide by throwing herself into a
Well ran to the well, where she was arrested, and she was convicted under s. 309,
Muttusami Aiyar, J., in reversing the conviction held: “There is no
doubt that the accused intended to commit suicide and that she prepared to carry
out that intention and proceeded to the well. She might have, however, still changed
her mind, and she was caught before she did anything which might be regarded
as the commencement of the offence of which she is convicted. I set aside the
conviction" (w).

Where the accused was convicted under Ss. 417 and 511 the Allahabad
High Court held that the accused had made preparations for cheating and had
not completed an attempt to cheat and accordingly set aside the conviction (x).

Distinction between preparation an<J attempt Parke, B. held : “ The
intention to commit a misdemeanour is not criminal. Some act is required, and
we do not think that all acts towards committing a misdemeanour are indictable.
Acts remotely leading towards the commission of the offence are not to be con-
sidered as attempts to commit it, but acts immediately connected with it are* r (y).
This case was followed in another English case where Lord Reading C. J. held:

But there must be some act beyond mere preparation if a person is to be charged
with an attempt. Applying the rule laid down by Parke, B., we think that the
appellant s act was only remotely connected with the commission of the full offence,
and not immediately connected with it. If we were to hold otherwise, we should
be going further thfn any case has ever yet gone, and should be opening door to
convictions for acts v^hich are not at present criminal offences” (z).

Blackburn, J., held : 44 There is no doubt a difference between the preparation
antecedent to an offence, and the actual attempt. But if the actual transaction

(s) Cassidy , (1867) 4 Bom^ H. C, R. (Cr. C.) 17.

(t) Ramsarun Ckowbey , (1872) 4 N. W. P. H. C. ft. 46.

(u) Peterson, (1876) 1 A. 316 ; also see C. Srinivasan , (1902) 26 M. 726.

(v) Padala Venkataswami, (1881) 3 M. 4 (5).

(w) Ramakka , (1884) 8 W. 6 (6).

(x) Dhundi, (1886) 8 A. 304.

(y) Eagleton, (1865) Dears C. C. 515 (538).

(a) Robinson , (1916) 2 K, B. 342. •

SEC, 511 ] OF ATTEMPTS TO COMMIT OFFENCES 1049

has commenced which would have ended in Jthe crime if not interrupted, there
is clearly an attempt to commit the crime*’ (a).

The case of Ramsaran Chowbey (b) was distinguished by the Allahabad High
Court where it was held that in the former case the offence of forgery had not
proceeded beyond the stage of preparation but in the case before the Court there
had been an actual fabrication — something had been done (c).

One Chaturi calling himself Kehri, the son of Bhupal Kachhi, went to a stamp
vendor, accompanied by a man named Kalyan Singh, and purchased from him
in the name of Kehri a stamp paper of the value of 4 annas. The two men then
went to petition-writer and Chaturi again giving his name as Kehri they asked
the petition-writer to write for them a bond for Rs. 50 payable by Kehri to Kalyan
Singh. The petition-writer commenced to write the bond, but his suspicions
being aroused, did not finish it and took Chaturi and Kalyan Singh to the nearest
thana. It was held that under the above circumstances Kalyan Singh was rightly
convicted of an attempt to commit the offence defined in s. 467 and Chaturi
of abetment of the said attempt (d).

The prisoner ordered certain receipt forms to be printed similar to those
used by the Bengal Coal Company, and one of these forms was actually printed
and the prisoner corrected the proof ; it was further found that the prisoner had
an intention of making such addition to the printed form as would make it a false
document and that he did all these acts dishonestly and with intent to commit
fraud. On these facts the Calcutta High Court held that a conviction under Ss. 465
and 511 was bad(e).

This section is meant not only to cover the penultimate act towards completion
of an offence but also acts precedent, if those acts are done in the course of the
attempt to commit the offence, are done with the intent to commit it and done
towards its commission. Whether any given act or series of acts amounts to an
attempt of which the law will take notice, or merely to a preparation, is a question
of fact in each case (f). Knox, J„ while referring to the case of Riasat Ali (e)
from which view he dissented, observed as follows : — “ In that case the learned
Chief Justice appears to have a # cted upon English precedents, and those
precedents, of no modern date. So tar as I am concerned, I feel myself unable to
follow the English law, because there appears to me a wide difference between
the meaning of the word, ‘ attempts ’ as understood by English lawyers in the
phrase 4 attempt to commit a felony * ; and the word * attempt * as actually de-
fined in the Indian Penal Code ” (f). Blair, J., in Maccreas case (g) observed
as follows: — “The difficulty with s. 511 might easily have been removed by
saying that where in such an attempt, using the word in the larger sense, any person
does any act towards the commission of an offence he shall be held to have
committed an ‘attempt’ within the meaning of this section. That I take to be
the real meaning and drift of the section, differentiating in a igarked manner the
definition of ‘ attempt * in the Indian Penal Code and that accepted English
doctrine”.

(a) Edward Cheeseman , (1882) 1 Leigh and Cave C. C. D. 140 (145) : 9 Cox. 100.

(b) (1872) 4 N. W. P. H. C. R. 48..

(c) Mulct, (1879) 2 A. 10&

(d) Kalyan Sing , (1894) 16 A. 409.

(e) Riasat Alt, (1881) 7 C. 352, followed in Urn Hoe , (1894) 1 U. B. R. 279 ;
22 C. 131 (138).

(f) Mac Cfaa, (1893) 15 A. 173 ; Chandi Prasad v. Abdul Rahman , (1894) Anant

Vinayak , (1900) 25 B. 10 : 2* Bom. L. R. 599 (602).

(g) 15 A. 173 (182, 183). •

1050

THE INDIAN PENAL CODE

[CHAP. xXiii

A prisoner pleaded guilty at Assizes to an indictment charging hjm with
having attempted to commit an unnatural offence with domestic fowls was
sentenced to a term of imprisonment ; after the judge left the Assize tbwn his
attention was called to an unreported case whicji was said to have decided that a
duck was not an 4 animal ’ within the the meaning of 24 and 25 Vicl. c. 100, s. 61
and he stated the case requesting the opinion of the Court for Crown Cases Re-
served whether the conviction was good, the Court for Crown Cases Reserved
held that the indictment was good, and that the prisoner (boy) was rightly con-
victed upon his own confession of an attempt to commit an unnatural
offence (h).

Garth, C. J., in Riasat Ali’s case (e) based his decision on the observations of
Lord Blackburn in Cheesemans case (a 1 ) and of Cockburn, C. J., in M'Phersori s case
(h 1 ), to the following effect : — 44 The word ‘attempt* clearly conveys with it the idea,
that if the attempt had succeeded, the offences charged would have been committed.
An attempt must be to do that which, if successful, would amount to the felony
charged.*’ McPhersons case (h 1 ) was followed in Collins case (h 2 ) which is said
to have been overruled in Reg. v. Brown (h) and Reg v. Ring (h 3 ). It may be
pointed out that in Collins case (h 2 ) it was ruled that it was not indictable to attempt
to pick a pocket which turned out to be empty. The learned editors of the second
edition of Pritchard’s Quarter Session at pp. 900-903 contend that /?. v. Brown (h)
and R . v. Ring (h 3 ) have not completely overruled, R. v. Collins (h 2 ) (see this passage
quoted in (h 4 ). In the Draft Criminal Code prepared by Lord Blackburn, and
Berry, Lush and Stephen, J., the following definition appears (Art. 74) : — " An
attempt to commit an offence is an act done or omitted with intent to commit
that offence, forming part of a series of acts or omissions which would have consti-
tuted the offence if such series of acts or omissions had not been interrupted either
by the voluntary determination of the offender not to complete the offence or by
some other cause.” The first part of this definition was accepted in R. v. Lait-
wood [4 Cr. App. R. 248 (252).] Stephen in his Digest, Crim. Law, (6th ed.), p. 49,
points out that the Commissioners appended a note to this definition which stated the
law differently from R. v. Collins which at the date of the drafting of the Code had
not been overruled.

For the distinction between 4 preparatirn ’ and ‘attempt’ it would seem that
it is material to consider on this point whether there is any further act on the
defendant’s part remaining to be done before the completions of the crime. See
R. v. Eagleton, Dears at p. 538 and Cheeseman , L. & C. at p. 145. The note appended
to the Draft in English law is : ’* Every one who, believing that a Certain state of
facts exists, does or omits an act the doing or omitting of which would, if that
state of facts existed, be an attempt to commit an offence, attempts to commit that
offence, although its commission in the manner proposed was by reason of the
non-existence of that state of facts at the time of the act or omission impossible.”
In accordance with the above definition it was held that if a pregnant woman believ-
ing she is taking a ^'noxious thing * within the meaning of the offences against the
Person Act, 1861 , s. f>8, does, with intent to procure her own abSrtion, take a thing in
fact harmless, she is guilty of attempting to commit an offence against the first
part of the sections (h 5 ). «

(h) Brown, (1889) 21 Q. B. D. 357. •

(al) 352 1 Leigh and Cave C. C. D. 140 (145). ~

(hi) (1857) Dears 9 B. 202.

(h2) (1864) 33 L. J. (M. C.) 177 : 9 Cox. 497.

(h3) (1892) 17 Cox. 491-61 L. J. M. C. 116.

(h4) Archbold. Practice and Pleading : 28 ed. p? 1443.

(h5) Archbold, Practice and Pleading, 28 ed's pp, 1445-1444.

SEC. 511 ]

OF ATTEMPTS TO COMMIT OFFENCES

1051

Whether Collins case, supra , has been expressly overruled or not, Riasat Alts
case . {$* it is submitted, cannot be treated as bad law as it is based on the decision
of Blackburn J., in Cheeseman $ case (a) and finds further support from the decision of
Kennedy, J., in R. v. Linnerer : " It is always necessary that the attempt should be
evidenced by some overt act forming part of a series of acts which if not interrupted,
would lead in the commission of the actual offence (h 6 ).'* In Rex v. White (h 7 )
the learned Judges found some difficulty in accepting the view of Kennedy J., on the
point that although an attempt impiles the intent, an intent does not necessarily
imply an attempt ' ; the view of Kennedy, J., regarding the definition of ‘ attempt *
as noted above had not been doubted. Bachelor , /., in Chand Khans case (h*)
followed Chees mans case (a).

The accused dug a hole in the wall of the complainant's dwelling house jluring
the night with intent to complete that hole in order to make their entry into the
house through it, and having so entered to commit a theft in the house. In fact,
the hole was not completed in the sense that it did not completely penetrate
from one side of the wall to the other, as the accused was interrupted before they
could complete it. It was held that the accused's acts did in law amount to an
attempt, for the actual transaction, the distinct overt act, was begun and carried
through to a certain point but was not completed by reason of the accused's being
interrupted (i).

A clerk employed to weigh the carts of suger-canes upon a machine and enter
the (1) gurs , (2) tare and (3) net weights in register, weighed a cart of suger-cane
and entered its gross weights as 16 maunds 30 seers, but soon after the cart was
reweighed by a superior officer and found to be only 14 maunds and 20 seers. The
clerk h^ltiot filled up the other columns fixing the liability absolutely upon the
company* when he was interrupted. It was held that the writing of the false
figure in the register had not passed from the stage of preparation into that of an
attempt to commit the offence of cheating (j).

An accused person was detected on the roof of a bazar with an open clasp
knife in his hand and two gunny bags. It was found that he had come there with
the intention of committing theft. It was held that the matter not having pro-
ceeded beyond the stage of preparation, the accused could not be convicted of an
offence under Ss. 357 and 51 1 but he was guilty of an offence under s. 447 of
the Qode (k).

/ 4

Patterson J. (in summing up) said : "In order to find the prisoner guilty
of an assault with intent to commit a rape, you must be satisfied that the prisoner,
when he laid hold of the prosecutrix, not only desired to gratify his passions upon
her person, but that he intended to do so at all events and notwithstanding any
resistance on her part" (I). An indecent assault upon a woman does not amount
to an attempt to commit rape, unless the Court is satisfied that there was a deter-
mination in the accused to gratify his passions at ell events and in spite of all

(1906) 2 K. B. 99 (103).

(h7) (1910) 2 K. B. 124 (133).

(h8) 37 B. 563 (555)

(i) Chandkhasalabatkha, ,((912) 37 B. 553 : 15 Bom. L. R. 564 : 14 Cr. L. J. 451 :
) I. C. 611.

(j) Lakshmi Prasad, (1922) 23 Cr. L. J. 108 : A. I. R. (1923) 307.

(k) Batwa fChan, (1919) 10 L. B. R. 51 : 12 Bur. L. T. 22 : 20 Cr. L. J. 571 : 52

C. 59. ’

(l) James Llyod, (1836) 7 C. and P. 318.

1052

THE INDIAN PENAL CODE

[CHAP. XXIII

resistance (m). A person physically incapable of committing the offence of rape
cannot be found guilty of an attempt to commit that offence (n). Whgfe the
accused took off a girl’s clothes, threw her on to the ground and then sat down
beside her, it was held that the accused committed an offence under s. 354, and
was not guilty of an attempt to commit rape (o).

Lortwilliams J., in an unreported decision (p ) has reviewed all the decisions
on the point as to what constitutes an attempt and His Lordship has agreed with
the view taken in Muccera’s case (q)that English law is different from Indian law
and he has further agreed with the view taken in Ramsarans case (r) and the view
of the Judicial Commissioner in Rupsir’s case (s).

He has further held that the Calcutta view cannot be supported as the decision
in Rtasat Alts case (t) was based upon the decision of M'Phersoris case (u) which
was followed in Collins case (v) which again had been overruled in England but
Mukerjee, J., in Amritabazar Patrika case (w) had not noticed that Collin’s
case (v) had been overruled.

In Mi. Rupsir Parhu , (s) it has been held that to constitute an attempt to
commit an offence punishable under this section there must be an act done towards
the commission of the offence. It is not enough that an act should be done with
the intention to commit an offence which is unsuccessful because it could not
possibly result in the completion of the offence. Where a woman with a view to
poison her husband administered to him a substance which was harmless and which
could not in any circumstances bring about his death but which she believed to be
poison, held, that she could not be convicted under s. 51 1 read with s<*328, her act
which was complete in itself and not constituting an offence could "not institute
an attempt to commit an offence. '• * *

In a case of Asgar Ali Predhania (p) the case for the prosecution was that the
accused administered a noxious drug to the woman he loved to secure abortion
but as there was no evidence to show what was the quantity administered and as the
drug by itself, according to Taylor on Medical Jurisprudence, 5th edition, could
not cause abortions, Lortwilliams and McNair J.J. acquitted the appellant.

It has been held by Mullick, J., (Remfry, J. concurring) that the High Court
can, under s. 423 (1) (b), Cr. P. Code, sentence the accused under Ss. 376/511, I.P.C.,
although he was acquitted of the charge under s. 376, I. P. C., and convicted under
s. 354, I. P. c.( 0l ). The view of Remfry, J., in this case when he distinguished
Kishan Singh's case (o 3 ) does not seem to be correct because (1) s. 439, Cr. P. Code
does not preclude interference on facts in revision, (2) in a jury appeal there is no

(m) Shanker, (1881) 5 B. 403 (404).

(n) Gopala, (1896) Rat. Unrep. Cr. C. 866 ; see also R. v. Elder sha ; (1828)
3 C. and P. 396; R. v. Philips , (1839) 8 C. and P. 736.

(o) Nuna , (19122) P. L. D. No. 116 of 1912 : P. W. R. No. 16 of 1912 (Cr.) : 13
Cr. L. J. 469: 16 I. C. 309.

(p) Asgar AH Predhania , (1933) Cr. Appls. 27 of 1933. decided on 21st July 1933.
Lortwilliams and McNair J . J .

(q) (1893) 15 A. 173.

(r) (1872) 4 N. W. S. H. C. R. 46.

(s) 9C. P.L. R. 14.

(t) 7 C. 352. ;

(u) (1857) Dears 9 B. 202.

(v) (1864) 33 L. J.(M. C.) 171.

(w) 47 C. 190.

(01) Hanuman Sarnia , (1932) 36 C. W. N. 1153.

(02) 65 I. A. 390 33 C, W. N. 1 (P. C.).

SEC. 511 ]

OF ATTEMPTS TO COMMIT OFFENCES

1053

appeal on facts, but in the case under review the trial was held with the aid of
assessors and as such appeal lay on facts.

The mere fact of being in possession of a fi re ball is by no means sufficient
to warraift a conviction for attempting to cause mischief by fire. In order to
support a conviction for attempting to commit an offence of the nature described
in s. 511, it is not only necessary that the prisoner should have done an overt
act “ towards the commission of the offence " but that the act itself should have been
done “in the attempt " to commit it (p).

A mere act of preparation for the commission of an offence is not such an
act towards its commission as amounts to an attempt (q). Jackson, J. observed :
“ In the offence of cheating the actual transaction must have begun and an act
to bear upon the mind of the victim must have been done before a preparation
can be said to be an attempt" (r).

Where a false report was made to police, alleging the disappearance of a
bullock, and the case for the prosecution was that the making of the report was
the first step in an intended course of action, the ultimate object of which was
the bringing of a false charge against a certain person, it was held that even if that
was established the act went no further than preparation for the commission of an
offence, and that the report, not being that of a cognizable offence and in itself
calling for any action by the police, fell short of the conditions justifying a con-
viction under s. 182 (s).

(3) Attempt : — Bishop says: “The authorities agree that there are in
misdemeanour no accessories either in name or in the order of the prosecution.
When, therefore, one sustains in misdemeanour a relation which in felony makes
an accessoryjbefore the fact, if what he does is of sufficient magnitude, he is to be
treated a* a* principal ; the indictment charges him as such, and unless the pleader
chooses to make the allegation in the accessorial form, as he may, it does not men-
tion that the hct was through another; and he may be proceeded against either
in advance of the doer or afterwards or jointly with him ” (t).

Mitter J. held : — “ In order to support a conviction for attempting to commit
an offence of the nature described in s. 511, it is not only necessary that the
prisoner should have done an overt act * towards the commission of the offence *
but that the act itself should have been done 4 in the attempt * to commit** (u).
An attempt is an intentional preparatory action which fails in object through
circumstances independent of the person who seeks its accomplishment (v).

Definitions (of attempt) are dangerous things, and the only safe way of de-
ciding in any particular case whether an 4 attempt ’ to commit a crime has been
made or not is to consider the facts of the case and to decide in accordance with
the dictates of common sense. Where, for instance, the accused manufactured
spurious trinkets and took them to N saying they were of gold, and that they were
stolen property (which was also not true) and that he (accused) did not like to
sell them in bazar and asked him ( N ) to buy, it was held, that the act of the accused
amounted to attempt of cheating punishable under s. 420/5 M (w).

(p) Per Mitter, J., in Doyal Bowrie, (1869) 3 B. L. R. App. (Cr.) 65.

(q) Mating Po Hunyin , (1923) 2 R. 63 (65), following In the matter of R. Mac .
Crea, (1893) 16 A. 173.

(r) Raman Chettiar, (1926) 28 Cr. L. J. 70 (97).

(s) Algoo , (1919) 18 A. L. J! 636 : 21 Cr. T. J. 576 : 67 I. C. 96.

(t) Bishop, Vol. I, p. 685.

(u) Dayal Bowri , (1869) 3 B. L. R. App. (Cr.) 55 (57).

(v) Per Jenkins, J., in Luxman Narayan , (1899) 2 Bom. L. R. 286. — Case on
Sedition (296).

(w) . Abdullah , P. L. R. No. 66 of 1914 : P. W. R. No. 13 of 1914 (Cr.) : P. R.
No. 14 of 1914 (Cr.) : 15 Cr. L. J. 265 ; 23 I.C. 473.

1054

THE INDIAN PENAL CODE

[CHAP. XXIII

41 An attempt is an act done in part execution of a criminal design, amounting
to more than mere preparation, but falling short of actual consummation and
possessing except for failure to consummate all the elements of substantive crime.
In other words, an attempt consists in the intent to commit a crime, ^combined
with the doing of some act adapted to but falling short of its actual commission ;
it may consequently be defined as that which if not prevented would have resulted
in the full consummation of the act attempted” (x).

If the actual transaction has commenced which would have ended in the
crime if not interrupted, there is an attempt to commit the crime (y);

Where the accused did all they could do to perfect their offence, i.e. f overt
act was begun which would have led to the completed offence but for an inter-
ruption arising independently of the will of the accused, the Bombay High Court
set aside the order of acquittal and held that on the facts there was a complete
case ot an attempt to cheat and restored the conviction of the accused under
s. 420/511 (z).

Chandravarker J. held : ‘‘An attempt to commit an offence is under our
Penal Code punishable. All that is necessary to constitute such an attempt is
some external act, something tangible and ostensible, of which the law can take
hold as an act showing progress towards the actual commission of the offence.
It does not matter that the progress was interrupted” (a).

Where the accused tendered a parcel of opium at the Post Office for despatch
to Burma but the parcel was opened by the Post Master at the place of despatch
on account of information received and sent on to Burma by the postal authorities
marked * doubtful ' with a view to the identification of the consignee, it was held
that the accused did not commit the offence of exporting opiuqv'llnd'er s. 9 (e)
of the Opium Act, as the parcel was seized by the authorites before despatch and
it ceased to be in the Post Office on accused's account before it left India for
Burma (b).

To ask for a bribe is an attempt to obtain one, and a bribe may be asked for
s effectually in implicit as in explicit terms. Where therefore B who was em-
ployed as a clerk in the Pension Department in an interview with A who was an
applicant for a pension after referring to his own influence in that department
and, instancing two cases in which by that Influence increased pensions had been
obtained, proceeded to intimate that anything might be effected by “ Kar-rawai ”
and on the overture being rejected concluded by declaring that A would rue and
repent the rejection of it, it was held that the offence of attempting to obtain a
bribe was consummated (c). ,

In Ramsaran Chowbeys case (c x ) it was held that English law is inapplicable
and to constitute the offences of attempt there must be act done with the intention
of committing an offence, and for the purpose of committing that offence,
and it must be done in attempting commission of the offence (c z ).

(x) Per Mookerjee, J., In the matter of the Amrita Bazar Patrika Ltd. (1910)

47 C. 190 : 30 C. L. J. 289 (304) : 23 C. W. N. 1057 (1081) : 54 I. C. 578 (S. B.).—

following collins , (1864) 234 P. Cox 497.

(y) Chand Khan Salabatkha, (1912) 37 B. 553 : 15 Bom. L. R. 564 : 14 Cr. L. J.
451 : 20 I. C. 611. following Cheseman , (1862) 9 Cox. 100.

(z) Man Singh Dagi Patil, (1913) 15 Bom. L. R. 568: 14 Cr. L. T. 433 : 20.
I. C. 693.

(a) Ganesh Balawant Modal , (1909) 34 B. 378 (381) : 12 Bom. L. R. 21.

(b) Boston , (1911) P. L. R. No. 108 of 1911 : P. \V. R. No. 6 of 1911 (Cr.) : P, R.

No. 2 of 1911 : 12 Cr. L. J. 116 : 9 I. C. 682. '

(c) Baldeo Sahai, (1879) 2 A. 253. ,

(cl) (1872) 4 N. W. P. H. C. R. 46 (4&48).

OF ATTEMPTS TO COMMIT OFFENCES

1055

SEC. 511]

*any act*. — “The term ‘any act’ excludes the notion that the final act
short of actual commission is alone punishable, and the motion that any of the
other acts would be without the range of this section is probably derived from the

rulings in the English cases (d). Ranade J. t held that this

section does not relate only to the penultimate act, but to all preceding acts if
they were done with the intent to commit or facilitate the commission of the
act (d x )«

* where no express provision is made by this code*.— -This section is
not applicable to cases of attempts which have been made punishable by express
provisions of this code e.g., the following sections : — Ss. 124, 125, 130, 161, 162,
163, 196, 198, 200, 213, 237, 239, 240, 241, 307, 308, 309, 385, 387, 389, 391, 393,
394 and 460.

Enhanced punishment : — S. 75 does not apply to cases which are confined
to this section. The offences which come under s. 51 1 must be punished entirely
irrespective of s. 75 (e).

(d) Per Blair, J., in MacCrea, (1893) 15 A. 173 (181).

(dl) Anant Vinayak Puranik, (1900) 2 Bom. L. R. 653.

(e) Bharise, (1895) 17 A. 123; Sheikh Camman, 1 P. L. 1, 11 : 21 Cr. JL. J.

143 : 54 I. C. 623.

THE CATTLE-TRESPASS ACT.

ACT 1 OF 1871.

13th January , 1871.

An Act to consolidate and amend the law relating to Trespasses

by Cattle .

As Amended by Act XVII of IQ21.

VI 7 HEREAS it is expedient to consolidate and amend
vv law relating to trespasses by cattle ; It is hereby em
as follows : —

the
enacted

CHAPTER I.

Preliminary.

•I. (1) This Act may be called the Cattle-trespass Act,
1871 ; and

(2) It extends to the whole of ^British India except the
Presidency towns and such local areas as the Local Government,

1 For the Statement of Objects and Reasons, sec Gazette of India,
1870, Pt. V, p. 310 ; for Proceedings in Council, see ib. t supplemeit, pp.
1150, 1200, 1290, and Supplement, 1871, p. 178.

2 This section was substituted by the Cattle-trespas.9 Act (1871)
Amendment Act, 1891 (I of 1891), s. 1, Genl. Acts, Vol. IV.

3 This Act has been declared in force in Upper Burma generally
(except the Shan States), by the Buripa Laws Act, 1898 (XIII of 1898),
s. 4 (1) and Sch. 1, Bur. Code; in the Hill District of Arakan by the
Arakan Hill District Laws Regulation, 1874 (IX of 1874), s. 3, ibid ; in
British Baluchistan, by the British Baluchistan Laws Regulation, 1890
(I of 1890), s. 3, Bal. Code; in the Sonthal Parganas, by the Sonthal
Parganas Settlement Regulation (III of 1872) as amended by the Sonthal
Parganas Justice and Laws Regulation, 1899 (III of 1899), s. 3, Ben. Code ;
and in Angul and the Khondmals, by the Angul District Regulation, 1894
(I of 1894), s. 3, ibid. It has been declared by notification under s. 3 (a)
of the Scheduled Districts Act, 1874 (XIV of 1874), to be in force in the
following Scheduled Districts, namely

The Districts of Hazaribagh, Lohardaga and Manbhum, and
Pargana Dhalbhum and the Kolhan in the District of Singbhum
(Gazette of India, 1881, Pt. I, p. 504 ; the District of Lohardaga
included at this time the present District of Palamau, which
was separated in 1894, the District of Lohardaga is now called the
Ranchi District, see Calcutta Gazette, 1899, Pt. I, p. 44) ; and
the North-Western Provinces Tarai ; Gazette of India, 1870,
Pt. I, p. 605 ; the Scheduled Districts in Gan jam and Vizaga-
patanr, ibid, 1899, Pt. 1, p. 720.

It has been extended by notification under s. 16 of the Burma Laws
Act, 1898 (XII of 1898), to the Civil Station of Lashio in the State of
Hsenwi, Burma Gazette, 189J, Pt. I, p. 584.

It. has been extended to Ihe-Civil Station of Taunggyi in the State of
Yawng Hwe, ibid , 1895, Pt. I, p. 550, 9

73

Preamble.

Title and
extent.

Repeal of
Acts.

References
to repealed
Acts.

Interpreta-

tion-clause.

Establish-
ment of
pounds.

ii THE INDIAN PENAL CODE

by notification in the official Gazette, may from tftne to "time
exclude from its 'operation.

(3) The Local Government may, at any time, by notifica-
tion in the official Gazette, cancel or vary a notification under
sub-section (2).

2 . The Acts mentioned in the schedule hereto annexed
are repealed.

References to any of the said Acts in Acts passed sub-
sequently thereto shall be read as if made to this Act.

All pounds established, pound-keepers appointed and
villages determined under s Act No. Ill of 1857 ( relating to
trespasses by cattle), shall be deemed to be respectively established,
appointed and determined under this Act.

3 . In this Act : —

“ Officer of police " includes also village watchman, and

" cattle ” includes also elephants, camels, buffaloes, horses,
mares, geldings, ponies, colts, fillies, mules, asses, pigs, rams,
ewes, sheep, lambs, goats, and kids, 3 [and

“ local authority ” means any body of persons for the time
being invested by law with the control and administration of
any matters within a specified local area, and

" local fund ” means any fund under the control or manage-
ment of a local authority].

CHAPTER II.

Pounds and Pound keepers.

4 . Pounds shall be established at such places as the
Magistrate of the District, subject to the general control of the

Local Government, from time to time < directs.

(

The village by which every pound is to be used shall be
determined by the Magistrate of the $ District.

The maintenance of private cattle pounds was incompatible with
provisions of the Cattle-trespass Act ; and their establishment under the
superintendence and control of Government, as being under the circum-
stances essential for the maintenance of law and order and the peace and
good government of the country, was an act of the extensive Government
with which it was not competent for the Civil Court to interfere.6

1 I$pr notification issued by the Government of the United Provinces
under this power, see U. P. R. and O.

2 Act III of 1857 is repealed by this Act — see Schedule.

3 These words were added to s. 3 by the Cattle-trespass Act (1871)
Amendment Act, 1891 (I of 1891) s. 2.

4 For rules and forms as to cattle-pounds in Sind, see Bom. R. & O.

5 In the Civil Station of Las hi o in the Shan State of North Hsenwi,
the jurisdiction, powers and duties of a District Magistrate or of a Sub-
divisional Magistrate, being a Magistrate of the first class, are exercised
by the Superintendent of the Northern Shan States, and every Assistant
Superintendent of the Shan States, respectively — see Burma Gazette,
1898, Pt. I, p. 585.

6 Bai Bikramdas v. Secy, of State J 39 I. A. 31 : 39 Q. 615 ; 16

C. W. N. 362, *

CATTLE-TRESPASS ACT

iii

5 . [Repealed by section 3 of the Cattle-trespass Amend-
ment Act No. XVII of 1921].

6 . The Magistrate of the District shall also appoint for
each pound a pound-keeper :

Provided that, in the Presidency of Fort St. George, the
heads of villages and, in the Presidency of Bombay, the police
patils or (where there are no police patils) the heads of villages,
shall be ex officio the keepers of village-pounds.

Every pound-keeper appointed by the Magistrate of the
District may be suspended or removed by such Magistrate.

Any pound-keeper may hold simultaneously any other office
under Government.

Every pound-keeper shall be deemed a public servant
within the meaning of the Indian Penal Code. 1

Duties of Pound-keepers.

7 . Every pound-keeper shall keep such registers and
furnish such returns as the Local Government from time to time
* directs.

8. When cattle are brought to a pound, the pound-keeper
shall enter in his register —

(a) the number and description of the animals,

(b) the day and hour on and at which they were so brought,

(c) the name and residence of the seizer, and

(d) the name and residence »f the owner, if known, and

shall give the seizer or his agent a copy of the entry.

9 . The pound-keeper shall take charge of, feed and water
the cattle until they are disposed of as hereinafter directed.

Appoint-
ment of
pound-
keepers.

Ex officio
pound-
keepers in
Madras and
Bombay.

Suspension
or removal
of pound-
keepers.

Pound-
keepers may
hold other
offices.

Pound -
keepers to
be “public
servants. 1 ’

To keep
registers and
furnish
returns.

To register
seizures.

To take
charge of
and feed
cattle.

CHAPTER III.

Impounding Cattle.

10 . The cultivator or occupier of any land, Cattle

or any person who has advanced cash, for the cultivation of damaging
the crop or produce on any land, ,and -

1 Act XLV of I860.

2 For notification prescribing registers and returns in Burma, see

Burma Gazette, 1902, Pt. I, p. 794, 1

Police to aid
seizures.

Cattle
damaging
public roads,
canals and
embank-
ments.

Fines for
cattle

impounded.

iV THE INDIAN PENAL CODE

or the vendee or mortgagee of such crop of* produce, or
any part thereof,

may seize or cause to be seized any cattle trespassing on
such land, and doing damage thereto or to any crop or produce
thereon, and 1 2 3 4 * 6 7 8 [send them or cause them to be sent within
twenty-four hours] to the pound established for the village in
which the land is situate.

All officers of police shall, when required, aid in preventing
(a) resistance to such seizures, and ( b ) rescues from persons
making such seizures.

It is only when cattle are actually trespassing they can be seized
and impounded*.

Person in exclusive possession of a plot of land is an occupant within
the meaning of this section and is entitled to seize any cattle trespassing
on his land3.

Seizure by the lessee without any intention to take the cattle to a
pound for the purpose of coercing the owner of the cattle to pay arrears
of rent for framing is clearly illegal and amounts to an attempt of theft 4 .

The fact that there is Cattle-trespass Act to meet a particular offence
does not prevent the punishment of offenders under the Penal Code if an
offence punishable under the latter Code are committeds.

*11. Persons in charge of public roads, pleasure-grounds,
plantations, canals, drainage-works, embankments and the like,
and officers of police, may seize, or cause to be seized, any cattle
doing damage to such roads, grounds, plantations, canals,
drainage-works, embankments, and the like, or the sides or
slopes of such roads, canals, drainage-works, or embankments,
or found straying thereon,

and shall » [send them or cause them to be sent within
twenty-four hours] to the nearest pound.

S. 11 having been applied to forests by s. 69 of the Indian Forest
Act (VII of 1897) the seizure by a forest officer of cattle found straying in
a reserved forest is legal, even though no damage has actually been done.*

**12. For every head of cattle impounded as aforesaid,
the pound-keeper shall levy a fine in accordance with the scale
for the time being prescribed by the Local Government in this
behalf by notification in the official Gazette. Different scales
may be prescribed for different local areas.

1 These words in s. 10 were substituted for the words “ take them
or cause them to be taken without unnecessary delay M by the Cattle-
trespass Amendment Act, 1891 (I of 1891), s. 3.

2 In re Dasavia, 1 Weir 709.

3 Saudagar , 32 I. C. 666 (Punj.).

4 Wajuddin v. Rahitnuddin (1917) 18 Cr. L. J. 489 : 41 1. C. 817.

6 Oonaram, (1868) 9 W. R. (Cr.) 70.

6 As to the application of s. 11 to forests, see the Indian Forest Act,
1878 (7 of 1878), s. 69, 1 weir 709 ; the Burma Forest Act, 1902 (Bur.
Act IV of 1902), s. 49; the Assam forest Regulation, 1891 (VII of
1891), s. 66, E. B. & A. Code ; to Railways, see the Indian Railways Act,
1890 (IX of 1890), s. 125 (4).

7 These words in s. 11 were substituted for the words " take them
without unnecessary delay " by the Cattle-trespass Amendment Act, 1891
(I of 1891), s. 4.

8 Babaji Laxman , (1C97) 22 Bom. 939*

CATTLE-TRESPASS ACT V

All fine*’ so levied shall be sent to the Magistrate of the
District thrqugh such officer as the Local Government ma y
direct. *

A list of the fines and of the rates of charge for feeding and
watering cattle shall be posted in a conspicuous place on or
near to every pound.'' 1

CHAPTER IV.

Delivery of Sale of Cattle.

13. If the owner of the impounded cattle or his agent
appear and claim the cattle, the pound-keeper shall deliver
them to him on payment of the fines and charges incurred in
respect of such cattle.

The owner or his agent, on taking back the cattle, shall
sign a receipt for them in the register kept by the pound-keeper.

14. If the cattle be not claimed within seven days from
the date of their being impounded, the pound-keeper shall report
the fact to the officer in charge of the nearest police-station,
or to such other officer as the Magistrate of the District appoints
in this behalf.

Such officer shall thereupon stick up in a conspicuous part
of his office a notice stating —

(a) the number and description of the cattle,

(b) the place where they were seized,

(c) the place where they are impounded,

and shall cause proclamation of the same to be made by
beat of drum in the village and a^ the market-place nearest to
the place of seizure.

If the cattle be not claimed within seven days from the
date of the notice, they shall be sold by public auction by the
said officer, or an officer of his establishment deputed for that
purpose, at such place and time and subject to such conditions
as the Magistrate of the District by general or special order from
time to time directs :

Provided that, if any such cattle are, in the opinion of the
Magistrate of the District, not likely to fetch a fair price if sold
as aforesaid, they may be disposed of in such mannef as he
thinks fit.

15. If the owner or his agent appear and refuse to pay
the said fines and expenses, on the ground that the seizure was
illegal, and that the owner is about to make a complaint under
section 20, then upon deposit of the fines and charges incurred
in respect of the cattle, the cattle shall be delivered to him.

1 • Thi9 section has been substituted for section 12, Act I of 1871
by s. 2 of Act No. XVII of 1921. *

Procedure
when owner
claims the
cattle and
pays fines
and charges.

Procedure
if cattle be
not claimed
within a
week.

Delivery to

owner

disputing

legality of

seizure, but

making

deposit.

VI

THE INDIAN PENAt CODE

Procedure
when
owner re-
fuses or
omits to
I>ay the
lines and
expenses.

Deduction
of fines and
expenses.

Delivery of
unsold cat-
tle and
balance of
proceeds.

Receipt.

Disposal of
fines, ex-
penses and
surplus
proceeds of
sale.

Application
of fines and
unclaimed
proceeds of
sales.

Officers and
pound -
keepers not
to purchase
cattle at
sales under
this Act.

16 . If the owner or his agent appear and refuse or omit
pay or (in the case mentioned in section 15) to deposit the said

nes and expenses, the cattle, or as many of them as may be
necessary, shall be sold by public auction by such officer, at
such place and time and subject to such conditions, as are
referred to in section 14.

The fines leviable and the expenses of feeding and watering
together with the expenses of sale, if any, shall be deducted
from the proceeds of the sale.

The remaining cattle and the balance of the purchase-
money, if any, shall be delivered to the owner or his agent,
together with an account showing —

(a) the number of cattle seized,

(b) the time during which they have been impounded,

(c) the amount of fines and charges incurred,

(<f) the number of cattle sold,

( e ) the proceeds of sale, and

(f) the manner in which those proceeds have been disposed

of.

The owner or his agent shall give a receipt for the cattle
delivered to him and for the balance of the purchase-money
(if any) paid to him according to such account.

17 . The officer by whom the sale was made shall send
to the Magistrate of the District the fines so deducted.

The charges for feeding and watering deducted under
section 16 shall be paid over to the pound-keeper, who shall
also retain and appropriate all sums received by him on account
of such charges under section 13.

The surplus unclaimed proceeds of the sale of cattle shall
be sent to the Magistrate of the District, who shall hold them
in deposit for three months, and if no claim thereto be preferred
and established within that period shall, at its expiry, dispose
of them as hereinafter provided.

18 . Out of the sums received on account of fines and the
unclaimed proceeds of the sale of cattle shall be paid —

(а) the salaries allowed to pound-keepers under the orders

of the Local Government ;

(б) the expenses incurred for the construction and main-

tenance of pounds, or for any other purpose con-
s' nected with the execution of this Act ;

and the 1 surplus (if any) shall be applied, under orders
of the Local Government, to the construction and repair of roads
and bridges and to other purposes of public utility.

19 . No officer of police, or other officer or pound-keeper
appointed under the provisions herein contained, shall, directly
or indirectly, purchase any cattle at a sale under this Act.

1 As to the crediting ofthis surplul to local funds, see s. 31, infra.

CATTLE-TRESPASS ACT

vii

No pound-keeper shall release or deliver any impounded
cattle otherwise than in accordance with the former part of this
Chapter, unless such release or delivery is ordered by a Magis-
trate or civil Court.

Where a Sub-Inspector of police was charged with having purchased
a land which had been impounded, it was held that the Magistrate should
have proceeded under S. 19 Act I of 1871 taken in s. 169 1. P. C.i

CHAPTER V. 1 2 3

Complaints op Illegal Seizure or Detention.

20. Any person whose cattle have been seized under this
Act, or, having been so seized, have been detained in contraven-
tion of this Act, may, at any time within ten days from the
date of the seizure, make a complaint to the Magistrate of the
District or any Magistrate authorized to receive and try charges
without reference by the Magistrate of the District.

The illegal seizure or detention ofcattle referred to in s. 20 of the Cattle-
trespass Act is an offence under S. 4 (o), Cr. P. C. and is # by virtue of the
last clause of Sch. II thereof, under S. 20 of the Cattle-trespass Act, a
complaint of such illegel seizure or detention must be entertained by a
District Magistrate. 3

21. The complaint shall be made by the complainant
in person, or by an agent personally acquainted with the cir-
cumstances. It may be either in writing or verbal. If it be
verbal, the substance of it shall be taken down in writing by
the Magistrate.

If the Magistrate, on examining the complainant or his
agent, sees reason to believe the complaint to be well founded,
he shall summon the person complained against, and make
an enquiry into the case.

22. If the seizure or detention be adjudged illegal, the
Magistrate shall award to the complainant, for the loss caused
by the seizure or detention, reasonable compensation, not ex-
ceeding one hundred rupees, to be paid by the persons who
made the seizure or detained the cattle, together with all fines
paid and expenses incurred by the complainant in procuring
the release of the cattle;

and, if the cattle have not been released, the Magistrate
shall, besides awarding such compensation, order theif release,
and direct that the fines and expenses leviable under this Act
shall be paid by the person who made the seizure or detained
the cattle.

1 Rajkristo Biswas, (187>) 16 W. R. (Cr.) 62.

2 This Chapter was substituted by the Cattle-trespass Amendment
Act, 1891 (I of 1891), s. 6.

3 Budkan Muhto v. Isur Sing, 34 C. 926, where Shama v. Lechu

Sheikh , (1895) 23 C. 300 ; Raghu Sing v. Abdul Wahib, (1896) 23 C. 442
dedased obsolete. *

Pound-
keepers
when not
to release
impounded
cattle.

Power to
make

complaints.

Procedure
on com-
plaint.

Compensa-
tion for
illegal
seizure or
detention.

Kelcasc of
cattle.

THE INDIAN PBNAt CODE

viii

Appeal lies against order made under S. 22 of the Cattle-trespass Act.i
No appeal lies from an order under this section awarding compensa-
tion for illegal seizure of cattle. 2

Where a Magistrate found that cattle had done no damage to muni-
cipal trees and that the seizure of the cattle by (accused) municipal servants
was illegal, held , the accused was rightly convicted under this section. 3

Recovery 23. The compensation, fines and expenses mentioned in

section 22 may be recovered as if they were fines imposed by

peniation. ^ Magktrate

Penalty for
forcibly
opposing
the seizure
of cattle or
rescuing
the same.

Recovery
of penalty
for mischief
committed
by causing
cattle to
trespass.

Penalty for
damage
caused to
land or
crops or
public roads
by pigs.

CHAPTER VI.

Penalties.

24. Whoever forcibly opposes the seizure of cattle liable
to be seized under this Act,

and whoever rescues the same after seizure, either from a
pound or from any person taking or about to take them to a
pound, such person being near at hand and acting under the
powers conferred by this Act,

shall, on conviction before a Magistrate, be punished with
imprisonment for a period not exceeding six months, or with fine
not exceeding live hundred rupees, or with both.

The fact that the owners of the cattle claim to be owners of the
land as well docs not affect his right and if they resist the removal of the
cattle they make themselves liable to conviction under this section .4

No conviction can be had under this section unless it is proved
that the cattle rescued was lawfully seized within the meaning of the
provision of this Act. 5

Omission to record finding as to whether locality was public property —
conviction was set aside and the case was remanded. 6

7 25. Any fine imposed « [under the next following section
or] for the offence of mischief by causing cattle to trespass on
any land may be recovered by sale of all or any of the cattle
by which the trespass was committed, whether they were seized
in the act of trespassing or not, and whether they are the pro-
perty of the person convicted of the offence, or were only in his
charge when the trespass was committed.

26. Any owner or keeper of pigs who, through neglect or
otherwise, damages or causes or permits to be damaged any
land, or any crop or produce of land, or any 1 2 3 4 5 6 7 8 9 public road,
by allowing such pigs to trespass thereon, shall, on conviction
before a Magistrate, be punished with fine not exceeding ten
rupees.

1 Ip the matter of Pumas ami, (1901) 29 M. 517.

2 Dhiku , (1887) 15 C. 712.

3 Sotala, (1917) 16 A. L. J. 148.

4 Saudagar , J. 32 I. C. 055, following Sheikh Tanoo v. Kareem Buksh ,
23 W. R. Cr. 2.

5 Manick Chandra Roy v. Ismail, (1918) 23 C. W. N. 387.

6 Lakshmanna, (1900) 24 M~. 318. 9

7 As to the application of s. 25 in the case of cattle-trespassing on a
railway, see the Indian Railway Act, 1890 (IX of 1890), s. 125 (3).

8 These words in s. 25 were inserted by the Cattle- trespass Amend-
ment Act 1891 (I of 1891), s. 7.

9 " Public road " in s. 20 includes a railway — see the Indian Railways

Act, 1890 (IX of 1890), s. Ig5 (4). *

cattle-trespass act

ix

1 [The Local Government, by, notification in the official
Gazette, may from time to time, with respect to any local
area - specified in the notification, direct that the foregoing
portion of this section shall be read as if it had reference to
cattle generally, or to cattle of a kind 1 described in the noti-
fication, instead of to pigs only, or as if the words “ fifty rupees ”
were substituted for the words “ ten rupees, or as if there
were both such reference and such substitution 1 ’].

2 [The Local Government may at any time, by notification

in the official Gazette, cancel, or vary a notification under this
section]. J 1

27. Any pound-keeper releasing or purchasing or deli- Penalty on
vering cattle contrary to the provisions of section 19 or omitting pound-

to provide any impounded cattle with sufficient food and water, t0

or failing to perform any of the other duties imposed upon him perform
by this Act, shall, over and above any other penalty to which he duties,
may be liable, be punished, on conviction before a Magistrate,
with fine not exceeding fifty rupees.

Such fines may be recovered by deductions from the pound-
keeper's salary.

28. All fines recovered under section 25 , section 26 or Application

section 27 may be appropriated in whole or in part as com- ° eC overecl
pensation for loss or damage proved to the satisfaction of the under sec-
convicting Magistrate. tion 25, 26,

or 27.

CHAPTER VII.

Suits for Compensation.

29. Nothing herein contained prohibits any person whose
crops or other produce of land have been damaged by trespass

of cattle from suing for compensation in any competent Court.

•

30. Any compensation paid to such person under this
Act by order of the convicting Magistrate shall be set off and
deducted from any sum claimed by or awarded to him as
compensation in such suit.

1 For notification —

(1) as to elephants and buffaloes issued by the Chief Commissioner,

Assam, see Assam R. M., Ed. 1893, p. 25 ;

(2) as to Bombay, see second footnote on p. 8, supra. The notifica-

tions there referred to were also issued under the power
conferred by this section ; *

(3) as to certain areas in the Central Provinces, see C. P. R. and

O ;

(4) as to certain areas in the Presidency of Madras, see Mad. R.

and O. ;

(5) as to certain areas in the Province of Agra, see the U. P. R.

and O. ; and as tp substitution of Rs. 50 for Rs. 10, see U. P.

Gazette, 1909, Pt. I, p. 651 ;

(6) as to Bengal, see Calcutta Gazette, 1898, Pt. I, p. 898;

(7) as to Cantonment of Nasirabad (Ajmer-Merwara), see Gazette *

of India, 1898, # Pt. II, p. 935, Aj. R. and O.

2 This paragraph was fjdded to s. 26* by the Cattle-trespass
Amendment Act 1891 (I of 1891), $. 8, »

Saving of
right to sue
for com-
pensation.

Set-off.

X

THE INDIAN PENAL CODS

Power for
Local

Government
to transfer
certain
f unctions
to local
authority
and direct
credit of
surplus
receipts to
local funds.

CHAPTER VIII. 1 2 3

a

Supplemental.

31. The Local Government may, from time to time, by
notification in the oflicial Gazette, —

(a) transfer to any local authority within any part of the
territories under its administration in which this
Act is in operation, all or any of the functions of
the Local Government or the Magistrate of the
District under this Act, within the local area subject
* to the jurisdiction of the local authority, a or

(A) direct that the whole or any part of the surplus
accruing in any district under section 18 of this
Act shall be placed to the credit of such local fund
or funds as may be formed for any local area or
local areas comprised in that 3 district,
and may, from time to time, by notification in the official
Gazette, cancel or vary any notification under this section.

SCHEDULE.

See section 2.

Number and year.

Title of Act.

Ill of 1857 . .

An Act relating to trespasses by cattle.

V of 1860

An Act to amend Act III of 1857 (relating
to trespasses by cattle).

XXII of 1861

An Act to amend Act III of 1857 (relating
to trespasses by cattle).

1 Ch. VIII was added by th*e Cattle* trespass Act Amendment Act,
1891 (1 of 1891), s. 9.

2 For notifications under this clause issued by the —

(а) Government of Bombay, see Bom. R. and O. ;

(б) Government of Burma, see Burma Gazette, 1896, Pt. I, pp. 195

and 500 ;

(c) Chief Commissioner, Central Provinces, see C. P. R, and O. ;

(d) Government of Madras, see Mad. R. and O. ;

(e) Government of the Punjab, see Punjab Gazette, 1902, Pt.

I,p. 418.

(/) Chief Commissioner, North-West Frontier Province, see Gazette
of India, 1902, Pt. II, p. 1333;

(g) c Chief Commissioner, AJmer-Merwara, see Gazette of India, 1907,
Pt. II, p. 744.

3 For notifications issued under clause (6) by the —

(a) Government of Bombay for certain local areas, see Bom* R.
and O.;

lb) Government of Burma, see Burma Gazette, 1894, Pt. I, p. 13,
and ibid , 1896, Pt. I, p. 501 ; •

(c) Government of Bengal, tor such portions of Calcutta as defined
in the Calcutta Municipal Act, 1899, which are not included
in the Presidency-town, see Calcutta Gazette, 1901, Pt. I-B,
dated 6th February, 1901. •

(<f) Chief Commissioner, North- We£t Frontier Province, see Gazette
of India, 1904, Pt? II, p. 1172.

The Child Marriage Restraint Act.

(ACT No. XIX OF 1929)

(Received the assent of the Governor General on tht ist
October, 1929.)

An Aot to restrain the solemnisation of child marriages.

VX7HEREAS it is expedient to restrain the solemnisation of
* * child marriages ; It is hereby enacted as follows : —

1. (1) This Act may be called the Child Marriage Restraint
Act, 1 (1929).

(2) It extends to the whole of British India, including
British Baluchistan and the Sonthal Parganas.

(3) It shall come into force on the ist day of April, 1930.

2 . In this Act, unless there is anything repugnant in the
subject or context, —

(a) “child” means a person who, if a male, is under

eighteen years of age, and if a female, is under

fourteen years of age ;

(b) “ child marriage " means a marriage to which either

of the contracting parties is a child ;

(c) “contracting party” to a marriage means either of

the parties whose marriage is thereby solemnised ;

and

(d) “ minor ” means a person of either sex who is under

eighteen years of age. 4 ~.

3 . Whoever, being a male above eighteen years of age and
below twenty-one, contracts a child marriage shall be punishable
with fine which may extend to one thousand rupees. *

4 . Whoever, being a male above twenty-one years of age,
contracts a child marriage shall be punishable with sim ple
imprisonment which max extend to one month, or with fine
which may extend to one thousand rupees, or with both.

I. These figures were substituted for '' 1028 ’’ by section 2 and Sch. I
of the Repealing and Amending Act, 1930^(VIII of 1930).

Short title
extent and
commence-
ment.

Definitions.

Punishment
for male
adult below
twenty-one
years of age
marrying a
child.

Punishment
for male
adult above
twenty-one
years of age
marrying a
child. *

THE INDIAN PENAL CODE

Punishment
for solemnis-
ing a child
marriage.

Punishment
for parent
or guardian
concerned in
a child
marriage.

Imprison-
ment not to
be awarded
for offences
under sec-
tion 3.

Jurisdiction
under this
Act.

Mode of tak-
ing cogni-
zance of
offences.

Preliminary
inquiries
into offences
under this
Act.

Xll

5 . Whoever performs, conducts or directs any child mar-
riage shall be punishable with simple imprisonment which
may extend to one month, or with fine which may extend to
one thousand rupees, or with both, unless he proves that he
had reason to believe that the marriage was not a child marriage.

6 . (i ) Where a minor contracts a child marriage, any person
having charge of the minor, whether as parent or guardian
or in any other capacity, lawful or unlawful, who does any act
to promote the marriage or permits it to be solemnised, or
negligently fails to prevent it from being solemnised, shall be
punishable with simple imprisonment which may extend to
one month, or with fine which may extend to one thousand rupees,
or with both :

Provided that no woman shall be punishable with
imprisonment.

(2) For the purposes of this section, it shall be presumed,
unless and until the contrary is proved, that where a minor
has contracted a child marriage, the person having charge
of such minor has negligently failed to prevent the marriage
from being solemnised.

7 . Notwithstanding anything contained in section 25 of
the General Clauses Act, 1897, or section 64 of the Indian
Penal Code, a Court sentencing an offender under section 3
shall not be competent to direct that, in default of payment of
the fine imposed, he shall undergo any term of imprisonment.

8. Notwithstanding anything contained in section 190 of
the Code of Criminal Procedure, 1898, no Court other than
that of a Presidency Magistrate or a District Magistrate shall
take cognizance of, or try, a&y offence under this Act.

9. No Court shall take cognizance of any offence under
this Act save uppn complaint made within one year of the
solemnisation of the marriage in respect of which the offence
is alleged to have been committed.

10 . The Court taking cognizance of an offence under this
Act shall, unless it dismisses the complaint under section 203
of the Code of Criminal Procedure, 1898, either itself make
an inquiry under section 202 of that Code, or direct a Magis-
trate of the first class subordinate to it to make such inquiry.

A Court taking cognizance of an offence under this Act
is bound to hold a preliminary inquiry before directing the issue of process
for* the attendance of the accused and the omission to comply with the
mandatory provision of the Act is an irregularity .1

1. Mangal v. Kaln, 31 P i L; R. 940V32 Cr. L. J. 61« : 130 I. C 783.

CHILD MARRIAGE RESTRAINT ACT Xiii

11 . (i) At any time after examining the complainant and
before issuing process for compelling the attendance of the
accused, the Court shall, except for reasons to be recorded in
writing, require the complainant to execute a bond, with or
without sureties, for a sum not exceeding one hundred rupees,
as security for the payment of any compensation which the
complainant may be directed to pay under section 250 of the
Code of Criminal Procedure, 1898 ; and if such security is not
furnished within such reasonable time as the Court may fix,
the complaint shall be dismissed.

(2) A bond taken under this section shall be deemed to be
a bond taken under the Code of Criminal Procedure, 1898,
and Chapter XLII of that Code shall apply accordingly.

The permission contained in Sec. 11 (1) is imperative and
where the magistrate has not recorded any reason why the complainant
was not required to execute a bond, held, a material irregularity is
committed, which cannot be cured by Sec. 537, Cr. P. Code.*

1. Kaluram Daga , (1933) 37 C. W. N. 61(5 : 34 Cr. L. J. 564
143 I. C. 279 (Cal) : A. I. R. (1933) Cal. 433 (1).

Power to
take security
from com-
plainant.

V of 1898.

V of 1898.

Contempt of Courts Act.

ACT No. XII of 1926.

Short title,
extent and
commence-
ment.

Power of
superior
Courts to
punish
contempts
of Court.

Received the assent of the Governor General on the 8th
March, 1926.)

An Act to define and limit the powers of certain Courts in
punishing contempts of Courts.

7 HERE AS doubts have arisen as to the powers of aHigh
W court of Judicature to punish contempts of subordinate

Courts ;

And whereas it is expedient to resolve these doubts and
to define and limit the powers exerciseable

Chief Courts in punishing contempts of Court , It is hereby
enacted as follows : —

1 . (1) This Act may be called the Contempt of Courts
Act, 1926.

(2) It shall extend to the whole of British India.

to) jt shall come into force on such date as the Governor
General in Council may, by notification m the Gazette of
India, appoint. •

1 Subiect to the provisions of sub-section (3), the
High Courts of Judicature established by Letters Patent shall
have and exercise the same jurisdiction, powers and authority
in accordance with the same procedure and practice, in respect
of contempts of Courts subordinate to them as they have and
exercise in respect of contempts of themselves.

(2) Subiect to the provisions of sub-section (3), a Chief
Court shall have and exercise the same jurisdiction, power
and authority in accordance with the same procedure and
practice! in respect of contempt of itself as a High Court refemd
to in sub-section (ij.

to) No High Court shall take cognizance of a contempt
alleged to have been committed in respect of a Court sub-
ordinate to it where such contempt* is an offence punishable
under the Indian Penal Code.

„a .

CONTEMPT OF COURT ACT

XV

All such comment, constituting as it docs a preliminary trial by
newspaper, is an affront to the dignity of the Court and merits punish-
ment as such independently of any possibility of the minds of the Judges
being influenced. Held , further, it is no answer to an application for
process for contempt that at the date the Court was moved, the
proceedings has terminated. But where theie has been long delay and
no unavoidable cause is proved, the belated application will not be
entertained.!

S. 2. (1)— Proceedings in contempt . How can be dealt with—
Right of condition : —

An application in contempt made to the High Court, for the con-
tempt of itself and of a subordinate court, need not necessarily be
dealt with by the court on the Crown side and in such a case it is not
necessary that a party, if represented must appear through an Advocate
represented by an attorney. 2

Comment in a newspaper (Statesman) upon a pending case
(Chittagong Armoury Raid Case), which has any tendency to interfere
with the due course of justice, or to prejudice mankind against persons
who are on their trial, is technically a contempt of Court. As the High
Court had the contempt to be theoretical and slight it was not thought
necessary that the High Court should interfere.3

It was held in Matilal Ghosh's case (41 C. 173) that the Calcutta
High Court has no jurisdiction to commit on a summary proceeding
for contempt of a Mufusil criminal Court.

This view is no longer good law on this point .

3. Save as otherwise expressly provided by any law for
the time being in force, a contempt of Court may be punished
with simple imprisonment for a term which may extend to six
months, or with fine, which may extend to two thousand rupees,
or with both :

Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being made
to the satisfaction of the Court.

1 In the matter of His Excellency the Goveraor of Bengal v. Tushar
Kanti Ghosh (or the Amrita Bazar Patrika Contempt Case) 37 C. W. N.
276 .

2 Supdt. of Remembrancer of Legal Affairs v. Khagendra Nath Dass
Gupta , (1930) 58. C. 458, following Matilal Ghose, 41 C. 173.

3' Ananta Lai Sing v. Alfred Henry Watson , (1930) 58 C. 488 : 35
C. W. N. 186, see also King Emp. v. Maung Tin Saw, (1927) 6 Rang. 39.

Limit of
punishment
for contempt
of Court.

THE CRIMINAL TRIBES ACT.

Short title
and extent.

Definitions.

Power to
declare any
tribe, gang,
or class a
criminal
tribe.

ACT VI of 1924.

Received the assent of the Governor General on the 13th
March, 1924.

An Act to consolidate the law relating to Criminal Tribes.

\\ 7HEREAS it is expedient to consolidate the law relating to
* V criminal tribes ; It is hereby enacted as follows : —

Preliminary.

1 . (1) This Act may be called the Criminal Tribes Act, 1924.

(2) It extends to the whole of British India.

2 . In this Act, unless there is anything repugnant in the
subject or context, —

(1) “ district ” includes a Presidency-town and the town of
Rangoon ;

(2) “ District Magistrate " means, in the case of a Presi-
dency-town or the town of Rangoon, the Commissioner of
Police ;

(3) “ prescribed ” means prescribed by rules made under
this Act; and

(4) “ Superintendent of Police ” means, in the case of a
Presidency-town or the town of Rangoon, any officer appointed
by the Local Government to perform the duties of a Superin-
tendent of Police under this Act.

«•

Notification of Criminal Tribes.

3 . If the Local Government has reason to believe that
any tribe, gang or class of persons, or any part of a tribe, gang
or class, is addicted to the systematic commission of non-bailable
offences, it may, by notification in the local official Gazette,
declare that such tribe, gang or class' or, as the case may be,
that such part of the tribe, gang;' or. class is a criminal tribe
for the purposes of this Act,

CRIMINAL TRIBES ACT XVii

Registration of Members of Criminal Tribes.

4. The Local Government may direct the District Magis-
trate to make or to cause to be made a register of the members
of any criminal tribe, or part of a criminal tribe, within his
district.

5. Upon receiving such direction, the District Magistrate
shall publish notice in the prescribed manner at the place where
the register is to be made and at such other places as he may
think fit, calling upon all the members of the criminal tribe
or part, as the case may be, —

(a) to appear at a time and place therein specified before
a person appointed by him in this behalf ;

( b ) to give to that person such information as may be

necessary to enable him to make the register ; and

(c) to allow their finger-impressions to be recorded :

Provided that the District Magistrate may exempt any
member from registration and may cancel any such exemption.

6 . The register, when made, shall be placed in the keeping
of the Superintendent of Police, who shall, from time to time,
report to the District Magistrate any alterations which ought
in his opinion to be made therein, either by way of addition or
erasure.

7. (i) After the register has been placed in the keeping
of the Superintendent of Police, no person’s name shall be
added to the register, and so registration shall be cancelled,
except by, or under an order in writing of, the District Magis-
trate.

( 2 ) Before the name of any person is added to the register
under this section, the Magistrate shall give notice in the pre-
scribed manner to the person concerned —

*

(«) to appear before him or an authority appointed by
him in this behalf at a time and place therein
specified ;

(6) to give to him or such authority such information as
may be necessary to enable the entry to be made ;
and

(c) to allow his finger-impressions to be recorded.

8 . Any person deeming himself aggrieved by any entry
made, or proposed to be made, in such register, either when the
register is first made or subsequently, may complain to the
District Magistrate against such entry, and the Magistrate shall
retain such person's name on the register, or enter it therein
or erase it therefrom, as h« may think fit. \ •

9. The District Magistrate or any officer empowered by
him in this behalf may at^nyjtime order the finger-impressions
of aqjr registered member of>a criminal tribe to be taken,

.74

Registra-
tion of
members of
criminal
tribes.

Procedure
in making
register.

Charge of
register.

Alterations
in register.

Complaints
of entries
in register.

Power to
take finger-
impressions
at any time,

XViii THE INDIAN PENAL CODE

Members of

criminal

tribes to

report

themselves

or notify

residence.

10 . (r) The Local Government may, by notification in the
local official Gazette, issue in respect of any criminal tribe
either or both of the following directions, namely, that every
registered member thereof shall, in the prescribed manner,

(a) report himself at fixed intervals ;

(b) notify his place of residence and any change or

intended change of residence, and any absence
or intended absence from his residence.

" (2) Where a registered member of a criminal tribe in
respect of which the Local Government has issued a notification
under sub-section (1) changes his place of residence to a District
other than that in which he has been registered (whether in
the same province or not), or is for the time being in a district
of a province other than that by the Local Government of
which the said notification was issued, the provisions of this
Act and of the rules made thereunder shall apply to him as
if in pursuance of a direction made under section 4 he had
been registered in that district ; and where that district is in
a province other than that by the Local Government of which
the notifications under section 3 and sub-section (1) of this
section were issued in respect of such criminal tribe, as if the
said notifications had been issued by the Local Government
of such other province.

(3) Where any such registered member changes his place
of residence to a district other than that in which he has been
registered (whether in the same province or not), the relevant
entry in the register shall be transferred to the Superintendent
of Police of that district.”*

Power to
restrict
movements
of, or set-
tle, crimi-
nal tribes.

Restriction 0 f Movements of Criminal Tribes.

11. (1) If the Local Government considers that it is
expedient that any criminal tribe, or any part or member of a
criminal tribe, should be —

(«) restricted in its or, his movements to any specified
area, or

( 4 ) settled in any place of residence, the Local Government
may, by notification in the local official Gazette,
declare that such criminal tribe, part or member,
as the case may be, shall be restricted in its or his
movements to the area specified in the notifica-
tion, or shall be settled in the place of residence
so specified, as the case may be.

(2} Before making any such declaration, the Local Govern-
ment shall consider the following matters, namely : —

(*) the nature and the circumstances of the offences in
which the members of the criminal tribe or part
or the individual member as the case may be, are
ok is believed to have beent concerned ;

(**) whether the criminal tribe, part or member follows
Any lawful occupation, apd whether such occupation

1 Added by s. 2 of the Criminal bribes (Amendment) Act XXXIII

CRIMINAL TRIBES ACT XIX

is a real occupation or merely a pretence for the
purpose of facilitating the commission of crimes ;

(Hi) the suitability of the restriction area, or of the place
of residence, as the case may be, which it is proposed
to specify in the notification ; and

(iv) the manner in which it is proposed that the persons
to be restricted or settled shall earn their living
within the restriction area or in the place of resi-
dence, and the adequacy of the arrangements
which are proposed therefor.

12 . The Local Government may by a like notification
vary the terms of any notification issued by it under section n
for the purpose of specifying another restriction area or another
place of residence, as the case may be, and any officer em-
powered in this behalf by the Local Government may, by
order in writing, vary any notification made under section n
or under this section for the purpose of specifying another re-
striction area, or, as the case may be, another place of residence,
in the same district.

13 . Any notification made by the Local Government
under section n or section 12 may specify, as the restriction
area or as the place of residence, an area or place situated in any
other province, provided that the consent of the Local Govern-
ment of that province shall first have been obtained.

14 . Every registered member of a criminal tribe, whose
movements have been restricted or who has been settled in a
place of residence in pursuance of any notification under
section 11 or section 12, shall attend at such place and at such
time and before such person as may be prescribed in this behalf.

15 . (1) Where, in pursuance of any such notification,
any member of a criminal tribe is restricted in his movements
to an area, or is settled in a place of residence, situated in a
province other than that by the Local Government of which
the notification under section 3 relating to the criminal tribe
was issued, all the provisions of this Act and the rules .made
thereunder shall apply to him as if the notification under
section 3 had been issued by the Local Government of such
other province.

(2) If any. criminal tribej or any part of a criminal tribe,
which has been registered under section 4 in any district, or
any member of such tribe or part, is restricted in its or his move-
ments 40 an area, or is settled 'in a place of residence, situated

Power to
vary speci-
fied area
or place o i
residence.

Power of
Local
Govern-
ment to
restrict or
settle Cri-
minal Tribe
in another
province.

Verification
of presence
of members
of tribe
within pre-
scribed area
or place of
residence.

Application
of Act
when crimi-
nal tribe is
transferred
from one
province or
district to
another.

XX

THE INDIAN PENAL CODE

in another district (whether in the same province or not), the
register or, as the case may be, the relevant entries or entry
therein shall be transferred to the Superintendent of Police
of the last mentioned district, and all the provisions of this
Act and the rules made thereunder shall apply as if the criminal
tribe or part had been registered in that district, and the Dis-
trict Magistrate of that district shall have power to cancel any
exemption granted under section 5.

Power to
place tribe
in settle-
ment.

Power to
place child*
ren in
schools and
to appren-
tice them.

Power to
discharge
or transfer
persons
from set-
tlement or
school.

Settlements and Schools.

16 . The Local Government may establish industrial,
agricultural or reformatory settlements and may order to be
placed in any such settlement any criminal tribe, or any part
or member of a criminal tribe, in respect of which or of whom
a notification has been issued under section ix :

Provided that no such order shall be made unless the
necessity for making it has been established to the satisfaction
of the Local Government, after an inquiry held by such auth-
ority and in such manner as may be prescribed.

17 . (1) The Local Government may establish industrial,
agricultural or reformatory schools for children, and may order
to be separated and removed from their parents or guardians
and to be placed in any such school or schools the children of
members of any criminal tribe or part of a criminal tribe, in
respect of which a notification has been issued under section 11.

(2) For every school established under sub-section (1), a
Superintendent shall be appointed by the Local Government.

(3) The provisions of sections 18 to 22 of the Reformatory
Schools Act, 1897, 1 shall, so far as may be, apply in the case
of every school for children established under this section as
if the Superintendent of such school were a Superintendent
and the children placed in such school were youthful offenders
within the meaning of that Act.

(4) For the purposes of this section the term “ children ”
includes all persons under the age of eighteen and above the
age of six years.

(5) The decision of the District Magistrate as to the age of
any person for the purposes of this section shall be final.

It is competent to the Local Government to frame a rule to the effect
that a member of a registered Criminal Tribe shall not leave "or be
absent "from the village in which he resides.®

lb. The Local Government or any officer authorised by
it in this behalf may at any time, by general or special order,
direct any person who may be in any industrial, agricultural
or reformatory settlement or school in the province,—

(а) to be discharged, or t

(б) to be transferred to some other settlement or school

in the province.

1 Act VIII of 1897, %.

? Udai, (1908) 9 P. W, R. Cr, 90 ; 9 Cr, L. J. 1.

CRIMINAL TRIBES ACT

XXI

19 . Any order made under section 16, section 17 or section
18 may specify as the settlement or school in which any person
is to be placed or to which he is to be transferred, as the case
may be, any industrial, agricultural or reformatory settlement
or school in any other province, provided that the consent of
the Local Government of that province shall first have been
obtained.

Rules.

20 . (1) The Local Government may make rules to carry p 0 wcrto

out the purposes and objects of this Act. make rules.

(2) In particular and without prejudice to the generality
of the foregoing power, such rules may provide for or regulate —

(a) the form and contents of the register referred to in

section 4 ;

( b ) the manner in which the notice referred to in section 5

shall be published and the means by which the
persons whom it concerns, and the village-headmen,
village-watchmen, landowners and occupiers of
the village in which such persons reside, and
the agents of such landowners or occupiers, shall
be informed of its publication ;

(c) the addition of names to the register' and the erasure

of names therein, and the mode in which the
notice referred to in sub-section (2) of section 7
shall be given ;

(d) the manner in which persons mentioned in section 10

shall report themselves, or notify their residence or
any change or intended change of residence, or any
absence or intended absence ;

(e) the nature of the restrictions to be observed by persons

whose movements have been restricted by noti-
fications under sectional or section 12 ;

(/) the circumstances in which members of a criminal
tribe shall be required to possess and produce for
inspection certificates of identity, and the manner
in which such certificates shall be granted ;

(g) the conditions as to holding passes under which

persons may be permitted to leave the place in
which they are settled or confined, or the area to
which their movements are restricted ;

(h) the conditions to be inserted in any such pass in/egard

to —

(*) the places where the holder of the pass may go
or reside ;

(») the persons before whom, from time to time, he
■ • shall be botfnd to present himself ; and
(tit) the time during which he may absent himself ;

(1) the place and tiipe at which, and the persons before
«. whom, members ®f a criminal tribe shall attend
in accordance with the provisions of section 14 ;

Power to
direct use
of any set-
tlement or
school in
British
India for
reception of
persons.

THE INDIAN PENAL Ci)DE

xxii

(j) the authority by whom and the maimer in which the

injury referred to in section 16 shall be held ;

(k) the inspection of the residences and villages of any

criminal tribe ;

(/) the terms upon which registered members of criminal
tribes may be discharged from the operation of this
Act ;

(m) the management, control and supervision of indus-

trial, agricultural or reformatory settlements and
schools ;

(n) the works on which, and the hours during which,

persons placed in an industrial, agricultural or
reformatory settlement shall be employed, the
rate at which they shall be paid, and the disposal,
for the benefit of such persons, of the surplus
proceeds of their labour ; and

(o) the discipline to which persons endeavouring to escape

from any industrial, agricultural or reformatory
settlement or school, or otherwise offending against
the rules for the time being in force, shall be
subject, the periodical visitation of such settlement
or school and the removal from it of such person
as it shall seem expedient to remove.

Penalties and Procedure .

Penalties
for failure
to comply
with terms
of notice
under sec-
tion 5 or
section 7.

21 . Whoever, being a member of a criminal tribe, without
lawful excuse, the burden of proving which shall lie upon
him, —

(a) fails to appear in compliance with a notice issued

under section 5 or section 7, or

(b) intentionally omits to furnish any information re-

quired under either of those sections, or,

(c) when required to* furnish information under either

of those sections, furnishes as true any information
which he knows or has reason to believe to be
false, or

(d) refuses to allow his finger-impressions to be taken by

any person acting under an order passed under
section 9 may be arrested without warrant, and
shall be punishable with imprisonment for a term
which may extend to six months, or with fine
, which may extend to two hundred rupees, or with
both.

Penalties
for breach
of rules.

22. ( 1 ) Whoever, being a registered member of a criminal
tribe, contravenes a rule made under clause (e), clause (g) or
clause (h) of section 20 shall be punishable with imprisonment
for a term which may extend,—

(a) on a first conviction, to one year,

(b) on a second conviction, to two years, and

(c) on any subsequent conviction, to three years,

or with fine which may extend to five hundred rupees, or with
both.

criminal tribes act

xxiii

(2) Whoever, being a registered member of a criminal
tribe, contravenes any other rule made under section 20 shall
be punishable, —

(a) on a first conviction, with imprisonment for a term

which may extend to six months, or with fine
which may extend to two hundred rupees, or with
both ; and

( b ) on any subsequent conviction, with imprisonment

for a term which may extend to one year, or with
fine which may extend to five hundred rupees, or
with both.

(3) Any person who commits or is reasonably suspected
of having committed an offence made punishable by this sec-
tion which is not a cognizable offence as defined in the Code of
Criminal Procedure, 1898, may be arrested without a warrant
by any officer in charge of a police-station or by any police-
officer not below the rank of a sub-inspector.

23 . (1) Whoever, being a member of any criminal tribe
and having been convicted of any of the offences under the
Indian Penal Code specified in Schedule I, — is convicted of
the same or of any other such offence shall, in the absence of
special reasons to the contrary which shall be stated in the
judgment of the Court, be punished, —

(a) on a second conviction, with imprisonment for a term

of not less than seven years, and

(b) on a third or any subsequent conviction, with trans-

portation for life :

Provided that not more than one of any such convictions
which may have occurred before the first day of March, 1911,
shall be taken into account for the purposes of this sub-section.

(2) Nothing in this section shall affect the liability of
such person to any further or other punishment to which he
may be liable under the Indian Penal Code or any other law.

Cl. (b). — For a conviction under this section it is not necessary that
both the Record and the third conviction should be after the Tribe to
which the accused belongs had been declared a Criminal Tribe or after
the accused was registered as a member of a Criminal Tribes.3

24 . Whoever, being a registered member of any criminal
tribe, is found in any place under such circumstances as to
satisfy the Court, —

(«) that he was about to commit or aid in the commission
of theft or robbery, or ,

( b ) that he was waiting for an opportunity to commit
* theft or robbery,

shah lie puriishable with imprisonment for a term which may
extend to three years, and shall also be liable to fine which
may extend to one thousand rupees.

Enhanced
punishment
for certain
offences by
members of
criminal
tribe after
previous
conviction.

Punish*
ment for
registered
members of
criminal
tribe

found un*
der suspi-
cious cir-
cumstances.

1 .Act V of 1808 .

*8- Act XLV of 18(10. *

3 In rt Mayandi Thevan, (1026) SO M. 474.

xxiv

THE INDIAN PENAL CODE

Arrest of
registered
persons
found be-
yond pre-
scribed
limits.

Scope Where the evidence against accused was that he was found
near a pond, that he had a pair of scissors and box of matches, held, it
will not amount to an offence under cl. (b) 4.

25. (i) Whoever, being a registered member of a criminal
tribe, —

(a) is found in any part of British India, beyond the

area or place of residence, if any, to which his
movements have been restricted or in which he
has been settled without the prescribed pass, or
in a place or at a time not permitted by the con-
ditions of his pass, or

(b) escapes from an industrial, agricultural or reformatory

settlement or school,

may be arrested without warrant by any police-officer, village-
headman or village-watchman, and may be taken before a
headman or village-watchman, and may be taken before a
Magistrate, who, on proof of the facts, shall order him to be
removed to such area or place or to such settlement or school,
as the case may be, there to be dealt with in accordance with
this Act or any rules made thereunder.

Duties of
village-
headman,
village-
watchman
and owners
or occu-
piers of
land to
give infor-
mation in
certain
cases.

( 2 ) The rules for the time being in force for the removal
of prisoners shall apply to all persons removed under this section
or under any other provision of this Act :

Provided that an order from the Local Government or from
the Inspector-General of Prisons shall not be necessary for the
removal of such persons.

26. ( 1 ) Every village-headman and village-watchman in a
village in which any members of a criminal tribe reside, and
every owner or occupier of land on which any such persons
reside, and the agent of any such owner or occupier, shall
forthwith communicate to "the ’officer in charge of the nearest
police-station any information which may obtain of —

(a) the failure of any such person to appear and give

information when required to do so by a notice
issued under section 5 ; or

(b) the departure of any registered member of a criminal

tribe from such village or from such land, as the
case may be.

( 2 ) fiTvery village-headman and village-watchman in a
village, and every owner or occupier of land and the agent of
any such owner or occupier, shall forthwith communicate to the
officer in charge of the nearest police-station any information
which he may obtain of the arrival a( such village or on such
land, as the case may be, of any persons who may reasonably
be suspected of being members of any criminal tribe." *.

1 Konargiri Bitchalugahi, (1928) M, \V. l5f. 71 : 54. M. L. J. 312*

2 Act XLV of 1860. « , *

criminal tribes act

XXV

27 . Any village-headman, village-watchman, owner or
occupier of land, and the agent of any such owner or occupier,
who fails to comply with the requirements of section 26, shall
be deemed to have committed an offence punishable under the
first part of section 176 of the Indian Penal Code.*

28 . The Local Government, if it is satisfied that adequate
provision has been made by the law of any State in India for the
restriction of the movements or the settlement in a place of
residence of persons such as are referred to in section 3, and for
securing the welfare of persons so restricted or settled, may,
with the consent of the Prince or Chief of that State, direct the
removal to that State of any criminal tribe, or part of a criminal
tribe, for the time being in the province, and may authorise
the taking of all measures necessary to effect such removal :

Provided that no person shall be so removed if the Local
Government is satisfied that he is a subject of His Majesty.

Supplemental.

29 . No Court shall question the validity of any notifi-
cation issued under section 3, section 11, or section 12, on the
ground that the provisions hereinbefore contained or any of them
have not been complied with, or shall entertain in any form
whatever the question whether they have been complied with ;
but every such notification shall be conclusive proof that it has
been issued in accordance with law.

30 . The enactments mentioned in Schedule II are hereby
repealed to the extent specified in the fourth column thereof.

SCHEDULE I.

See section 23.

CHAPTER XII.

Sections. —

231. Counterfeiting coin. *

232. Counterfeiting Queen’s coin.

233. Making or selling instrument for counterfeiting coin.

234. Making or selling instrument for counterfeiting

Queen’s coin.

235. Possession of instrument or material for the purpose

of using the same for counterfeiting coin.

239. Delivery of coin, possessed with the knowledge that
it is counterfeit. *

24a ^Delivery of Queen's coin possessed with the knowledge
.. that it is counterfeit.

242. Possession of counterfeit coin by a person who knew

it to be counterfeit when ne became possessed

thereof.

243. Possession of Queen’s coin by a person who knew it
* - to be counterfeit when he became possessed thereof.

» ; '■ »

l Act XLV of 1860.

Penalty for
breach of
such duties.

Power to
deport cer-
tain crimi-
nal tribes
to states in
India.

Bar of
jurisdiction
of Courts in
questions
relating to
notifications
under sec-
tions 3 , 12
and 13 .

»

xxvi

THE INDIAN PENAL CODE

CHAPTER XVI.

Sections — :

299. Culpable homicide.

307. Attempt to murder.

308. Attempt to commit culpable homicide.

310. Being a thug.

322. Voluntarily causing grievous hurt.

324. Voluntarily causing hurt by dangerous weapons or
means.

326. Voluntarily causing grievous hurt by dangerous

weapons or means.

327. Voluntarily causing hurt to extort property or to con-

strain to an illegal act.

328. Causing hurt by means of poison, etc., with intent

to commit an offence.

329. Voluntarily causing grievous hurt to extort property

or to constrain to an illegal act.

332. Voluntarily causing hurt to deter public servant from

his duty.

333. Voluntarily causing grievous hurt to deter public

servant from his duty.

369. Kidnapping child under ten years with intent to steal
from its person.

CHAPTER XVII.

382. Theft after preparatiqn made for causing death, hurt

or restraint, in order to the committing of the theft.

383. Extortion.

385. Putting person in fear of injury in order to commit

extortion.

386. Extortion by putting a person in fear of death or

grievous hurt.

387. Putting person in fear of death or of grievous hurt

in order to commit extortion.

390. Robbery.

391. Dacoity. * *

393. Attempt to commit robbery.

394. Voluntarily causing hurt in committing robbery.

397. Robbery or dacoity, with attempt to cause death

or grievous hurt.

398. Attempt to commit robbery of dacoity when amied

with deadly weapon. *

CRIMINAL TRIBES ACT

XXVil

Sections —

399. Making preparation to commit dacoity.

402. Assembling for purpose of committing dacoity.

457. Lurking house-trespass or house-breaking by night in

order to the commission of an offence punishable
with imprisonment.

458. Lurking house- trespass or house-breaking by night

after preparation for hurt, assault or wrongful
restraint.

459. Grievous hurt caused whilst committing lurking house-

trespass or house-breaking.

460. All persons jointly concerned in lurking house-trespass

or house-breaking by night punishable where death
or grievous hurt caused by one of them.

SCHEDULE II

See section 30.

1

2 .

3

4

Year.

Number-

Short title.

Kxtent of repeal .

1911

III

The Criminal Tribes

Act, 1911.

So much of the Act as has
not been repealed.

1914

X

The Repealing and
Amending Act, 1914.

So much of Schedule II as
relates to the Criminal
Tribes Act, 1911.

1915

j

XI

The Repealing and
Amending Act,

1915.

So much of Schedule I as
relates to the Criminal
Tribes Act, 1911.

1920

XXXVIII

The Devolution Act,
1920.

So much of Schedule l as
relates to the Criminal
Tribes Act, 1911.

1923

I

The Criminal Tribes
(Amendment) Act,

The whole Act.

1

1923.

0 . , ,

Short title
and extent.

Amend*
ment of the
Indian
Penal Code.

THE

ELECTION OFFENCES AND
INQUIRIES ACT.

(ACT XXXIX of 1920.)

Passed by the Indian Legislative Council.

Received the assent of the Governor General on the 14th September,

1920.

An Act to provide for the punishment of malpractices in connection
with elections, and to make further provision for the conduct
of inquiries in regard to disputed elections to legislative
bodies constituted under the Government of India Act.

\X 7 HEREAS it is expedient to provide for the punishment of
* * malpractices in connection with elections, and to make
further provision for the conduct of inquiries in regard to
disputed elections to legislative bodies constituted under the
Government of India Act ; It is hereby enacted as follows : —

Preliminary.

1. (1) This Act maybe called the Indian Election Offences
and Inquiries Act, 1920; and

(2) It extends to the whole of British India.

PART I.

Amendment of the Indian Penal Code and Code of
Criminal Procedure.

1. (1) 'In section 21 of the Indian Penal Code, after the
tenth entry, the following shall be inserted, namely "Eleventh : —
Every person who holds any office in virtue of wljich he is
empowered to prepare, publish, maintain or revise an electoral
roll or to conduct an election or part of an election” ; and
after Explanation 2, the following shall be added, namely : —

“ Explanation 3. — The word ‘ election ’ denotes an election
for the purpose of selecting members qf ahy legislative, munici-
pal or other public authority*, of whatever character, the method

INDIAN ELECTION OFFENCES AND INQUIRIES xxix

of selection to which is by, or under, any law prescribed as by
election."

(2) After Chapter IX of the same Code th% following
Chapter shall be inserted, namely : —

"CHAPTER IX-A.

Of offences relating to elections.

[ See s. 171-A to s. 171-I printed in the Penal Code at
pp. 287-294.]

PART II.

Election Inquiries and other matters.

4 . In this Part, unless there is anything repugnant in
the subject or context, —

(a) " costs ” means all costs, charges and expenses of,
or incidental to, an inquiry ;

(b) “ election " means an election to either Chamber of
the Indian Legislature or to a Legislative Council constituted
under the Government of India Act ;

(c) “ inquiry ” means an inquiry in respect of an election
by Commissioners appointed for that purpose by the Governor
General, Governor or Lieutenant-Governor ;

(d) “ pleader " means any person entitled to appear and
plead for another in a civil Court, and includes an advocate,
a vakil, and an attorney of a High Court.

5 . Commissioners appointed toehold an inquiry shall
have the powers which are vested in a Court under the Code
of Civil Procedure, 1908, when trying a suit in respect of the
following matters : —

(a) discovery and inspection,

(1 b ) enforcing the attendance of witnesses, and requiring
the deposit of their expenses,

(c) compelling the production of documents,

(d) examining witnesses on oath,

(e) granting adjournments,

(/) reception of evidence taken on affidavit, and

(g) issuing commissions for the examination of witnesses,

and may summon and examine suo motu any person whose
evidence appears to them to be material ; and shall be deemed
to be a civil Court within, the meaning of sections 48O and 482
of the Code of Criminal Procedure, if 0

Definitions.

Powers of
Commis-
sioners.

Application
of Act I of
1872 to in-
quiries.

Documen-
tary evi-
dence.

Obligation
of witness
to answer
any certifi-
cate of
indemnity.

Appearance
by pleader.

Expenses
of witnesses.

Costs and
pleaders’
fees, etc.

XXX THE INDIAN PENAL CODE

Explanation .— For the purpdses of enforcing the attendance
of witnesses, the local limits of the Commissioners’ jurisdiction
shall be the limits of the Province in which the election was
held.

6 . The provisions of the Indian Evidence Act, 1872,
shall, subject to the provisions of this Act, be deemed to apply
in all respects to an inquiry.

7 . Notwithstanding anything in any enactment to the
contrary, no document shall be inadmissible in evidence on
the ground that it is not duly stamped or registered.

8. (1) No witness shall be excused from answering any
question as to any matter relevant to a matter in issue in an
inquiry upon the ground that the answer to such question will
criminate or may tend, directly or indirectly, to criminate
him ; or that it will expose, or tend, directly or indirectly, to
expose him to a penalty or forfeiture of any kind r

Provided that —

(») No person who has voted at an election 'shall be
required to state for whom he has voted ; and

(ii) a witness who, in the opinion of the Commissioners,
has answered truly all questions which he has
been required by them to answer shall be entitled
to receive a certificate of indemnity, and such
certificate may be pleaded by such person in any
Court and shall be deemed to be a full and com-
plete defence to or upon any charge under Chap-
ter IX-A of the Indian Penal Code arising out
of the matter to which such certificate relates,
nor shall any such answer be admissible in evidence
against him in any suit or other proceeding.

(2) Nothing in sub-Section ‘(1) shall be deemed to relieve
a person receiving a certificate of indemnity from any dis-
qualification in connection with an election imposed by any law
or any rule having the force of law.

9 . Any appearance, application or act before the Com-
missioners may be made or done by the party in person or by a
pleader duly appointed to act on his behalf :

Provided that any such appearance shall, if the Com-
missioners k so direct be made by the party in person.

• 10 . The reasonable expenses incurred by any person in
attending to give evidence may be allowed by the Commissioners
to such person, and shall, unless the Commissioners otherwise
direct, be deemed to be part of the ebsts.

11. (t) Costs shall be in the discretion of the Commis-
sioners, and the Commissioners shall h^ve full power to determine
by and to whom and to wh^t extent such costs are to tig

INDIAN ELECTION OFFENCES AND INQUIRIES XXXi

paid and to include in their report all necessary recom-
mendations for the purposes aforesaid. The Commissioners
may allow interest on costs at a rate not exceeding six per cent,
per annum, and such interest shall be added to the costs.

(2) The fees payable by a party in respect of fees of his
adversary’s pleader shall be such fees as the Commissioners
may allow.

12 . Any order made by the Governor General or Governor
or Lieutenant-Governor on the report of the Commissioners
regarding the costs of the inquiry may be produced before the
principal civil Court of original jurisdiction within the local
limits of whose jurisdiction any person directed by such
order to pay any sum of money has a place of residence or
business, or* where such place is within the local limits of the
ordinary original civil jurisdiction of a chartered High Court,
before the Court of Small Causes having jurisdiction there,
and such Court shall execute such order or cause it to be execut-
ed in the same manner and by the same procedure as if it were
a decree for the payment of money made by itself in a suit.

13 . Any person who has been convicted of an offence
under section 171-E or 171-F of the Indian Penal Code or
has been disqualified from exercising any electoral right, for a
period of not less than five years, on account of malpractices
in connection with an election shall be disqualified for five
years from the date of such conviction or disqualification
from—

(«) being appointed to, or acting in, any judicial office ;

(A) being elected to any office of any local authority
when the appointment to such office is by election,
or holding or exercising any such office to which
no salary is attached ;

(c) being elected or sitting or voting as a member of any

local authority ; or >

(d) being appointed or acting as a trustee of a public

trust :

Provided that the Governor General, in the case of an
election to the Council of State or the Legislative Assembly,
and the Governor or the Lieutenant-Governor, in the case of
an election to his Legislative Council, may exempt any such
person from such disqualification.

14 . (1) Every officer, clerk, agent or other person who
performs any duties in connection with the recording or count-
ing of votes at an election shall maintain and aid in maintain-
ing the secrecy of the voting and shall not (except for some
purpose authorised by or under any law) communicate to any
person any information calculated to violate such secrecy.

(2) Any person who wilfully acts in contravention of the
provisions of this section shall be punished with imprisonment
of either description for a 0 term not exceeding three months
or with fine, or with both. " .

Execution
of orders
as to costs.

Disqualifica-
tion of per-
sons fdund
guilty of
election
offences.

Mainten-
ance of
secrecy of
voting.

The Explosive Substances Act,

(ACT No. VI of 1908.)

Passed by the Governor General of India in Council.

( Received the assent of the Governor General on the 8th Jxtne,

1908.)

Short titlg,
extent and
application.

Definition of
*' explosive
substance.”

Punishment
for causing
explosion
likely to
endanger life
or property.

Punishment
for attempt
to cause ex*
plosion, or
for making
or keeping
explosive
with intent
to endanger
fife or
property.

An Act further to amend the law relating to explosive
substances.

TX7 WHEREAS it is necessary further to amend the law relating
to explosive substances ; It is hereby enacted as

follows : —

1. (1) This Act may be called the Explosive Substances

Act, 1908.

(2) It extends to the whole of British India and applies
also to —

(a) all native Indian subjects of His Majesty in any

place without and beyond British India ;

(b) all other British subjects within the territories

of any native prince or chief in India.

2. In this Act the expression “ explosive substance ”
shall be deemed to include any materials for making any ex-
plosive substance ; also any apparatus, machine, implement or
material used, or intended to be used, or adapted for causing,
or aiding in causing, any explosion in or with any explosive
substance ; also any part of any such apparatus, machine or
implement. *

3. Any person who unlawfully and maliciously causes by
any explosive substance an explosion of a nature likely to
endanger life or to cause serious injury to property shall,
whether any injury to person or property has been actually
caused or not, be punished with transportation for life or any
shorter term, to which fine may be added, or with imprisonment
for a term which may extend to ten years, to which fine may
be added.

4 . Any person who unlawfully and maliciously —

(a) does any act with intent to cause by an explosive

substance, or conspires to cause by an explosive
substance, an explosion in British India of a nature
likely to endanger life or to cause serious injury to
property; or 1

(b) makes or has in his possession or under his control

any explosive substance r with intent by means
thereof to endanger life, or cause serious injury

EXPLOSIVE SUBSTANCES ACT

XXXlll

to property in British India, or to enable any other
person by means thereof to endanger life or cause
serious injury to property in British India ;

shall, whether any explosion does or does not take place and
whether any injury to person or property has been actually
caused or not, be punished with transportation for a term which
may extend to twenty years, to which fine may be added, or
with imprisonment, for a term which may extend to seven
years, to which fine may be added.

The word " unlawfully " in Sec. 4 of this Act signifies " not for a
lawful object " and the word" maliciously" means and implies an
intention to do and act which is wrongful to the detriment of another
person .*

Under Sec. 399 of the I. P. C. having in his possession or immediate
control any explosive substance is one of several means to an end, whereas
under Sec. 4 (a) of the Explosive Substances Act, it is the offence itself
provided the necessary intent is proved .a

S.4. Cl.(b). — An accused is entitled to know with certainty and
accuracy the exact value of the charge brought against him. But where
the accused fully understood the nature of the offence with which they
were charged they had clearly not been prejudiced by the omission of the
words "unlawfully and maliciously" and "in British India" occurring in
Sec. 4 (b) of this Act. Such an omission can be cured by the verdict. 3

Where B supplied shots and red arsenic for making one bomb only
and to try it in a place without being detected and without intending to
endanger human life or cause serious injury to property, held that 13
had no defence to the charge of being party to a criminal conspiracy
to commit an offence under Cl. (b) of Sec. 4 of this Act, and was
clearly shown to have done overt acts in furtherance of such
conspiracy .4

5. Any person who makes or knowingly has in his
possession or under his control any explosive substance, under
such circumstances as to give rise to a reasonable suspicion
that he is not making it or does not have it in his possession or
under his control for a lawful object, shall, unless he can show
that he made it or had it in his possession or under his control
for a lawful object, be punishable with transportation for a
term which may extend to fourteen years, to which fine may be
added, or with imprisonment for a term which may extend to
five years, to which fine may be added.

6 . Any person who by the supply of or solicitation for
money, the providing of premises, the supply of materials,
or in any manner whatsoever, procures, counsels, aids, abets,
or is accessory to, the commission of any offence under this
Act shall be punished with the punishment provided for the
offence.

7. No Court shall proceed to the trial of any person for
an offence against this Act except with the consent of the
Local Government or the Governor General in Council.

1 Dula Sing , (1925) 9 L. 531.

2 Lalit Chandra Chaudhury • (1911) 39 C. 1 19.

3 Atnrita Lai Hazra , (1915) 42 C. 957.*

4 Bhabananda Banerjee, (1931) 57 C.X. J. 213,

75

Punishment
for making
or possessing
explosives
under sus-
picious cir-
cumstances.

Punishment
of abettors.

Restriction
on trial of
offences.

XXXIV

THE INDIAN PENAL CODE

Where cognizance was taken by a Sub-divisional Magistrate of
an offence under S. 399, I. P. C., and the facts disclosed an offence under
S. 4 (6) of this Act, and a complaint was subsequently filed by the
Superintendent of Police, with the consent of the Government as required
by S. 7, bofore the Additional District Magistrate, held that the latter
had jurisdiction to take cognizance of the offence by reason of tho com-
plaint made to him, and the Government consent to have jurisdiction
being exercised and that the initiation and continuation of the proceedings
by him were legal notwithstanding that he had not withdrawn the original
case to his file. *

1 Lai it Chandra Chakravarty , (1911) 39 C. 119.

The Indian Extradition Act.

(ACT No. XV OF 1903. )

[4th November 1903.]

An Act to consolidate and amend the law relating to the
Extradition and Rendition of Criminals.

WHEREAS it is expedient to provide for the more con-
venient administration in British India of the Extradition Acts,
Aots, 1870 and 1873, and of the Fugitive Offenders Act, 1881 ;

and whereas it is also expedient to amend the law relating
to the extradition of criminals in cases to which the Extradition
Acts, 1870 and 1873, do not apply;

It is hereby enacted as follows : —

Enacted. — The object of this Act is to consolidate and amend
the law relating to offences committed beyond the limits of British India
by British subjects. 1 2 * 4

CHAPTER I.

Preliminary.

1. (1) This Act may be called the Indian Extradition
Act, 1903.

(2) It extends to the whole of British India (including
British Baluchistan, the Santhal Parganas and the Pargana
of Spiti) ; and

(3) It shall come into force on such day as the Governor
General in Council, by notification in the Gazette of India,

may direct.

2 . In this Act, unless th$re is anything repugnant in
the subject or context, —

(a) “ European British subject ” means a European

British subject as defined by the Code of Criminal
Procedure for the time being in force :

A European British Subject by her marriage with an Indian
subject of a Native State does not cease to be a ‘ European British
Subject.’ 3

(b) “ Extradition offence ” means any such offence as

is described in the first schedule : •

(c) “ Foreign State ” means a State to which for the

time being, the Extradition Acts 1870* and 1873,'
apply :

‘Foreign State’ — Nepal is not a Foreign State. 4

1 For Statement of Objects and Reasons, see Gazette of India, 1901,
Pt. V, p. 24 ; for Report of Select Committee, see ibid, 1903, Pt. V, p.
469; for Proceedings in Council see ibid, Pt. VI, pp. 151, 163 and 177.

2 Ward, (1880) 5 M. 3S.

*3 In re Bai Aisha , (1925) 3l Bom. L. R. 62,

4 Gulli Sahu t 42 C. 793.

33 & 34 Viet.,
c. 62 ; 36 &
37 Viet., c.
60 ; 44 & 45
Viet., c. 69.

Short title,
extent and
commence'
ment.

Definitions.

33 & 34
Viet.,

c. 62 ; 36 &
37 Viet,
c. 60.

Requisition
for sur-
render.

Summons or
warrant for
arrest.

Inquiry by
Magistrate,

XXXVi THE INDIAN PENAL CODE

(d) “High Court ” means the High Court as defined

by the Code of Criminal Procedure for the time
being in force :

See s. 4 (1) Cr. P. Code for definition of High Court.

(e) “ Offence " includes any act wheresoever committed

which would, if committed in British India,
constitute an offence : and

(/) “Rules” include prescribed forms.

CHAPTER IP.

Surrender of Fugitive Criminals in case of
Foreign States.

3. (i) Where a requisition is made to the Government
of India or to any Local Government by the Government of any
Foreign State for the surrender of a fugitive criminal of that
State, who is in, or who is suspected of being in British India,
the Government of India or the Local Government, as the case
may be, may, if it thinks fit, issue an order to any Magistrate
who would have had jurisdiction, to inquire into the crime
if it had been an offence committed within the local limits of
his jurisdiction, directing him to inquire into the case.

4 Issue an order*. — The only Magistrate who can be directed to
enquire into the crime under S. 3 (1) is the Magistrate who has previously
issued a warrant for arrest under s. 4 ( 1 ) . 2

4 Local Limits*. — These words do not refer to the Territorial
jurisdiction of the Magistrate selected by Government to conduct
the inquiry, for “any Magistrate " may be so authorised if he
be a first class Magistrate or a Magistrate empowered by the Local Govern-
ment in that behalf. 3

(2) The Magistrate so directed shall issue a summons
or warrant for the arrest of the fugitive criminal according
as the case appears to be one*in which a summons or warrant
would ordinarily issue.

(3) When such criminal appears or is brought before the
Magistrate, the Magistrate shall inquire into the case in the
same manner and have the same jurisdiction and powers, as
nearly as may be, as if the case where one triable by the Court
of Session or High Court, and shall take such evidence as may
be produced in support of the requisition and on behalf of
the fugitive criminal, including any evidence to show that
the crinfe of which such criminalis accused or alleged to have
been convicted is an offence of a political character or is not
an extradition crime.

4 of a political character'. — A fugitive criminal should not be
surrendered if the offence is not of a political character. 4

1 Chapter II has been declared to have effect in British India as if it
were part of the Extradition Act, 1870 (33 & 34 Viet., c. 62) ; see Order
in Council, dated the 7th March 1904, Gazette of India, 1904, Pt. I, p. 363#

2 Rudolf Stallman; (1911) 39 C. 164 (209),

3 Rudolf Stallman, (191* 38 C. 647 (660).

4 In re Castoni , (1891) 7 Q. B. 149.

INDIAN EXTRADITION ACT

XXXV11

(4) If the Magistrate is of opinion that a prima facie case Committal,
is made out in support of the requisition, he may commit the
fugitive criminal to prison to await the orders of the Government

jof India or the Local Government,' as the case may be.

(5) If the Magistrate is of opinion that a prima facie case Bail,
is not made out in support of the requisition, or if the case

is one which is bailable under the provisions of the Code of
Criminal Procedure for the time being in force, the Magis-
trate may release the fugitive criminal on bail.

(6) The Magistrate shall report the result of his inquiry Magistrate’s
to the Goverment of India or the Local Government, as the report,
case may be, and shall forward, together with such report, any

written statement which the fugitive criminal may desire to
submit for the consideration of the Government.

High Court has Jurisdiction under S. 491 Cr. P. Code and
to interfere with extradition proceedings. —

It must be shown that a supreme right such as that i o habeas corpas, or
the direction in the nature of that writ, has been expressly taken away.

There is no such provision in the Indian Extradition Act. 1

But the High Court will not sit in appeal to review and weigh the
evidence. It is sufficient that there should be some evidence, of the
offence upon which the Magistrate may reasonably act.j

(7) If the Government of India or the Local Government, Reference to
as the case may be, is of opinion that such report or written High Court
statement raises an important question of law, it may make if Govcrn-
an order referring such question of law to such High Court as ment thinks
may be named in the order, and the fugitive criminal shall necessary ‘
not be surrendered until such question has been decided.

(8) If, upon receipt of such report and statement or upon Warrant for
the decision of any such question, the Government of India surrender,
or the Local Government, as the case may be, is of opinion

that the fugitive criminal ought to be surrendered, it may issue
a warrant for the custody and removal of such criminal and
for his delivery at a place and to a person to be named in the
warrant.

(9) It shall be lawful for any person to whom a warrant Lawfulness
is directed in pursuance of sub-section (8), to receive, hold in of custody
custody and convey the person mentioned in the warrant, to and retaking
the place named in the warrant, and, if such person escapes
out of any custody to which he may be delivered in pursuance rcn der.
of such warrant, he may be re- taken as a person accused of an
offence against the law of British India may be re-taken upon

an escape.

Appeal but to Privy Council from an order of a Court dis-
charging a fugitive criminal under habeas corpas.*

(10) If such a warrant as is prescribed by sub-section (8) Discharge of
is not issued and executed in the case of any fugitive criminal, fugitive cri-
who has been committed to prison under sub-section (4), within
two months after such committal, the High Court may, upon *° ter

application made to it on behalf of such fugitive criminal and two months,
upon proof ’that reasonable no tice of th e intention to make such

1 In the matter of Rudolf Stallman , (1911) 39C. 164 ; Sulli Sahu , (1914)

42 C. 793.

2 Ibid.

*3 AU. General for the Colony bf Hongkong v. Know A Ling, L. R. 0 P. C.

Xxxviii

THE INDIAN PENAL CODE

Magistrate
to issue war-
rant o? ar-
rest in cer-
tain cases.

Issue of
warrant to
be reported
forthwith.

Person arres-
ted not t o be
detained
unless order
received.

Bail.

Power of
Government
to refuse to
issue order
under sec-
tion 3 when
crime of
political
character.

Power of
Government
to discharge
any person
in custody at
any time.

References
to " Police
Magistrate ”
and “ Secre-
tary of
S^ate ” in
section 3 of
Extradition
Act, 1870.

application has been given to the Government of India or the
Local Government, as the case may be, order such criminal
to be discharged, unless sufficient cause is shown to the contrary.

4 . (i) Where it appears to any Magistrate of the first
class or any Magistrate specially empowered by the Local
Government in this behalf that a person within the local limits
of his jurisdiction is a fugitive criminal of a Foreign State, he
may, if he thinks lit, issue a warrant for the arrest of such
person, on such information of complaint and on such evidence
as would, in his opinion, justify the issue of a warrant of the
crime of which he is accused or has been convtt ted had been
committed within the local limits of his jurisdiction.

*(2) The Magistrate shall forthwith report the issue of a
warrant under this section to the Local Government.

(3) A person arrested on a warrant issued under this section
shall not be detained more than two months unless within that
period the Magistrate receives an order made with reference
to such person under section 3, sub-section (1).

(4) In the case of a person arrested or detained under
this section the provisions of the Code of Criminal Procedure
for the time being in force relating to bail shall apply in the
same manner as if such person were accused of committing in
British India the crime of which he is accused or has been
convicted.

5. 4 . — Under this sedion, sub-sec. (1), the Magistrate may issue a
warrant when the person to be accused is within his jurisdiction, s. 4
merely provide? a preliminary procedure. Under it an arrest may be
effected before the receipt of the requisition mentioned in s. 3, otherwise
the criminal might escape, if the receipt of the requisition in the usual
diplomatic way had to be awaited in even every case. The two sections
do not overlap, and as soon as an arrest has been effected under this
section and the question of bail or detention has been determined, its
operation is for all practical purposes, exhausted . 1

5 . (1) If the Government pi India or any Local Government
is of opinion that the crime of which any fugitive criminal of a
Foreign State is accused or alleged to have been convicted is
of & political character, if may, if it think fit, refuse to issue any
order under section 3, sub-section (1).

(2) The Government of India or the Local Government
may also at any time stay any proceedings taken under this
Chapter and direct any warrant issued under this Chapter to
be cancelfed and the person for whose arrest such warrant has
been issued to be discharged.

6 . The expressions "the Police Magistrate" and "the
Secretary of State ” in section 3 of the Extradition Act, 1870,
shall be read as referring respettively.to the Magistrate directed
to inquire into a case under section 3 of this /Ebt, and to the
Government of India or the Local Government, as the case
may be.

I Per Mookerjee, J., in fiudolf Stallman, (1911) 39 C. 164 (207).

INDIAN EXTRADITION ACT

xxxix

CHAPTER III.

Surrender of Fugitive Criminals in case of
States other than Foreign States.

7 . (i) Where an extradition offence has been committed
or is supposed to have been committed by a person, not being a
European British subject, in the territories of any State not
being a Foreign State and such person escapes into or is in
British India and the Political Agent in or for such State issues
a warrant, addressed to the District Magistrate of any district
in which such person is believed to be 1 (or if such person is
believed to be in any Presidency-town to the Chief Presidency
Magistrate of such town), for his arrest and delivery at a place
and to a person or authority indicated in the warrant, such
Magistrate shall act in pursuance of such warrant and may
give directions accordingly.

(2) A warrant issued as mentioned in sub-section (1) shall
be executed in the manner provided by the law for the time
being in force with reference to the execution of warrants
and the accused person, when arrested, shall 1 (be produced
before the District Magistrate or Chief Presidency Magistrate,
as the case may be, who shall record any statement made by
him; such accused person shall then), unless realeased in
accordance with the provisions of this Act, be forwarded to
the place and delivered to the person or authority indicated
in the warrant.

(3) The provisions of the Code of Criminal Procedure for
the time being in force in relation to proclamation and attach-
ment in the case of persons absconding shall, with any necessary
modifications, apply where any warrant has been received by a
District Magistrate 1 (or Chief Presidency Magistrate) under
this section as if the warrant had been issued by himself.

In all cares where inquiries are held by Magistrate with a
view of extraditing accused persons itnvould be desirable that they should,
if possible, be present thereat . 2

Nepal is not a Foreign State within the meaning of this Act. - Where
a warrant has been issued by the Political Agent, under s. 7 of the Act,
its execution by the District Magistrate in British India, in accordance
with the Act, is an executive act, and the High Court cannot interfere in
revision with the proceedings of the Magistrate, but if the latter considers
himself aggrieved thereby, he can invoke the action of the Government
by s. 15.3

The Bombay High Court has held that an order under this section
is a judicial order and can be revised by the High Court either under
s. 439 or s. 561-A, or interfered with under s. 491, Cr. P. Code.4

8 . (1) Where a Political Agent has directed by endorsement
on any such warrant that the person for whose arrest it is
issued may be released on executing a bond with sufficient
sureties for his attendance before a person or authority indicated

- ■»' i— ; — -

1 These ' words were inserted by s. 2 of the Indian Extradition

(Amendment) Act, 19X3. T _ ._ 0 n n r * a**

2 Husseinally Niazatty, (1905) 7 Bom. L. R. 463 : 2 Cr. L. J. 439.

3 Gulli Sahti , (1914) 42 C. 793 : 19 C W. N 221 : 21 C. L. J. 08.

. 4 Bai Aisha , (J928) 3l Bom L. R. 02 distinguishing Gulh Saku.
914) 42 C. 612/ 9

Issue of
warrant by
Political
Agents in
certain cases

Execution of
such warrant

Proclama-
tion and
attachment
in case of
persons ab-
sconding.

Release on

giving

security.

xl

THE INDIAN PENAL CODE

Magistrate
to retain
bond.

Re-arrest i
case of
default.

Deposit in
lieu of bond,
and

forfeiture
of bonds.

Power to re-
port case for
orders of
Local

Government.

Requisitions
by States not
being foreign
States,

in this behalf in the warrant at a specified time and place, the
Magistrate to whom the warrant is addressed shall on such
security being given release such person from custody.

(2) When security is taken under this section, the Magistrate
shall certify the fact to the Political Agent who issued the
warrant, and shall retain the bond.

(3) If the person bound by any such bond does not appear
at the time and place specified, the Magistrate may, on being
satisfied as to his default, issue a warrant directing that he be
re-arrested and handed over to any person authorized by the
Political Agent to take him into custody.

(4) In the case of any bond executed under this section,
the’ Magistrate may exercise the powers conferred by the Code
of Criminal Procedure for the time being in force in relation to
taking a deposit in lieu of the execution of a bond and with
respect to the forfeiture of bonds and the discharge of sureties.

Where a person arrested under a warrant issued by a Political
Resident under the Extradition Act is brought before a Magistrate, the
Magistrate Has no power to release him on bail binding him to appear
before the Political Resident in the absence of an endorsement on the
warrant under s. H of the Extradition Act authorising the Magistrate to
admit the arrested person on bail.i

[8-A. Notwithstanding anything contained in section 7,
sub-section (2) or in section 8, when an accused person arrested
in accordance with the provisions of section 7 is produced
before the District Magistrate or Chief Presidency Magistrate,
as the case may be, and the statement (if any) of such accused
person has been recorded, such Magistrate may, if he thinks
fit, before proceeding further report the case to the Local
Government and, pending the receipts of orders on such report,
may detain such accused person in custody or release him on his
executing a bond with sufficient sureties for his attendance
when required.] 1 2 3

9 . Where a requisition is made to the Government of
India or to any Local Government by or on behalf of any State
not being a Foreign State, for the surrender of any person
accused of having committed an offence in the territories of such
State, such requisition shall (except in so far as relates to the
taking of evidence to show that the offence is of a political
character or is not an extradition crime) be dealt with in
accordance with the procedure prescribed by section 3 for
requisitions made by the Government of any Foreign State
as if it were a requisition made by any such Government under

that section.

«

Provided that, if there is a Political Agent in or for any such
State, the requisition shall be made through such Political Agent.

The Act gives power to Nepal State to registration tbeautho*
rity in British territories to arrest and deliver fpgitivd offenders of their
territory . 3 * * ►

1 Rajkumar Dutta, (1907) 12 C. W. N. 012.

2 Section 8-A was inserted by section 3 of the Indian Extradition
(Amendment) Act, 1913 (I of 1913), General Acts, Vttl. VII.

3 Jaipal B hagai , 1 P. 6J.

INDIAN EXTRADITION ACT

Xll

10. (i) If it appears to any Magistrate of the first class
or any Magistrate empowered by the Local Government in
this behalf that a person within the local limits of his jurisdiction
is accused or suspected of having committed an offence in any
State not being a Foreign State and that such person may
lawfully be surrended to such State, or that a warrant may be
issued for his arrest under section 7, the Magistrate may, if
he thinks fit, issue a warrant for the arrest of such information or
complaint and on such evidence person on such as would, in his
opinion, justify the issue of a warrant if theoffence had been
committed within the local limits of his jurisdiction.

(2) The Magistrate shall forthwith report the issue of a
warrant under this section, if the offence appears or is alleged
to have been committed in the territories of a State for which
th^rc is a Political Agent, to such Political Agent and in other
cases to the Local Government.

(3) A person arrested on a warrant issued under this
section shall not, without the special sanction of the Local
Government, be detained more than two months, unless within
such period the Magistrate receives an order made with re-
ference to such person in accordance with the procedure pre-
scribed by section 9, or a warrant for the arrest of such person
under section 7.

(4) In the case of a person arrested or detained under this
section, the provisions of the Code of Criminal Procedure for the
time being in force relating to bail shall apply in the same manner
as if such person were accused of committing in British India
the offence with which he is charged.

11. (1) A person accused of an offence committed in British
India, not being the offence for which his surrender is asked,
or undergoing sentence under any conviction in British India,
shall not be surrendered in compliance with a warrant issued
by a Political Agent under section 7 or a requisition made by or
on behalf of any State not being a Foreign State under section 9,
except on the condition that such person be re-surrendered to
the Government of India or the Local Government, as the
case may be, on the termination of his trial for the offence for
which his surrender has been asked ;

Provided that no such condition shall be deemed to prevent
or postpone the execution of a sentence of death lawfully passed.

(2) On the surrender of a person undergoing sentence
under a conviction in British India his sentence shall be deemed
to be suspended until the date of his re-surrender, when it shall
revive and have effect for the portion thereof which was
pired at the time of his surrender.

12. The provisions of this Chapter with reference to

accused persons shall, with any necessary modifications, apply
to the case of a person who, having being convicted of an offence
in the territories of any State, not being a Foreign State, has
escaped into or is in 'British India before his sentence has
expired. *

Power to
Magistrates
to issue
warrants of
arrest in
certain
cases.

Issue of
warrant to
be reported
forthwith.

Limit of
time of
detention of
person
arrested.

Bail.

Surrender
of person
accused of,
or under-
going

sentence for,
offence in
British
India.

Suspension
of sentence
on surren-
der.

Application
of Chapter
to convicted
persons. ^

THE INDIAN PENAL CODE

xlii

Abetment
and at-
tempt.

Lawfulness
of custody
and re-
taking under
warrant
issued under
Chapter.

Power 'of
Government
to stay
proceedings
and dis-
charge
person in
custody.

Application
of Chap, to
offences
committed
before its
commence-
ment.

, Receipt in
evidence of
exhibits, ’
depositions
and* other
documents.

Authentica-
tion of the
same.

13. Every person who is accused or convicted of abetting
or attempting to commit any offence shall be deemed, for the
purposes of this chapter, to be accused or convicted of having
committed such offence, and shall be liable to be arrested and
surrendered accordingly.

14. It shall be lawful for any person to whom a warrant
is directed in pursuance of the provisions of this Chapter, to
receive, hold in custody and convey the person mentioned in
the warrant, to the place named in the warrant, and, if such
person escapes out of any custody to which he may be delivered
in pursuance of such warrant, he may be re-taken as a person
accused of an offence against the law of British India may be
re-taken upon an escape.

15. The Government of India or the Local Government
may, by order, stay any proceedings taken under this Chapter,
and may direct any warrant issued under this Chapter to be
cancelled, and the person for whose arrest such warrant has been
issued to be discharged.

16. The provisions of this Chapter shall apply to an offence
or to an extradition offence, as the case may be, committed
before the passing of this Act, and to an offence in respect of
which a Court of British India has concurrent jurisdiction.

17. (x) In any proceedings under this Chapter, exhibits
and depositions (whether received or taken in the presence of
the person against whom they arc used or not) and copies thereof,
and official certificates of facts and judicial documents stating
facts, may, if duly authenticated, be received as evidence.

( 2 ) Warrants, depositions or statements on oath which
purport to have been issued, received or taken by any Court
of, or judicial documents stating the fact of, conviction before
any such Court, shall be deemed duly authenticated, —

(a) if the warrant purports to be signed by a Judge,

Magistrate or officer of the State where the same
was issued or acting in or for such State:

(b) if the depositions or statements or copies thereof

purport to be certified, under the hand of a Judge,
Magistrate or officer of the State where the same
were taken, or acting in or for such State, to be the
original depositions or statements or to be true
« copies thereof, as the case may require :

(c) if the certificate of, or judicial document stating the

fact of, a conviction purports to be certified by a
Judge, Magistrate or officer of the State where the
conviction took place or .acting in or for such State :

(d) if the warrants, depositions, statements, copies, certi-

ficates and judicial documents as the case may be,
are authenticated by the*o$th of some witness or by
the official seal of a minister of the State where the
same were lfespectively issued, taken or given.

INDIAN EXTRADITION ACT xliii

(3) For the purposes of this section "warrant” includes
any judicial document authorizing the arrest of any person
accused or convicted of an offence. •*,

18 . Nothing in this Chapter shall derogate from the pro>
visions of any treaty for the extradition of offender^ and the
procedure provided by any such treaty shall be followed in any
case to which it applies and the provisions of this Act shall be
modified accordingly.

Whore criminal proceedings were instituted in Pandicherry against
two British subjects for the offence of theft committed therein and
the Governor of Pandi cherry applied to a Dt. Magistrate in British India
for their extradition held that the Magistrate was bound to arrest the
persons — proceeded against and handed them over to the French authori-
ties without further inquiry. T

CHAPTER IV 1 2 3

Rendition of Fugitive Offenders in His Majesty’s
Dominions.

19 . For the purpose of applying and carrying into effect
in British India the provisions of the Fugitive Offenders Act,
1881, 2 the following provisions are hereby made : —

(a) the powers conferred on “ Governors ” of British

possessions may be exercised by any Local Govern-
ment :

(b) the powers conferred ona“ Superior Court ” may be

exercised by any Judge of a High Court :

(1 c ) the powers conferred on a “ Magistrate ” may be
exercised by any Magistrate of the first class or by
any Magistrate empowered by the Local Governments
in that behalf : and

(d) the offences committed in British India to which the
Act applies, are piracy, treason, and any offence
punishable under this Indian Penal Code with
rigorous imprisonment for a term of twelve months
or more or with any greater punishment.

CHAPTER V

Offences committed at Sea.

20 . Where the Government of any State outside India
makes a requisition for the surrender of a person accqped^of an
offence committed on board any vessel on the high seas which
comes into any port of British India, the Local Government and

1 InreMuthu Reddi, (1930) 59 M. L. j.278: following Rahamalali,
(1919) 47 C. 37 and explaining in ve Coles/e Culling ton, (1920) 48 C. 328.

2 An order in Council datid 7th March, 1904, has declared that this
Chapter shall be recognised and given effect to throughout His Majesty’s
Dominions and on the high seas as if it were a part of the Fugitive Offenders
Act 1881 (44 & 45, Viet., c. 69).

3 For notification (i ) by the Government of Madras in respect of the
Cit/ of Madras, see Mad. R. & # 0. (2) by the Government of Bombay,
see Bombay Government Gazette, 1912, Pt f . I, p. 982.

Definition of
“ warrant.”

Chapter not
to derogate
from trea-
ties .

Application
of Fugitive
Offenders,
Act, 1881.
44 & 45
Viet. c. 69.

XLV of
I860.

Requisition
for .surren-
der in case
of offence
committed
at Sea.

Execution of
commissions
issued by
Criminal
Courts out-
side British
India.

Power to
mate rules.

Xliv THE INDIAN PENAL CODE

any Magistrate having jurisdiction in such port and authorized
by the Local Government in this behalf may exercise the powers
conferred by this^ct.

CHAPTER VI.

Execution .of Commissions issued by Criminal Courts
jfe outside British India.

21. The testimony of any witness may be obtained in
relation to any criminal matter pending in any Court or tribunal
in any country or place outside British India in like manner
as it may be obtained in any civil matter under the provisions
of the Code of Civil Procedure for the time being in force with
respect to commissions, and the provisions of that Code relating
thereto shall be construed as if the term " suit " included a
criminal proceeding:

Provided that this section shall not apply when the
evidence is required for a Court or tribunal in any State outside
India other than a British Court and the offence is of a poli-
tical character.

CHAPTER VII.

Supplemental.

22. (i) The Governor General in Council may make
rules 1 to carry out the purposes of this Act.

( 2 ) In particular and without prejudice to the generality
of the foregoing power, such rules may provide for —

(«) the removal of prisoners accused or in custody under
this Act, and their control and maintenance until
such time as they are handed over to the persons
named in the warrant as are entitled to receive them ;

(b) the seizure and disposition of any property which is

the subject of, or required for proof of, any alleged
offence to which this Act applies ;

(c) the pursuit and arrest in British India, by officers

of the Government or other persons authorised in
* , this behalf, of persons accused of offences committed

elsewhere ; and

(i) the procedure and practice to be observed in extradi-
tion proceedings.

( 3 ) Rules made under this section shall be 'published in
the Gazette of India and shall, thereupon have effect as if
enacted by this Act.

1 For rules see Gazette of. India, 1904, Pt. I, p. 364.

INDIAN EXTRADITION ACT

xlv

23 . Notwithstanding anything in the Code of Criminal Detention ol

Procedure, 1898, any person arrested without an order from a un .

Magistrate and without a warrant, in pbxsuance of the provisions der sec tion
of section 54, clause seventhly, of the said Code, may, under the 54 , clause
orders of a Magistrate within the local limits of whose jurisdiction sewnjMy.
such arrest was made, be detained in the same manner and Act v - 1898-
subject to the same restrictions as a person arrested on a

warrant issued by such . Magistrate under section 10.

■m*

24. [Repeals.] Rep., by the Repealing and Amending v of 1898 .
Act, 1914 {X of 1914).

Xlvi THE INDIAN PENAL CODE

THE FIRST SCHEDULE.

ExtrXdition offences.

■or

[See section 2, clause (b), and Chapter III ( Surrender of
Fugitive Criminals in case of States other than
Foreign States .) J

(The sections referred to are the sections of the Indian Penal Code.)

Frauds upon creditors (section 206).

Resistance to arrest (section 224).

-Offences relating to coin and stamps (sections 230 to
263A).

Culpable homicide (sections 299 to 304).

Attempt to murder (section 307).

Thagi (sections 310, 311).

Causing miscarriage, and abandonment of child (sections 312
to 317).

Wrongful confinement (sections 347, 348).

Kidnapping and slavery (sections 360 to 373).

Rape and unnatural offences (sections 375 to 377).

Theft, extortion, robbery, etc. (sections 378 to 414).

Cheating (sections 4x5 to 420).

Fraudulent deeds, etc. (sections 421 to 424).

Mischief (sections 425 to 440).

Lurking house-trespass (sections 443, (444) ’].

Forgery, using forged documents, etc. (sections 463 to
477A).

Desertion from any units of Indian States Forces declared
by the Governor General in Council, by notification in the
Gazette of India, to be a unit desertion from which is an extra-
dition offences, 3

Piracy by law of nations.

Sinking or destroying a vessel at sea, or attempting or
conspiring to do so. *■

Assault on board a ship on the high seas with intent to
destroy life or to do grievous bodily harm.

Revolt or conspiracy to revolt by two or more persons on
board a ship on the high seas against the authority of the master.

Any offence against any section of the Indian Penal Code
or against any other law which may, from time to time, be
specified by the Governor General in Council by notification
in the Gazette of India either generally for all States or specially
for any «ne or more States.

THE SECOND SCHEDULE.

Enactments repealed.

[Rep., by the Repealing and Amending Act, 1914 (X of 1914)].

1 These figures were substituted for the figures '446 " by section 2
and schedule t of the Repealing and Arilending Act, 1014 (X of 19l4).

3 Substituted by Act XVI of 1922, s. 2 and Act VIII of 1030 Scb,

The Indian Merchandise Marks Act

(ACT IV of 1889.) 1

1st March, x 88 g.

An Act to amend the Law relating to Fraudulent Marks on

Merchandise.

A 17 HEREAS it is expedient to amend the law relating to
V V fraudulent marks on merchandise ; It is hereby enacted
as follows : —

1. (z) This Act may be called the Indian Merchandise
Marks Act, 1889.

(2) It extends to the whole of British India ; and 2 3 4 * * * *

(3) It shall come into force on the first day of April, 1889.

2 . In this Act, unless there is something repugnant in the
subject or context, —

(z) " trade mark ” has the meaning assigned to that
expression in section 478 of the Indian Penal
Code as amended by this Act :

(2) “ trade description ”■* means any description, state-
ment or other indication, direct or indirect, —

(a) as to the number, quantity, measure, gauge or weight

of any goods, or

(b) as to the place or country in which, or the time at

which, any goods were made or produced, or

(c) as to the mode of manufacturing or producing any

goods, or

(d) as to the material of which any goods are composed,

or

(e) as to any goods being the subject of an Existing

patent, privilege or copyright ;

1 For Statement of Objects and Reasons, see Gazette of India, 1888,
Pt.V, p. 109 ; for Report of the Select Committee, see ibid, 1889, Pt. V,
P. 27 ; and for Proceedings in (Council, see ibid, 1888, Pt. VI, pp. Ill
and 136, and ibid, 1889, Pt. VI. p. 38.

2 The words “ subject to the provision of the last section of this Act ”
were repealed by the Indian Merchandise Marks and Sea Customs Acts
Amendment Act, 1891 (9 of ,l s 91), s. I, General Acts, Vol. VI.

3 Act XLV of 1860. *

4 Cf. The Merchandise Marks Act, 1887 {60 and 61 Viet.,] c. 28, s. 3.

Title, ex-
tent and
commence-
ment.

Definition.

xlviii

THE INDIAN PENAL CODE

Substitu-
tion of new
sections for
Sections
478 to 489
of the In-
dian Penal
Code.

Provisions
supplemen-
tal to the
definition
of false
trade des-
cription.

and the use of any numeral, word of mark which
according to the custom of the trade is commonly
taken to be an indication of any of the above
matters shall be deemed to be a trade description
within the meaning of this Act :

(3) “ false trade description ” means a trade description

which is untrue in a material respect as regards
the goods to which it is applied, and includes
every alteration of a trade description, whether
by way of addition, effacement or otherwise, where
that alteration makes the description untrue in a
material respect, and the fact that a trade de-
scription is a trade mark or part of a trade mark
shall not prevent such trade description being a
false trade description within the meaning of
this Act :

(4) " goods ” means anything which is the subject of

trade or manufacture : and

(5) " name ” includes any abbreviation of a name.

3 . For that part of Chapter XVIII of the Indian Penal
Code which relates to Trade and Property Marks, Ss. 478 to 489
of the Indian Penal Code have been substituted, see the same
printed in the Code at pp. 950-967.

Trade Descriptions.

1 4 . (r) The provisions of this Act respecting the applica-
tion of a false trade description to goods or respecting goods to
which a false trade description is applied, shall extend to the
application to goods of any such numerals, words or marks, or
arrangement or combination.thereof, whether including a trade
or not, as are or is reasonably calculated to lead persons, to
believe that the goods are the manufacture or merchandise of
some person other than the person whose manufacture or
merchandise they really are, and to goods having such numerals,
words or marks, or arrangement or combination, applied
thereto.

(2) The provisions of this Act respecting the application
of a false trade description to goods, or respecting goods to which
a false tjade description is applied, shall extend to the applica-
tion to goods of any false name or initials of a person, and to
goods with the false name or initials of a person, in like manner
as if such name or initials were a trade description, and for the
purpose of this enactment the expression false name or initials
means as applied to any goods any name or initials —

(a) not being a trade mark, or part of a trade mark,
and

1 Cf. the Merchandise M&rks Act, 1887 [50 ft 51 Viet., c. 28, s. 8 (2)].

INDIAN MERCHANDISE MARKS ACT

xiix

( b ) being identical with, or a colourable imitation of,
, the name or initials of a person carrying on busi-
ness in connection with goods of the same descrip-
tion and not having authorized the use of such
name or initials.

(3) A trade description which denotes or implies that
there are contained in any goods to which it is applied more
yards, feet or inches than there are contained therein standard
yards, standard feet or standard inches in a false trade descrip-
tion.

1 5 . (1) A person shall be deemed to apply a trade de-
scription to goods who —

(a) applies it to the goods themselves, or

o/trade

descriptions

( b ) applies it to any covering, label, reel or other thing
in or with which the goods are sold or are exposed
or had in possession for sale or any purpose of
trade or manufacture, or

( c ) places, encloses or annexes any goods which are

sold, or are exposed or had in possession for sale
or any purpose of trade or manufacture, in, with
or to any covering, label, reel or other thing to which
a trade description has been applied, or

(d) uses a trade description in any manner reasonably

calculated to lead to the belief that the goods in
connection with which it is used are designated or
described by that trade description.

(2) A trade description shall be deemed to be applied

whether it is woven, impressed or otherwise worked into or
annexed or affixed to the goods or any covering, label, reel
or other thing. *

(3) The expression “ covering '* includes any stopper,
cask, bottle, vessel, box, cover, capsule, case, frame or wrapper,
and the expression “ label ” includes any band or ticket.

The improper use of a trade name might fall within the purview of
9. 5 of the Merchandise Marks Act, and be punishable under s. 6 or s. 7
as a false trade description. 1 2 3

36. If a person applies a false trade description fc> goods, Penalty for
he shall, ’subject to the provision^ of this Act, and unless he applying a
proves that he acted without intent to defraud, be punished ascription
with imprisonment for a term which may extend to three months F
or with fine which may extend to two hundred rupees, and in
the case of a second or subsequent conviction with imprisonment
which may extend to one year, or with fine, or with both.

1 Cf. the Merchandise Marks Act, 1887 [60 & 61 Viet., c. 28, s. 6].

2 Anath Nath Dey. (1912) 4(V C. 291.

3 Cf. the Merchandise Marks Act, 1887 (50 & 61 Viet., c. 28, s. 2 (1)].

^ 76

Penalty for
selling
goods to
which a
false trade
description
is applied.

Uninten-
tional con-
travention
of the law
relating to
marks and
descriptions

1 THE INDIAN PENAL CODE

7 . If a person sells, or exposes or has in possession for sale
or any purpose of trade or manufacture, any goods or things
to which a false 1 2 trade description is applied, he shall unless
he proves —

(a) that, having taken all reasonable precautions against

committing an offence against this section, he had
at the time of the commission of the alleged
offence no reason to suspect the genuineness of
the trade description, and

(b) that, on demand made by or on behalf of the prose-

cutor, he gave all the information in his power
with respect to the persons from whom he obtained
such goods or things, or

(c) that otherwise he had acted innocently,

be punished with imprisonment for a term which may extend
to three months or with fine which may extend to two hundred
rupees, and in case of a second or subsequent conviction with
imprisonment which may extend to one year, or with fine,
or with both.

Unintentional Contravention of the Law relating to Marks and

Descriptions.

2 8. Where a person is accused under section 482 of
the Indian Penal Code of using a false trade mark or property
mark by reason of his having applied a mark to any goods,
property or receptacle in the manner mentioned in section 480
or section 481 of that Code, as the case may be, or under section 6
of this Act of applying to goods any false trade description,
or under section 485 of the Indian Penal Code of making any
die, plate or other instrument for the purpose of counterfeiting
a trade markor property mark, and proves —

(a) that in the ordinary course of his business he is

employed, on behalf of other persons/ to apply
trade marks or property marks, or trade de-
scriptions, or, as the case may be, to make dies,
plates or other instruments for making, or being
used in making, trade marks or property marks,
and that in the case which is the subject of the
charge he was so employed and was not interested
in the goods or other thing by way of profit or
commission dependent on th sale thereof, sand

(b) that he took reasonable precautions agajjist com-

mitting the offence charged, and

■ (c) that the had, at the time of the commission of the
alleged offence, no reason to suspect the genuine-
ness of the mark or description, and

1 For instructions at to prosecutions under sections 0 and 7 for
offences relating to short reeling of yarn in Indian mills, see Resolution
by the Department of Commerce and Industry, Nos. 2843 — 2866-4.,
dated the 14th April, 906, Bom. Govt., (Gazette, 1906, Pt. I, p. 487.

2 Cf. the Merchandise Mfrks Act, 1887 (60 4 61 Viet., c. 28, s. 6).

INDIAN MERCHANDISE MARKS ACT H

(d) that, on demand made by or on behalf of the prose-
cutor, he gave all the information in his power
with respect to the persons on whose behalf the
mark or description was applied,

he shall be acquitted.

Forfeiture of Goods.

1 9 . (i) When a person is convicted under section 482
of the Indian Penal Code » of using a false trade mark, or under
section 486 of that Code of selling, or exposing or having in
possession for sale or any purpose of trade or manufacture,
any goods or things with a counterfeit trade mark applied
thereto, or under section 487 or section 488 of that Code of
making, or making use of, a false mark, or under section 6 or
section 7 of this Act of applying a false trade description to
goods, or of selling, or exposing or having in possession for sale
or any purpose of trade or manufacture, any goods or things
to which a false trade description is applied, or is acquitted
on proof of the matter or matters specified in section 486 of
the Indian Penal Code or section 7 or section 8 of this Act, the
Court convicting or acquitting him may direct the forfeiture
to Her Majesty of all goods and things by means of, or in
relation to, which the offence has been committed or, but for
such proof as aforesaid, would have been committed.

(2) When a forfeiture is directed on a conviction and an
appeal lies against the conviction, an appeal shall lie against
the forfeiture also.

(3) When a forfeiture is directed on an acquittal and
the goods or things to which the direction relates are of value
exceeding fifty rupees, an appeal against the forfeiture may be
preferred, within thirty days from the date of the direction,
to the Court to which in appealable cases appeals lie from
sentence of the Court which directed the forfeiture.

(Amendment of the Sea Customs Act, 1878.)

J 10 . (2) For clause (d) of section 18 of the 4 Sea Customs
Act, 1878, the following shall be substituted, namely: —

(d) goods having applied thereto a counterfeit trade
mark within the meaning of the Indian Penal
“ Code, 5 or a false trade description within the

meaning of the Indian Merchandise fifttrks Act,

' 1889. 8

1 Cf. the Merchandise Marks Act, 1887 [60 & 61 Viet., c. 28, s. 2
(3) (in)].

2 Act XLV of 1860. »

3 Cf. the Merchandise Marks Act, 1887 [60 & 61 Viet., c. 28, 9 . 16

<*)].

4 Act 8 of 1878, as modified up to 1st June, 1908,

6 Act XLV of I860, • ‘

• 6 Act VI of 1889.

Forfeiture
of goods.

Amend-
ment of
section 18,
Act VIII of
1878.

Addition of
a section
after sec-
tion 19,

Act VIII of
1878.

lii THE INDIAN PENAL CODE

($) goods made or produced beyond the limits of the
United Kingdom and British India and having
applied thereto any name or trade mark being, or
purporting to be, 1 * * * the

name or trade mark of any person who is a manu-
facturer, dealer or trader" in the United Kingdom
or in British India unless—

( i ) the name or trade mark is, as to every application
thereof, accompanied by a definite indication of
the goods having been made or produced in a
place beyond the limits of the United Kingdom
and British India, and

(ii) 2 3 4 [the country in which that place is situated is]
in that indication indicated in letters as large
and conspicuous as any letter in the name or
trade mark, and in the same language and
character as the name or trade mark.”

(2) To section 18 of the Sea Customs Act, 1878, as amended
by sub-section (i), the following shall be added, namely: —

" (/) piece-goods, such as are ordinarily sold by length
or by the piece, which—

(i) have not conspicuously stamped in English numerals

on each piece the length thereof in standard yards,
or in standard yards and a fraction of such a
yard, according to the real length of the piece,
and

(ii) have been manufactured beyond the limits of

India, or,

(Hi) having been manufactured within those limits have
been manufactured beyond the limits of British
India in premises which, if they were in British
India, would be h factory as defined in the- Indian
Factories Act, 1881. 3

11 . The following shall be added after section 19 of the Sea
Customs Act, 1878, « namely

* " 19A. (1) Before detaining any such goods as are or
may be specified in or under section 18 or section 19, as the
case may be, or taking any further proceedings with a view to
the confiscation thereof under this Act, the Chief Customs
Officer or other officer appointed by the Local Government

1 The words 11 or being a colourable imitation of ” were repealed
by the Sea Customs (Amendment) Act, 19(4 (10 of 1904).

2 These words were substituted for the word9 ‘ that place and the

country in which it is situated are ” by the Indian Merchandise Marks
and Sea Customs Act Amendment Act, 1(91 (9 of 1891),' s. 3, General
Acts, Vol. VI. *

3 Act XV of 1881.

4 Act VIII of 1878.

6 C/. the Merchandise Marks Act, l $87 V50 Sc 51 Viet., c. 28, s, 16
(2), (3), (4), (fi), (7) and (8)]. '

INDIAN MERCHANDISE MARKS ACT liii

in this behalf may require the regulations under this section,
whether as to information, security, conditions or other matters,
to be complied with and may satisfy himself in accordance
with those regulations that the goods are such as are prohibited
to be imported.

(2) The Governor General in Council may make 1 2 regula-
tions, either general or special, respecting the detention and
confiscation of goods the importation of which is prohibited,
and the conditions, if any, to be fulfilled before such detention
and confiscation, and may by such regulations determine the
information, notices and security to be given, and the evidence
requisite for any of the purposes of this section and the mode
of verification of such evidence.

(3) Where there is on any goods a name which is identical
with, or a colourable imitation of, the name of a place in the
United Kingdom or British India, that name, unless accompanied
in equally large and conspicuous letters, and in the same
language and character, by the name of the country in which
such place is situate, shall be treated for the purposes of sec-
tions 18 and 19 as if it were the name of a place in the United
Kingdom or British India.

(4) Such regulations may apply to all goods the importation
of which is prohibited by section 18 or under section 19, or
different regulations may be made respecting different classes
of such goods or of offences in relation to such goods.

(5) The regulations may provide for the informant
reimbursing any public officer and the Secretary of State for
India in Council all expenses and damages incurred in respect
of any detention made on his information, and of any pro-
ceedings consequent on such detention.

(6) All regulations under this section shall be published in
the Gazette of India and in the Calcutta, Fort St. George, Bombay
and Burma Gazettes.”

Stamping of Length of Piece-goods manufactured in British India.

12 . (1) Piece-goods, such as are ordinarily sold by length
or by the piece, which have been manufactured in premises
which are a factory as defined in the Indian Factories Act,
1881, 2 shall not be removed from those premises without
having conspicuously stamped in English numerals on each
piece the length thereof in standard yards, or ii\ standard
yards and a fraction of such a yard, according to the real
length of the piece.

(2) If any person removes or attempts to remove any such
piece-goods from any such premises without the length of each
piece being stamped in the* manner mentioned in sub-section (1),
every such piece, and everything used for the packing or removal

1 For such Regulation, see General Statutory Rules and Orders,
Vo!. I, p. 378, and Gazette of’lndia, 1907, Pt. I, p. 401.

2 Act XV of 1881. 1

Stamping of
length of
piece-goods
manufactur-
ed in British
India.

Evidence of
origin of
goods im-
ported by
sea.

Costs of
defence or
prosecution

Limitation
of prose-
cution.

Authority of
the Governor
-General in
Council to
issue instruc-
tions as to
administra-
tion of this
Act.

Implied
warranty on
sale of mark-
ed goods.

liv THE INDIAN PENAL CODE

thereof, shall be forfeited to Her Majesty, and such person
shall be punished with fine which may extend to one thousand
rupees.

1 13. In the case of goods brought into British India
by sea, evidence of the port of shipment shall, in a prosecution
for an offence against this Act or section 18 of the Sea Customs
Act, 1878 , s as amended by this Act, be prima facie evidence
of the place or country in which the goods were made or produced.

* 14. ( 1 ) On any such prosecution as isment ioned in
the last foregoing section, or on any prosecution for an offence
against any of the sections of the Indian Penal Code, 3 as
amended by this Act, which relate to trade, property and other
marks, « the Court may order costs to be paid to the defendant
by the prosecutor or to the prosecutor by the defendant, having
regard to the information given by and the conduct of the
defendant and prosecutor respectively.

( 2 ) Such costs shall, on application to the Court, be
recoverable as if they were a fine.

■*15. No such prosecution as is mentioned in the last
foregoing section shall be commenced after the expiration of
three years next after the commission of the offence, or one
year after the first discovery thereof by the prosecutor, which-
ever expiration first happens.

Offence.— The word ‘‘offence’’ in this section means the offence
charged (4).

16. (z) The Governor General in Council may, by noti-
fication in the Gazette of India and in local official Gazettes,
issue s instructions for observance by criminal Courts in giving
effect to any of the provisions of this Act.

( 2 ) Instructions under sub-section (z) may provide, among
other matters, for the limits of variation, as regards number,
quantity, measure, gauge or weight which are to be recognized
by criminal Courts as permissible in the case of any goods.

6 17. On the sale or in the contract for the sale of any
goods to which a trade mark or mark or trade description has
been applied, the seller shall be deemed to warrant that the
mark is a genuine mark and not counterfeit or falsely used,
or that the trade description is not a false trade description
within th^ meaning of this Act, unless the contrary is expressed

t

2 Cf. the Merchandise Marks Act, 1887 [60 & 61 Viet., c. 28. s. 10

( 2 )].

3 Act VIII of 1878.

1 Cf. the Merchandise Marks Act, 1887 (60 & 61 Viet., c. 28, s. 14).

2 Act XLV of 1860. «,

3 Cf. the Merchandise Marks Act, 1887 (60 & 61 Viet.’, c. 28, s. 16).

4 Akshoy Kumar Dey % (1928), 32 C. W. N. 399 followed in Nagendra
Nath Saha , (1929) 34 C. W. N. 339.

5 For such instructions, see General Statutory Rules and Orders,

Vol. II, p. 1245. • ,

6 Cf. the Merchandise Masks Act, 1887 (60 & 51 Viet. c. 28, s. 17).

INDIAN MERCHANDISE MARKS ACT lv

in some writing signed by or on behalf of the seller and delivered
at the time of the sale or contract to and accepted by the
buyer.

1 18 . (i) Nothing in this Act shall exempt any person Savings,
from any suit or other proceeding which might, but for anything
in this Act, be brought against him.

(2) Nothing in this Act shall entitle any person to refuse
to make a complete discovery or to answer any question or
interrogatory in any suit or other proceeding, but such dis-
covery or answer shall not be admissible in evidence against
such person in any such prosecution as is mentioned in section 14.

(3) Nothing in this Act shall be construed so as to render
liable to any prosecution or punishment any servant of a master
resident in British India who in good faith acts in obedience
to the instructions of such master, and, on demand made by
or on behalf of the prosecutor, has given full information as
to his master and as to the instructions which he has received
from his master.

19 . [Date of commencement of this Act as regards unstamped
piece goods.} Rep . Act IX of i8gi. 1 2 * 4

3 19 . For the purposes of section 12 of this Act and Definition of
clause (/) of section 18 of the Sea Customs Act, 1878, ■» as amend- piece-goods,
ed by this Act, the Governor General in Council may, by s
notification in the Gazette of India, declare what classes of goods
are included in the expression ‘ piece-goods, such as are ordi-
narily by length or by the piece.'

3 20 . (r) The Governor General in Council may 5 make
rules, for the purposes of this Act, to provide, with respect to
any goods which purport or are alleged to be of uniform num-
ber, quantity, measure, gauge br weight, for the number of
samples to be selected and tested and for the selection of the
samples.

(2) With respect to any goods for the selection and testing
of samples of which provision is not made in any rules for the
time being in force under sub-section (2), the Court or officer
of customs, as the case may be, having occasion to ascertain
the number, quantity, measure, gauge or weight of the goods,
shall, by order in writing, determine the number of samples
to be selected and tested and the manner in which ffie samples
are to be selected.

1 C/. the Merchandise Marks Act, 1887 (60 & 61 Viet., c. 28, s. 19).

2 The heading to this section, namely, “ Transitory Provision "
was repealed at the same tinje by s. 2 of Act 9 of 1891.

3Ss. 10* to 22 here printed were added by the Indian Merchandise
Marks and Sea Customs Acts Amendment Act, 1891 (9 of 1891), s. 4,

General Acts, Vol. VI.

4 Act VIII of 1878. ,

6 For rules and orders in sespect of piece-goods and yarns, see General
Statutory Rules and Orders, Vol. II, p. 1?47.

Determina-
tion of
character
of goods by
sampling.

Informa-
tion as to
commission
of offences.

Punish-
ment of
abetment
in India of
acts done
out of In-
dia.

ivi THE INDIAN PENAL CODfe

(3) The average of the results of the testing in pursuance
of rules under sub-section (1) or of an order under sub-section
(2) shall be prima facie evidence of the number, quantity,
measure, gauge, or weight, as the case may be, of the goods.

(4) If a person having any claim to, or in relation to,
any goods of which samples have been selected and tested in
pursuance of rules under sub-section (1) or of an order under
sub-section (2) desires that any further samples of the goods
be selected and tested, they shall, on his written application
and on the payment in advance by him to the Court or officer
of customs, as the case may be, of such sums for defraying the
cost of the further selection and testing as the Court or officer
may from time to time require, be selected and tested to such
extent as may be permitted by rules to be made by the Governor
General in Council in this behalf or as, in the case of goods
with respect to which provision is not made in such rules the
Court or officer of customs may determine in the circumstances
to be reasonable, the samples being selected in manner prescribed
under sub-section (1), or in sub-section (2), as the case may be.

(5) The average of the results of the testing referred to
in sub-section (3) and of the further testing under sub-section
(4) shall be conclusive proof of the number, quantity, measure,
gauge or weight, as the case may be, of the goods.

(6) Rules under this section shall be made after previous
publication.

21 . An officer of the Government whose duty it is to
take part in the enforcement of this Act shall not be compelled
in any Court to say whence he got any information as to the
commission of any offence against this Act.

22 . If any person, being within British India, abets the
commission, without British India, of any act which, if com-
mitted in British India, 1 wouki under this Act, or under any
section of that part of Chapter XVIII of the Indian Penal
Code which relates to trade, property and other marks, be
an offence, he may be tried for such abetment in any place in
British India in which he may be found, and be” punished
therefor with the punishment to which he would be liable if he
had himself committed in that place the act which he abetted.

1 See s. 108A of the Indian Penal Code (Act 45 of 1860).

The Indian Press (Emergency Powers).

Act.

(ACT No. XXIII of 1931.)

[Passed by the Indian Legislature.]

Received the assent of the Governor General on the gtk October

mi-

An Act to provide against the publication of matter
inciting to or encouraging murder or violence.

WHEREAS it is expedient to provide for the better control
of the Press ; 1 It is hereby enacted as follows :

Statement of Objects and Reasons His Excellency th* r.m. U r nn .

( /„ e " cral P. ub f lishcd • a C aZ ctte Extraordinary dated the 23rd December

1930, a statement of the reasons which moved him, in exercise of the
powers conferred upon him by section 72 of the Government of Tnd a
Act, to make and promulgate an Ordinance (II of 1930) to omvirln f, ,-
the better control of the Press and of unauthorized newsiheets and news
papers. He stated that it was the policy of many newspapers consis wte
to encourage the ci vil disobedience movement anil thus to foster condition^
of disorder, and that a sectun ol the press was giving direct nr i,,S
incitement to violent ar.d revolutionary crime, ifis Exa*Hu cv tee
Governor General at the same time announced his intention of rfnJ.,' ,
the matter before the Central Legislature at the
Experience has shown that propaganda in furtherance of subversiv,'
movements and of crimes of violence is also carried on bv I,!!
leaflets pamphlets, bulletins and the like, and the Ordinance therefor ‘
included powers for the control of printing presses and of lu-
newspapers and news-sheets. The Bill is d«lS to s °fr^te * ° riSCd
conferred by the Ordinance and to give them deration ofa pteo/oT^
year with power to the Governor General in Council to extend tef
necessary for a year at a time for a further period of two years >'

rotXw ‘ maybecal,edthe I " d “» ft- Ptai-sr

( 2 ) It extends to the whole of British India inclusive of
British Baluchistan and the Sonthal Parganas. ’ S1Ve ° f

(3) It shall remain in force for one year only, but the
Governor General in Council may. by notification in the Gazette
of India, direct that it shall remain in force for a further

not exceeding one year. p uu

subfKt[,r®ntaC^ nleSS ‘. hereiSanythi " 8 r,want <" to

1. These words were substituted by s. 14 of the CrimlnTi t
A mendments Act, 1932, for the words “ against
matter inciting to or encouraging murder or violence”. P lcatl01>

Short title,
extent and
duration.

Definition.

lviii

THE INDIAN PENAL CODE

(1) " book ” includes every volume, part or division of a

volume, pamphlet and leaflet, in any language,
and every sheet of music, map, chart or plan
separately printed or lithographed ;

(2) “ document ” includes also any printing, drawing

or" photograph or other visible representation ;

(3) " High Court " means the highest Civil Court of

Appeal for any local area except in the case of
the province of Coorg where it means the High
Court of Judicature at Madras ;

(4) “ Magistrate ” means a District Magistrate or Chief

Presidency Magistrate ;

(5) *' newspaper ” means any periodical work containing

public news or comments on public news ;

(6) " news-sheet " means any document other than a

newspaper containing public news or comments
on public news or any matter described in sub-
section (1) of section 4 ;

Cl. (6). Photographs representing accused killed in Armoury Raid
Case at Chittagong have been held to be documents containing public
news and have been held to be news-sheets . 1

(7) “ press ” includes a printing-press and all machines,

implements and plant and parts thereof and all
materials used for multiplying documents ;

(8) “ printing-press ff includes all engines, machinery,

types, lithographic stones, implements, utensils
and other plant or materials used for the purpose
of printing ;

(9) “ unauthorised newspaper ” means —

(а) any newspaper in respect of which there are not

for the time being valid declarations under sec-
tion 5 of the Press and Registration of Books Act,
1867, and

(б) any newspaper in respect of which security has been

required under this Act, but has not been furnished
as required ;

•

(10) “ unauthorised ne'ws-sheet ” means any news-sheet

other than a news-sheet published by a person
authorised under section 15 to publish it ; and

(11) “ undeclared press " mea/is any press other than a

press in respect of which there is for the time being a
valid declaration under section 4 of the Press and
Registration of Books Act f 1867.

1 Jitendra Lai Banerjee* (193 3) 37 C. W. N. 990.

INDIAN PRESS (EMERGENCY POWERS) ACT lix

Control of Printing-presses and newspapers .

3 . (i) Any person keeping a printing-press who is required deposit of
to make a declaration under section 4 the Press and Registration jf e c e pers of
of Books Act, 1867 * may be required by the Magistrate before Printing-
whom the declaration is made for reasons to be recorded in presses,
writing, to deposit with the Magistrate within ten days from
the day on which the declaration is made, security to such an
amount, not being more than one thousand rupees, as the
Magistrate may in each case think fit to require, in money or
the equivalent thereof in securities of the Government of India
as the person making the deposit may choose :

Provided that if a deposit has been required under sub-
section (3) from any previous keeper of the printing-press, the
security which may be required under this sub-section may
amount to three thousand rupees.

(2) Where security required under sub-section (1) has been
deposited in respect of any printing-press, and for a period of
three months from the date of the declaration mentioned in sub-
section (1) no order is made by the Local Government under
section 4 in respect of such press, the security shall, on
application by the keeper of the Press, be refunded.

(3) Whenever it appears to the Local Government that
any printing-press kept in any place in the territories under
its administration in respect of which security under the pro-
visions of this Act has not been required, or having been re-
quired has been refunded under sub-section (2), is used for
the purpose of printing or publishing any newspaper, book or
other document containing any words, signs or visible representa-
tions of the nature described in section 4, sub-section (1) the
Local Government may, by notice in writing to the keeper
of the press starting or describing such words, signs or visible
representations, order the keeper to deposit with the Magistrate
within whose jurisdiction the press is situated security to such
an amount, not being less than five hundred or more than three
thousand rupees as the Local Government may think fit to
require, in money or the equivalent thereof in securities of the
Government of India as the person making the deposit may
choose.

(4) Such notice shall appoint a date, not bei^g sooner
than the tenth day after the date of the issue of the notice,
on or before which the deposit shall be made.

Sub-clause (I) of section 3 — provides that keeper, of printing
presses making a declaration fc>r the first time under secton 4 of the
Press and the Registration of Books Act, 1867, will be required lO deposit
security unless the Magistrate secs fit to dispense with it. By sub-
section (3) of the same section if any printing press already in operation
is used for printing objectionable matter, the keeper may be required
by Jhe Local Government to deposit security. — Statement of Objects and
Reasons. *

Power to
declare se-
curity for
press for-
feited in
certain cases

lx THE INDIAN PENAL CODE

4 . (i) Whenever it appears to the Local Government
that any printing press in respect of which any security which
has been ordered to be deposited under section 3 is used for
the purpose of printing or publishing any newspaper, book
or other document containing any words, signs or visible
representations which—'

(a) incite to or encourage, or tend to incite to or to

encourage, the commission of any offence of murder
or any cognizable offence involving violence, or

(b) directly or indirectly express approval or admiration

of any such offence, or of any person, real or
fictitious, who has committed or is alleged or
represented to have committed any such offence,

or which tend, directly or indirectly, —

(c) to seduce any officer, soldier, sailor or airman in the

military, naval or air forces of His Majesty or any
police officer from his allegiance or his duty, or

(d) to bring into hatred or contempt His Majesty or the

Government established by law in British India or
the administration of justice in British India or
any class or section of His Majesty’s subjects in
British India, or to excite disaffection towards
His Majesty or the said Government, or

(e) to put any person in fear or to cause annoyance to

him and thereby induce him to deliver to any
person any property or valuable security or to do
any act which he is not legally bound to do, or to
omit to do any act which he is legally entitled to
do, or

(/) to encourage or incite any person to interfere with
the administration of the law or with the main-
tenance of law and order, or to commit any offence,
or to refuse or defer payment of any land-revenue,
tax, rate, cess or other due or amount payable to
Government or to any local authority, or any rent
of agricultural land or anything recoverable as
arrears of or along with such rent, or

(g) to induce a public servant or a servant of a local
, authority to do any act or to forbear or delay to

do any act connected with the exercise of his public
functions or to resign his office, or

(h) to promote feelings of enmity or hatred between

different classes of Hi,s Majesty's subjects, or

(i) to prejudice the recruiting of persons to serve in any

of His Majesty’s forces, or in any police force, or
to prejudice the training,- discipline or administra-
tion of any sijch force, * "

INDIAN PRESS (EMERGENCY POWERS) ACT lxi

the Local Government may, by notice in writing to the keeper
of such printing-press, starting or describing the words, signs
or visible representations which in its opinion are of the nature
described above, —

(*) where security has been deposited, declare such
security, or any portion tftereof to be forfeited to
His Majesty, or

(ii) where security has not been deposited, declare the
press to be forfeited to His Majesty,

and may also declare all copies of such newspaper, book or
other document wherever found in British India to be forfeited
to His Majesty.

(2) After the expiry of ten days from the date of the issual
of a notice under sub-section (1) declaring a security, or any
portion thereby to be forfeited, the declaration made in respect
of such press under section 4 of the Press and Registration
of Books Act, 1867, shall be deemed to be annulled.

Explanation 1 — No expression of approval or admir-
ation made in a historical or literary work shall
be deemed to be of the nature described in this
sub-section unless it has the tendency described
in clause (a).

Explanation 2. — Comments expressing disapproba-
tion of the measures of the Government with a
view to obtain their alteration by lawful means
without exciting or attempting to excite hatred,
contempt or disaffection shall not be deemed to
be of the nature described in clause ( d ) of this
sub-section.

Explanation 3. — Comments expressing disapprobation
of the administrative or other action of the
Government without exciting or attempting to
excite hatred, contempt or disaffection, shall not
be deemed to be of the nature described in clause
(1 d ) of this sub-section.

Explanation 4. — Words pointing out, without malicious
intention and with an honest view to their re-
moval, matters which are producing or have a
tendency to produce feelings of enmity or hatred
between different classes of His Majesty's sub-
jects shall not be deemed to be words of the
nature described in clause (h) of this sub-section."

Sub- clause (1) of clause 4 sets out in detail the objectionable matter
which fall within the general cope of the Bill. Statement of Objects
and Reasons .

•

Cl. (1) (d). Justices C. C. Ghoso, Costello and Remfryheld, upon
a construction of S. 4 (1) (d) as amended by S. 63 of Ordinance No. XXIII
of 1032 which did not contain explanations to this section, that the
intention of the writer could«not be taken into account and their Lord-
shipa were concerned with the eff&ct of the words used by the writer, and

Deposit of
further se-
curity.

Power to de-
clare further
security and
publications
forfeited.

lxii THE INDIAN PENAL CODE

accordingly held that the petitioners were without any redress and dis-
missed thtir petition praying that certain orders of the Bengal Govern-
ment dated 26th May 1032 calling upon the petitioners to deposit
security to the amount of Rs. 1000 may bo set aside. C. C. Ghose, J.
pointed out that His Lordship reluctantly refused to interfere as the
explanations to S. 124-A, I.P.C., were not reproduced in S. 63 of the
Emergency Powers Ordinance Act XXI II of 1932 but in view of the fact
that the said Ordinance hl& expired, it is submitted that Ananda Bazar
Patrika case is no longer good law. r

In deciding whether the words complained of fell within S. 4 (1) of
the Act, the Court must have regard to the surrounding circumstances ;
the context in which the words were addressed ; the political atmosphere
in which the words were delivered ; and the place where they were pub-
lished, that in the circumstances obtaining in the case, although
the words complained of were clearly seditious, they did not fall
under Sec. 4 (1) of the Act. 1 2 3

The words of the Act go beyond Sec. 124-A of the Indian Penal Code
and cover the tendency of an article, and not merely the creation of
hatred or contempt or an attempt to create such feelings with which
the Code dee Is. The assertion in the articles that Government is deli-
berately abusing the powers vested in it must tend to cause hatred or
contempt against the Government in the minds of those who read these
articles. 3

5 . (i) Where the security given in respect of any press,
or any portion thereof, has been declared forfeited under
section 4 or section 6, every person making a fresh
declaration in respect of such press under section 4 of the
Press and Registration of Books Act, 1867,* shall deposit
with the Magistrate before whom such declaration is made
security to such an amount, not being less than one thousand
or more than ten thousand rupees, as the Magistrate may think
fit to require, in money or the equivalent thereof in securities
of the Government of India as the person making the deposit
may choose.

Where a portion only of the security given in respect of
such press has been declared forfeited under section 4 or section 6,
any unforfeited balance still in deposit shall be taken as part
of the amount of security required under sub-section (1).

By clause 6, if the keeper makes a fresh declaration, he may
be required to furnish a fresh security. Statement of Objects and
Reasons.

6 . (1) If, after security has been deposited under section 5,
the printing press is again used for the purpose of printing or
publishing any newspaper, book or other document containing
any words, signs or visible representations which, in the opinion
of the Local Government, are of the nature described in section
4, sub-sfection (1), the Loc^l Government may, by notice in
writing to the keeper of such printing-press, stating or de-
scribing such words, signs or visible representations, declare—

(a) the further security so deposited, or any portion
thereof, and « .

1 Ananda Bazar Patrika , (1932) 37 C. W. N. 104.

2 S. N. S. Mudaliar v. Secretary of State for India in Council, (191)
10 R. (S.P.).

3 In re Pithan Joseph , (1932) 34 Bom. L. R. 913 (S. B.), .

INDIAN PRESS (EMERGENCY POWERS) ACT lxiii

(b) all copies of such newspaper, book or other document
wherever found in British India,

to be forfeited to His Majesty.

(2) After the expiry of ten days from the issue of a notice
under sub-section (1), the declaration made in respect of such
press under section 4 of the Press and Registration pf Books
Act. 1867, shall be deemed to be annulled.

Under this section, if the printing press is again used for the
printing of objectionable matter, the enhanced security, the printing
press and all documents containing the objectionable matter may be
forfeited by order of the Local Government . — Statement of Objects and
Reasons.

7 . (1) Any publisher of a newspaper who is required to
make a declaration under section 5 of the Press and Registra-
tion of Books Act, 1867, may be required by the Magistrate
before whom the declaration is made for reasons to be recorded
in writing to deposit with the Magistrate within ten days from
the day on which the declaration is made, security to such an
amount, not being more than one thousand rupees, as the
Magistrate may in each case think fit to require, in money or
the equivalent thereof in securities of the Government of India
as the person making the deposit may choose :

Provided that if a deposit has been required under sub-
section (3) from any previous publisher of the newspaper, the
security which may be required under this sub-section may
amount to three thousand rupees.

(2) Where security required under sub-section (1) has been
deposited in respect of any newspaper, and for a period of three
months from the date of the declaration mentioned in sub-
section (1) no order is made by the Local Government under
section 8 in respect of such newspaper, the security shall on
application by the publisher of the newspaper, be refunded.

(3) Whenever it appears to the Local Government that a
newspaper published within its territories, in respect of which
security under the provisions of this Act has not been required,
or having been required has been refunded under sub-section (2)
contains any words, signs or visible representations of the nature
described in section 4, sub-section (i), the Local Government
may, by notice in writing to the publisher of such newspaper,
stating or describing such words, signs or visible representations,
require the publisher to deposit with the Magistrate within
whose jurisdiction the newspaper is published, security to such
an amount, not being less than five hundred or more than
three thousand rupees, as the Local Government may think
fit to require, in money or the equivalent thereof in securities
of the Government of India as the person making the deposit
may choose.

Sections 7 to 10 provide similar machinery for the control of
newspapers and are based oif sections 8 to 1 1 of the Indian Press Act,
I9iy . — Statement of Objects and Reasons.

Deposit of
security by
publisher of
newspaper.

lxiv

THE INDIAN PENAL CODE

Cl. (3). Where a newspaper published as news an accusation against
a Police Inspector, a Sub-Inspector and some constables that they had
arrested some Satyagrahis immediately on their arrival at the local
Congress Office, led them out of the town and beat them severely, but
there was no suggestion that the administration approved of such mis-
conduct or that it was part of a deliberate policy of repression and indeed
there was no comment of any sort, held, (i) that in the circumstances of
the case, the report did not come unde r either Cl. ( d ) or Cl. (h) of S. 4 (1)
of this Aet as amended by S. 63 of Ordinance No. II of 1932 read with
S. 2 of Ordinance No. VTII of 1932 (no longer in force) so as to warrant
a demand of security under S. 7 (3) of the Press Act.*

(4) Such notice shall appoint a date, not being sooner
than the tenth day after the date of the ssue of the notice,
on or before which the deposit shall be made.

Power to de- 8. (r) If any newspaper in respect of which any security
dare secu- has been ordered to be deposited under section 7 contains any
In certafri words, signs or visible representations which, in the opinion of
cases. ' the Local Government, are of the nature described in section 4,
sub-section (1), the Local Government may, by notice in writing
to the publisher of such newspaper, stating or describing such
words, signs or visible representations, —

(a) where the security has been deposited, declare such

security, or any portion thereof, to be forfeited to
His Majesty, or

(b) where the security has not been deposited, annul

the declaration made by the publisher of such
newspaper under section 5 of the Press and Re-
gistration of Books Act, 1867,

and may also declare all copies of such newspaper, wherever
found in British India, to be forfeited to His Majesty.

(2) After the expiry of ten days from the date of the issue
of a notice under sub-section (1) declaring a security, or any
portion thereof, to be forfeited, the declaration made by the
publisher of such newspaper under section 5 of the Press and
Registration of Books Act, 1867, shall be deemed to be an
annulled. *,

Deposit of
further se-
curity.

9 . (1) Where the security given in respect of any newspaper,
or any portion thereof, is declared forfeited under section 8 or
section 10, any person making a fresh declaration under section
5 of the Press and Registration of Books Act, 1867, as publisher
of such newspaper, or any other newspaper, which is the same
in substance as the said newspaper, shall deposit with the
Magistrate before whom the declaration is made security to
such an amount, not being less than one thousand or more than
ten thousand rupees, as the Magistrate may think fit to require,
in money or the equivalent -thereof in securities of the Govern-
ment of India as the person making the deposit may choose.

(2) Where a portion only of the security given in respect
of such newspaper has been declared forfeited under section 8
or section 10, any unforfeited balahce still in deposit shall be
taken as part of the amount of security required under sub-
section (1).

In the matter of Janasakti, (1832) 36 C, W. N. 862 (S.B.]

INDIAN PRESS (EMERGENCY POWERS) ACT lxY

(2) Where any printing press is used in contravention
of sub-section (1), the Local Government may, by notice in
writing to the keeper thereof declare the press to be forfeited
to His Majesty.

10 . (1) If after security has been deposited under section 9,
the newspaper again contains any words, signs or visible
representations which in the opinion of the Local Government,
are of the nature described in section 4, sub-section (1), the
Local Government may, by notice in writing to the publisher
of such newspaper, stating or describing such words, signs or
visible representations, declare —

(a) the further security so deposited, or any portion

thereof, and

(b) all copies of such newspaper wherever found in

British India, to be forfeited to His Majesty.

(2) After the expiry of ten days from the date of the issue
of a notice under sub-section (1), the declaration made by the
publisher of such newspaper under section 5 of the Press and
Registration of Books Act, 1867, shall be deemed to be annulled
and no further declaration in respect of such newspaper shall
be made save with the permission of the Local Government.

When a second order of forfeiture has been passed against
the publisher of a newspaper, sub-clause (2) of clause 10 provides that
no further declaration under the Press and Registration of Books Act 1867,
may be made in respect of the newspaper without the permission of the
Local Government . — Statement of Objects and Reasons.

11 . (1) Whoever keeps in his possession a press which is
used for the printing of books or papers without making a
deposit under section 3 or section 5, as required by the Local
Government or the Magistrate as the case may be, shall on
conviction by a Magistrate be liable to the penalty to which he
would be liable if he had failed to make the declaration
prescribed by section 4 of the PrefSs and Registration of Books
Act, 1867.

(2) Whoever publishes any newspaper without making a
deposit under section 7 or section 9, as required by the Local
Government or the Magistrate as the case may be, or publishes
such newspaper knowing that such security has not been
deposited, shall on conviction by a Magistrate be liable to the
penalty to which he would be liable if he had failed to make
the declaration prescribed by section 5 of the Press and Re-
gistration of Books Act, 1867. f •

12 . (i) Where a deposit is required from the keeper of a
printing press under section 3, such press shall not be used
for the printing or publishing of any newspaper, book or
other documents after the expiry of the time allowed to
make the deposit until the deposit has been made, and where
a deposit is required from the keeper of a printing press under
section 5, such press shall, not be so used until the deposit
has been made,

*

Power to de-
clare further
security and
newspapers
forfeited.

Penalty for
keeping
press or pub-
lished news-
paper with-
out making
deposit.

Consequen-
ces of failure
to deposit
security as
required .

Return of
deposited se-
curity in
certain cases

Issue of
search war-
rant.

Authorisa-
tion of per-
sons to pub*
lish news-
sheets.

lxvi THE INDIAN PENAL CQDE

(2) Where any printing press is used in contravention
of sub-section (1), the Local Government may by notice in
writing to the keeper thereof declare the press to be forfeited
to His Majesty.

(3) Where a deposit is required from the publisher of a
"newspaper under section 7 and the deposit is not made within
the time allowed the declaration made by the publisher under
section 5 of the Press and Registration of Books Act, 1867,
shall be deemed to be annulled.

Sections 11 and 12 provide penalty for keeping or using a printing
Press and for publishing a newspaper when security has been required
but not deposited . — Statement of Objects and Reasons.

13 . Where any person has deposited any security under
this Act, and ceases to keep the press in respect of which
such security was deposited or, being a publisher, makes a
declaration under section 8 of the Press and Registration of
Books Act, 1867, he may apply to the Magistrate within whose
jurisdiction such Press is situate for the return of the said
security ; and thereupon such security shall, upon proof to the
satisfaction of the Magistrate and subject to the provisions
hereinbefore contained, be returned to such person.

14 . Where any printing-press is, or any copies of any
newspaper, book or other documents are, declared forfeited to
His Majesty under section 4, section, 6, section 8, section 10 or
section 12, the Local Government may direct a Magistrate
to issue a warrant empowering any police-officer, not below
the rank of Sub-Inspector, to seize and detain any property
ordered to be forfeited and to enter upon and search for such
property in any premises —

(») where any such property may be or may be
reasonably suspected to be, or

(«) where any copy of such newspaper, book document
is kept for sale, distribution, publication or public
exhibition or is reasonably suspected to be so kept.

Unauthorised news-sheets and newspapers.

15 . (1) The Magistrate may, by order in writing and
subject to such conditions „as he may think fit to impose,
authorise any person by name to publish a news-sheet, or to
publish news-sheets from time to time.

(2) A copy of an order undjr sub-section (1) shall be
furnished to the person thereby authorised.

(3) The magistrate may at any time revoke an order made

by him under sub-section (i), • ■ ■ *

INDIAN PRESS (EMERGENCY POWERS) ACT lxvii

16 . (i) Any police-officer, or any other person empowered
in this behalf by the Local Government, may seize any
unauthorised news-sheet or unauthorised newspaper, wherever
found.

(2) Any Presidency Magistrate, District Magistrate, sub*
divisional Magistrate or Magistrate of the first class may by
warrant authorise any police-officer not below the rank of Sub-
Inspector to enter upon and search any place where any stock
of unauthorised news-sheets or unauthorised newspapers may
be or may be reasonably suspected to be, and such police-
officer may seize any documents found in such place which,
in his opinion, are unauthorised news-sheets or unauthorised
newspapers.

(3) All documents seized under sub-section (1) shall be
produced as soon as may be before a Presidency Magistrate,
District Magistrate, Sub-divisional Magistrate or Magistrate
of the first class and all documents seized under sub-section (2)
shall be produced as soon as may be before the Court of the
Magistrate who issued the warrant.

(4) If, in the opinion of such Magistrate or Court, any of
such documents are unauthorised news-sheets or unauthorised
newspapers, the Magistrate or Court may cause them to be
destroyed. If in the opinion of such Magistrate or Court any
of such document are not unathorised new-sheets or un-
authorised newspapers, such Magistrate or Court shall dispose
of them in the manner provided in sections 523, 524 and 525
of the Code of Criminal Procedure, 1898.

17 . (1) Where a Presidency Magistrate, District Magistrate

or Subdivisional Magistrate has reason to believe that an
unauthorised news-sheet or unauthorised newspaper is being
produced from an undeclared press within the limits of his
jurisdiction, he may by warrant authorise any police-officer not
below the rank of Sub-Inspector to enter upon and search any
place wherein such undeclared press may be or may be reason-
ably suspected to be and if in the opinion of such police-officer,
any press found in such place is an undeclared press and is
used to produce an unauthorised news-sheets or unauthorised
newspaper, he may seize such press and any documents found
in the place which in his opinion are unauthorised news-sheets
or unauthorised newspapers. t •

(2) The police-officer shall make a report of the search to
the Court which issued the warrant and shall produce before
such Court, as soon as m$y be, all property seized :

Provided that where any press which has been seized cannot
be readily removed, the .police-officer may produce before the
Court only such parts thereof as he may think fit,

Power to
seize and
destroy un-
authorised
news-sheets
and news-
papers.

Power to
seize and
forfeit un-
declared
presses pro-
ducing un-
authorised
news-sheets
and news-
paper.

lxviii

THE INDIAN PENAL £ODE

Penalty for
disseminat-
ing unautho-
rised news-
sheets and
newspapers.

Power to
declare cer-
tain publica-
tions forfeit-
ed and to
issue search
warrants for
same.

(3) If such Court, after such inquiry as it may deem
requisite, is of opinion that a press seized under this section is
an undeclared press which is used to produce an unauthorised .
news-sheet or unauthorised newspaper, . it may by order in
writing, declare the press to be forfeited to His Majesty. If,
after such inquiry, the Court is not of such opinion, it shall
dispose of the press in the manner provided in sections 523,
524 ancr'525 of the Code of Criminal Procedure, 1898.

(4) The Court shall deal with documents produced before
it under this section in the manner provided in sub-section (4)
of section 16.

Cl. (1) A (2). Whan a search is made and a press seized by the Police
without a soarch warrant as required by S. 17 (1) of this Act, held that the
search and seizure are illegal and no order can be made under s. 17 (3)
forfeiting to His Majesty the press so seized.i

18 . (1) Whoever makes, sells, distributes, publishes or
publicly exhibits or keeps for sale, distribution or publica-
tion any unauthorised news-sheets or newspaper, shall be
punishable with imprisonment which may extend to six
months, or with fine or with both.

(2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1898, any offence punishable under sub-
section (1), and any abetment of any such offence, shall be
cognizable.

Sections 15 to 18 are supplementary to sections 3 to 12,
and are intended to defeat various ways of evading these sections as by
the use of duplicating devices which are not printing-presses by the broad
casting of leaflets which are not newspapers and by the publication of
newspapers in respect of which no declaration is made under the Press
and Registration of Books Act 1867. The Procedure in these cases is
more summary. — Statement of Objects and Reasons.

Cl. (1). Whether photographs representing the accused in the course
of the Chittagong Armoury Raid case were naws-sheetls as defined in
S. 2 (6) Panckridge and Patterson J.J. while not disposed to hold that
all the information was news, hM, that such information was public
news if it concerned a matter of public and topical interest, as con-
trasted with pure historical interest.

Special provisions relating to fie seizure of certain documents.

19 . Where any newspaper, book or other document
wherever made appears to the Local Government to contain
any words, signs or visible representations of the nature
described in section 4, sub-section (1), the Local Government
may, by* notification in the local official Gazette, stating the
grounds of its opinion, declare every copy of the issue of the
newspaper and every copy of such book or other document
to be forfeited to His Majesty, and thereupon any police-officer
may seize the same wherever found in British India, and any
Magistrate may by warrant authorise any police-officer not
below the rank of Sub-Inspector to enter upon and search for

1 Nrisinha Ckander Ghose , (1933) 37 6. W. N. 821.

2 Jitendra Lai Bannerjee^ (1933) 87 (C, W. N»)990.

INDIAN PRESS (EMERGENCY POWERS) ACT lxix

the same in any premises where any copy of such issue or any
sttch book or other document may be or may be reasonably
suspected to be.

20 . The Chief Customs-officer or other officer authorised
by the Local Government in this behalf may detain any package
brought whether by land, sea or air into British India which
he suspects to contain any newspapers, books or other docu-
ments of the nature described in section 4, sub-section (1),
shall forthwith forward copies of any newspapers, and
books or other documents found therein to such officer as the
Local Government may appoint in this behalf to be disposed
of in such manner as the Local Government may direct.

21 . No unauthorised news-sheets or unauthorised news-
paper shall be transmitted by post.

22 . Any officer in charge of a post office or authorised
by the Post-Master General in this behalf may detain any
article other than a letter or parcel in course of transmission
by post, which he suspects to contain —

(a) any newspaper, book or other document containing

words, signs or visible representations of the nature
described in section 4, sub-section 1, or

(b) any unauthorised news-sheet or unauthorised news-

paper,

and shall deliver all such articles to such officer as the Local
Government may appoint in this behalf to be disposed of in
such manner as the Local Government may direct.

Powers of High Court.

*»

23 . (1) The keeper of a printing-press who has been
ordered to deposit security under sub-section (3) of section
3, or the publisher of a newspaper who has been ordered to
deposit security under sub-section (3) of section 7, or any
person having an interest in any property in respect of which
an order of forfeiture has been made under section 4, section
6, section 8, section 10, or section 19 may, within two months
from the date of such order apply to the High Court for the
local area in which such order was made, to set aside such
order and the High Court shall decide if the newspaper, book
or other document in respect of which the order was made did
or did not contain any words, signs or visible representations
of the nature described in section 4, sub-section (1).

(2) The keeper of a printing-press in respect of which an
order of forfeiture has been made under sub-section (2) of sec-
tion 12 on the ground that it has been used in contravention
of sub-section (1) of that section may apply to such High
Court to set aside the order on the ground that the press was
not/so used.

Power to
detain pack-
ages con-
taining
certain pub-
lications
when im-
ported into
British
India.

Prohibition
of transmis-
sion by post
of certain
documents.

Power to
detain arti-
cles being
transmitted
by post.

Application
to High
Court to set
aside order
of forfeiture

THE INDIAN PENAL CODE

Hearing
by Special
Bench.

Order of
Special
Bench set-
ting aside
forfeiture.

Evidence to
prove nature
or tendency
of news-
papers.

Procedure in
High Court.

Service of
notices.

lXx

24 . Every such application shall be heard and determined
by a Special Bench of the High Court composed of thret
Judges or, where the High Court consists of less than three
Judges, of all the Judges.

25 . If it appears to the Special Bench on an application
under sub-section (i) of section 23 that the words, signs or
representations contained in the newspaper, book or other
document in respect of which the order in question was made
were not of the nature described in section 4, sub-section (1)
the Special Bench shall set aside the order.

(2) If it appears to the Special Bench on an application
under sub-section (2) of section 23 that the printing-press was
not used in contravention of sub-section (1) of section 12, it
shall set aside the order of forfeiture.

(3) Where there is a difference of opinion among the Judges
forming the Special Bench, the decision shall be in accordance
with the opinion of the majority (if any) of those Judges.

(4) Where there is no such majority which concurs in set-
ting aside the order in question, the order shall stand.

26 . On the hearing of an application under sub-section (1)
of section 23 with reference to any newspaper, any copy of
such newspaper published after the commencement of this
Act may be given in evidence in aid of the proof of the nature
or tendency of the words, signs or visible representations
contained in such newspaper, in respect of which the order
was made.

27 . Every High Court shall, as soon as conveniently may
be, frame rules to regulate *the procedure in the case of
such applications, the amount of the costs thereof and the
execution of orders passed thereon, and until such rules are
framed the practice of such Court in proceedings other than
suits and appeals shall apply, so far as may be practicable,
to such applications.

Sections 23 to 27 reproduce sections 17 to 21 to the Indian
Press Act, 1010, and provide for a reference to the High Court in case of
forfeiture ordered under clauses 4, 6 S, 10 and 19. ^-Statement of Objects
and Reason $.

Supplemental.

28 . Every notice under this Act shall be sent to a Magis-
trate, who shall cause it to be served in the manner provided
for the service of summonses under the Code of Criminal
Procedure, 1898 : *

1 V of 1898.

INDIAN PRESS (EMERGENCY POWERS) ACT lxxi

Provided that if service in such manner cannot by the
exercise of due diligence be effected, the serving officer shall,
where the notice is directed to the keeper of a press, affix a
copy thereof to some conspicuous part of the place where the
press is situate, as described in the keepers declaration under
section 4 of the Press and Registration of the Books Act, 1867/
and where the notice is directed to the publisher of a newspaper,
to some conspicuous part of the premises where the publication
of such newspaper is conducted as given in the publisher's
declaration under section 5 of the said Act ; and thereupon the
notice shall be deemed to have been duly served.

29 . Every warrant issued under this Act shall, so far as
it relates to a search, be executed in the manner provided for
the execution of search warrants under the Code of Criminal
Procedure, 1898. 2

30 . Every declaration of forfeiture purporting to be made
under this Act shall, as against all persons, be conclusive
evidence that the forfeiture therein referred to has taken place,
and no proceeding purporting to be taken under this Act shall
be called in question by any Court, except the High Court on
application under section 23, and no civil or criminal proceeding,
except as provided by this Act, shall be instituted against any
person for anything done or in good faith intended to be done
under this Act.

See the case of Amrita Bazar Patrika Press Ltd., (1919) 23 C. W. N.
1057 ; decisions under s. 17 of Indian Press Act (1 of 1910).

31 . Nothing herein contained shall be deemed to prevent
any person from being prosecuted under any other law for any
act or omission which constitutes an offence against this Act.

32 . So long as this Act remains in force, all declarations
required to be made under section 4, section 5, section 8 and
section 8A of the Press and Registration of Books Act, 1867,
shall be made in a Presidency own before the Chief Presidency
Magistrate, and elsewhere before the District Magistrate.

Conduct of
searches.

J urisdiction
barred.

Operation of
other laws
not barred.

Declarations
under Act
XXV of 1867
to be made
before cer-
tain Magis-
trate.

1 XXV of 1867,

2 V of 1898.

Short title
and extent

The Indian Criminal Law Amendment Act.

(ACT No. XIV OF 1908.)

(nth December , 1908).

An Act to provide for the more speedy tried of certain offences,
and for the prohibition of associations dangerous to the
public peace.

W HEREAS it is expedient to provide for the more speedy
trial of certain offences, and for the prohibition of associations
dangerous to the public peace ; It is hereby enacted as follows : —

1. (1) This Act may be called the Indian Criminal Law
Amendment Act, 1908.

(2) It extends to the Provinces of Bengal and of Eastern
Bengal and Assam ; but the 2 [Local Government of any other
province] may, at any time, by 3 notification in the * [official
Gazette], extend the whole or any part thereof to sfthat
Province].

6(3) ***** *

1 For Statement of Objects and Reasons, see Gazette of India, 1908,
Ft. IV, p. 203, and for Proceedings in Council, see ibid , Pt. VI, p. 158.

2 These words were substituted for the words “ Governor General in
Council " by s. 2 and Sch. I of the Devolution Act, 1920 (XXXVIII of
1920).

3 The Act has been extended to the Presidency of Bombay, see
Gazette of India, Extraordinary, dated 4th January, 1910 ; to the Presi-
dency of Madras, the U. P. of Agra and Oudh, the Punjab and the Central
Provinces, see Gazette of India, Extraordinary, dated 13th January, 1910,
and ibid , Pt. I, p. 95.

For notification extending Pt. II of this Act to the province of Delhi,
see Gazette of India, Extraordinary, dated 9th December, 1920 ; to
N.-W. Frontier Province, see N.-W. Frontier Province Gazette Extra-
ordinary, dated 17th December, 1921.

The Act has been declared in force in Sonthal Parganas by notifica-
tion under s. 3 (3) (a) of the Sonthal Parganas Settlement Regulation,
1872 (III of 1872) B. & O. Code, see Calcutta Gazette, 1909, Pt. I,
p. 649. **

4 These words were substituted for the words " Gazette of India M by
s# 2 and Sch. I of the Devolution Act, 1920 (XXXVIII of 1920).

5 These words were substituted for the words '* any other Province ”
by ibid*

6 Sub-section (3) of section 1 was repealed by s. 3 of the Indian
Criminal Law Amendment Repealing Act, 1922 (V of 1922).

CRIMINAL LAW AMENDMENT ACT ixxiii
PART I.

Special Procedure.

[Repealed by s. 3 of Act V of 1922.]

PART II.

Unlawful Associations.

15 . In this Part —

(1) “association " means any combination or body of
persons, whether the same be known by any distinctive name
or not ; and

(2) “ unlawful association ” means an association —

(a) which encourages or aids persons to commit acts of

violence or intimidation or of which the members
habitually commit such acts, or

(b) which has been declared to be unlawful by the

'[Local Government] under the powers hereby
conferred.

16 . (1) If the '[Local Government] is of opinion that
any association interferes or has for its object interference with
the administration of the law or with the maintenance of law
and order, or that it constitutes a danger to the public peace,
the '[Local Government] may, by notification in the official
Gazette, declare such association to be unlawful.

“ ( 2 ) The Governor General in Council, if satisfied to the
like effect, may, by notification in the Gazette of
India, declare an association to be an unlawful
association, and thereupon such association shall
be, so long as the declaration remains in force, an
unlawful association for the purposes of this Act
throughout the whole of British India.

(3) An offence under sub-section (1) shall be cognizable
by the police, and, notwithstanding anything
contained in the Code of Criminal Procedure, 1898,
shall be non-bailable.

17 . (1) Whoever is a member of an unlawful association,
or takes part in meetings o. any such association, or contributes
or receives or solicits any contribution for the purpose of any
such association, or in any way assists the operations of any such
association, shall be punished with imprisonment for a term
which may extend to six months, or with fine, or with both.

(2) Whoever manages or assists in the management of an
unlawful association, or promotes or assists in promoting a
meeting of any such association, or of any members there of
such members, shall be punished with imprisonment for a term
which may extend to three years, or with fine, or with both.

1 Sub-section (1) numbered and sub-section (2) added bys. 11 of the
Criminal Law Amendment Act, 1932.

2 Sub-section (3) was inserted by s. 17 (1) of Criminal Law Amend-
ment Act, 1932.

3 These words were substituted for the words " Governor General in
Council !’ by s. 2 and Sch. I of the Devolution Act, 1920 (XXXVIII of
1920). V

Definitions.

J'ower to
declare
association
unlawful.

Penalties.

Ixxiv

THE INDIAN PENAL CODE

It is not a matter of presumption that the law is that once an asso-
ciation has been declared unlawful, any person who was a member while
it continued lawful, becomes guilty, but that there must be evidences of
continuing membership. i "*

The publication by a newspaper of a programme of activities of an
unlawful association amounts to assisting in die operations of such asso-
ciation within the meaning of S. 17 (1 ). 2

For the purpose of s. 17 (1) there must be such a connection between
the acts of the accused and the operations of the unlawful association that
an intention to assist the operations of the unlawful association that an
intention to assist the operations of such association may be properly in-
ferred. 3

The mere reproduction in a newspaper of a harmless criticism, upon
a letter which has been generally circulated, appearing in the Congress
Bulletin , published by an unlawful association, does not amount to assist-
ing the operations of an unlawful association within the meaning of
s. 17 (1).4

S. 17 ( 1 ) does not make the advocating bf boycott, the shouting out
of slogans and the carrying of Congress flags an offence. Doing such
things does not necessarily amount to assisting the operations of an
unlawful association, though there is identity of objects. There must be
some kind of connection proved between the person and the unlawful
association. The words * assisting the operations of an association * would
become meaningless unless the operations of the association are in the
person’s mind and an intention to assist them is also there. Such
intention to assist the operations of that association must be inferred
from some unambiguous overt act.5

The mere display of a Congress flag over a shop and a refusal to take
it down at the request of the police does not amount to 4 assisting the
operations of an unlawful association ' and is not an offence under s. 17 ( 1). 6

An offence under s. 117 of the Indian Penal Code, read with s. 17 (1)
ol the Criminal Law Amendment Act, can be tried as a summons case,
if the sentence imposed does not exceed imprisonment for six months . 7

S. 17 (2). C. C. Ghose, Acting Chief Justice and Mallik J., held that
the hoisting of what is called the national flag on the Independence Day
celebration (20th January) was not an offence and that the refusal to take
down the flag at the request of the police was not assisting in the manage-
ment of an unlawful association when there was nothing to show that
they were either members of an unlawful association or had any knowledge
of the circular issued by such association, declaring 20 th January as the
Independence Day . 8

17-A. ( 1 ) The Local Government may, by notification in
the local official Gazette, notify any place which in its opinion is
used for the purposes of an unlawful association.

Explanation . — For the purposes of this section ‘ place '
includes a house or building, or part thereof or a tent or vessel.

( 2 ) The District Magistrate, or in a Presidency-town the
Commissioner of Police, or any officer authorised in this behalf
in writing by the District Magistrate or Commissioner of Police,
as the cp.se may be, may thereupon take possession of the

p

1 Dharmanand Kusambi, (1930) 33 Bom. L. R. 333, following Shripad,
(1930) 33 Bom. L. R. 90.

2 Shorab Palanji Papadia, (1930) 33 Bom. L. R. 314.

3 Sangubia Ramdas Khanji, (1930) 33 Bom. L. R. 319. See (Frobhat
Ferry Case) M. S. Adhikari , (1930) 33 Bom. L. R. 325. ,

4 Sadanand, (1981) 33 Bom. L. R. 652.

5 Iswardu, (1932) M. W. N. 1265.

6 Ram Prosad, (1932) 34 Cr. L. J. 22.

7 Narasinha Narayan Chandur, (1931) 33 Bom. L. R. 353 : A. I. R.

(1931) Bom. 199. *

8 Jogendra Mohan Choudkury, (1933) 37 C. W. N. 992.

CRIMINAL LAW AMENDMENT ACT lxxV

notified place and evict therefrom any person fotind therein,
and shall forthwith make a report of the taking possession to
the Local Government :

Provided that where such place contains any apartment
occupied by women or children, reasonable time and facilities
shall be afforded for their withdrawal with the least possible
inconvenience.

(3) A notified place whereof possession is taken under sub-
section (2) shall be deemed to remain in the possession of
Government so long as the notification under sub-section (1)
in respect thereof remains in force.

17-B. (1) The District Magistrate, Commissioner of Police Movea t>i e
or officer taking possession of a notified place shall also take foundin a
possession of all moveable property found therein, and shall notified
make a list thereof in the presence of two respectable witnesses, place.

(2) If, in the opinion of the District Magistrate, or in a
Presidency-town the Commissioner of Police, any articles
specified in the list are or may be used for the purposes of the
unlawful association, he may proceed subject to the provisions
hereafter contained in this section to order such articles to be
forfeited to His Majesty.

(3) All other articles specified in the list shall be delivered
to the person whom he considers to be entitled to possession
thereof, or, if no such person is found, shall be disposed of in
such manner as the District Magistrate or Commissioner of
Police, as the case may be, may direct.

(4) The District Magistrate or Commissioner of Police shall
publish, as nearly as may be in the manner provided in section
87 of the Code of Criminal Procedure, 1898, for the publication
of a proclamation, a notice specifying the articles which it is
proposed to forfeit and calling upon any person claiming that
any article is not liable to forfeiture to submit in writing within
fifteen days any representation he desires to make against the
forfeiture of the article.

(5) Where any such representation is accepted by the
District Magistrate or Commissioner of Police, he shall deal with
the article concerned in accordance with the provisions of sub-
section (3).

(6) Where any such representation is rejected, the
representation, with the decision thereon, shall be forwarded to
the District Judge, in the case of a decision by a District
Magistrate, or, to the Chief Judge of the Small Cause Court, in
the case of a decision by the Commissioner of Police, and no
order of forfeiture shall be made until the District .Judge or
Chief Judge of the Small Cause C6urt, as the case may be, has
adjudicated upon the representation. Where the decision is
not confirmed the articles shall be dealt within accordance with
the provisions of sub-section (3).

(7) In making an adjudication under sub-section (6) the
procedure to be followed shall be the procedure laid down in the

Code of Criminal Procedure, 1908, for the investigation of #

claims so far as it can be made to apply, and the decision of the *

District Judge or Chief Judge of the # Small Cause Court, as the
case may be final.

Ixxvi

THE INDIAN PENAL CODE

(8) If the article seized is livestock or is of a perishable
nature, the District Magistrate or Commissioner of Police may,
if he thinks it expedient, order the immediate sale thereof, and
the proceeds of the sale shall be disposed of in the manner herein
provided for the disposal of other articles.

Trespass 17 -C. Any person who enters or remains upon a notified

upon notified place without the permission of the District Magistrate, or of an
place. officer authorised by him in this behalf, shall be deemed to

commit criminal trespass.

The relin-
quishment
of property.

Power to
forfeit
funds of an
unlawful
association.

I 7 -D. Before a notification under sub-section (i) of section
17A is cancelled, the Local Government shall give such general
or special directions as it may deem requisite regulating the
relinquishment by Government of possession of notified places.

17 -E. (1) Where the Local Government is satisfied, after
such inquiry as it may thing fit, that any monies, securities or
credits are being used or are intended to be used for the purposes
of an unlawful association, the Local Government may, by order
in writing, declare such monies, securities or credits to be
forfeited to His Majesty.

(2) A copy of an order under sub-section (1) may be served
on the person having custody of the monies, securities or credits,
and on the service of such copy such person shall pay or deliver
the monies, securities or credits to the order of the Local
Government :

Provided that, in the case of monies or securities, a copy of
the order may be endorsed for execution to such officer as the
Local Government may select, and such officer shall have power
to enter upon and search for such monies and securities in any
premises where they may reasonably be suspected to be, and to
seize the same.

(3) Before an order of forfeiture is made under sub-section
(1) the Local Government shall give written notice to the person
(if any) in whose custody the, monies, securities or credits are
found of its intention to forfeit, and any person aggrieved
thereby may within fifteen days from the issue of such notice
file an application to the District Judge in a District, or to the
Chief Judge of the Small Cause Court in a Presidency-town,
to establish that the monies, securities or credits or any of
them are not liable to forfeiture, and if any such application is
made, no order of forfeiture shall be passed in respect of the
monies, securities or credits concerned until such application has
been disposed of, and unless the District Judge or Chief Judge of
the small , Cause Court has decided that the monies, securities
or credits are liable to forfeitufe.

(4) In disposing of an application under sub-section (3)
the procedure to be followed shall be the procedure laid down
in the Code of Civil Procedure, 1908, for the investigation of
claims so far as it can be made to sfpply, and the- decision of
the District Judge or Chief Judge of the Small Cause Court, as
the case may be, shall be final.

(5) Where the Local Government has reason to believe that
any person has custody of any monies, securities or credits

CRIMINAL LAW AMENDMENT ACT lxXVii

which are being used or are intended to be used for the purposes
of an unlawful association, the Local Government may, by order
in writing, prohibit shch person from paying, delivering,
transfering or otherwise dealing in any manner whatsoever
with the same, save in accordance with the written orders of the
Local Government. A copy of such order shall be served upon
the person to whom it is directed.

(6) The Local Government may endorse a copy of an order
under sub-section (3) for investigation to any officer it may
select, and such copy shall be warrant whereunder such officer
may enter upon any premises of the person to whom the order
is directed, examine the books of such person, search for monies
and securities, and make inquiries from such person, or any
officer, agent or servant of such person, touching the origin of
and dealings in any monies, securities or credits which the
investigating officer may suspect are being used or are intended
to be used for the purposes of an unlawful association.

(7) A copy of an order under this section may be served in
the manner provided in the Code of Criminal Procedure, 1898,
for the service of a summons, or, where the person to be served
is a corporation, company, bank or association of persons, it
may be served on any secretary, director or other officer or
person concerned with the management thereof, or by leaving
it or sending it by post addressed to the corporation, company,
bank or association at its registered office, or, where there is no
registered office, at the place where it carries on business.

(8) Where an order of forfeiture is made under sub-section

(1) in respect of any monies, securities or credits in respect of
which a prohibitory order has been made under sub-section (3),
such order of forfeiture shall have effect from the date of the
prohibitory order, and the person to whom the prohibitory
order was directed shall pay or deliver the whole of the monies,
securities, or credits forfeited, to the order of the Local Govern-
ment. ,

(9) Where any person liable under this section to pay or
deliver any monies, securities, or credits to the order of the
Local Government refuses or fails to comply with any direction
of the Local Government in this behalf, the Local Government
may recover from such person, as arrears of land-revenue or
asafine, the amount of such monies or credits or the market
value of such securities.

(10) In this section, * security ' includes a document
whereby any person acknowledges that he is under a legal
liability to pay money, or whereunder any person obtains a
legal right to the payment of money ; and the market value
of any security means the value as fixed by any officer or person
deputed by the Local Government in this behalf.

(11) Except so far as'is necessary for the purposes of any

proceeding under this section, no information obtained in the
course of any investigation made under sub-section (6) shall
be divulged by any officer of. Government, without the consent
of the Local Government. •

Jurisdiction

inferred.

Continuance
of associa-
tion.

Ixxviii THE INDIAN PENAL CODE

17 -F. Every report of the taking possession of property
and every declaration of forfeiture made, or purporting to be
made under this Act, shall, as against all persons, be conclusive
proof that the property specified therein has been taken posses-
sion of by Government or has been forfeited, as the case may
be, and save as provided in sections 17B and 17E no proceeding
purporting to be taken under section 17A, 17B, 17C, 17D or
17E shall be called in question by any Court, and no civil or
criminal proceeding shall be instituted against any person for
anything in good faith done or intended to be done under the
said sections or against Government or any person acting on
behalf of or by authority of Government for any loss or damage
caused to or in respect of any property whereof possession
has been taken by Government under this Act."

18 . An association shall not be deemed to have ceased
to exist by reason only of any formal act of dissolution or
change of title, but shall be deemed to continue so long as any
actual combination for the purposes of such association con-
tinues between any members thereof.

THE SCHEDULE
[Repealed s. 3 of Act V of 1922 .]

The Criminal Law Amendment Act

(ACT No. XXIII of 1932.)

( Received the assent of the Governor General qn the igth
December, 1932.)

An Act to supplement the Criminal Law.

\1THEREAS it is expedient to supplement the Criminal Law
* * and to that end to amend the Indian Press (Emergency
Powers) Act, 1931, and further to amend temporarily the Indian
Criminal Law Amendment Act, 1908, for the purposes hereinafter
appearing ;

It is hereby enacted as follows : —

1. (1) This Act may be called the Criminal Law Amendment
Act, 1932.

(2) It extends to the whole of British India, including British
Baluchistan and the Sonthal Parganas.

(3) It shall remain in force for three years from its
commencement.

(4) The whole of the Act except section 4 and section 7 shall
come into force at once, and the Local Government may, by
notification in the local official Gazette, direct that section 4 or
section 7 shall come into force in any area on such date as may
be specified in the notification.

2 . Whoever wilfully dissuades or attempts to dissuade
the public or any person from entering the Military, Naval, Air
or Police service of His Majesty shall be punished with im-
prisonment for a term which may extend to one year, or with
fine, or with both.

Exception 1. — This provision does not extend to comments
on or criticisms of the policy of Government in connection with
the Military, Naval, Air or Police service made in good faith and
without any intention to dissuade from enlistment.

•

Exception 2. — This provision does not extend to the case in
which advice is given in good faith for the benefit of the indi-
vidual to whom it is given or for the benefit of any member of
his family or of any of his dependants.

3 . Whoever induces or attempts to induce any public
servant to fail in his duty as such servant shall be punished
with imprisonment for a term which may extend to one year, or
with fine, or with both. v .

Short title,
extent,
duration and
commence-
ment.

Dissuasion

from

enlistment.

Tampering
with public
servants

XLV of
1800.

VII of 1920.

Boycotting
a public
servant.

Dissemina-
tion of
contents of
proscribed
document.

V of 1898.
XXIII of
1931.

Dissemina-
tion of false
rumours.

lxxx THE INDIAN PENAL CODE

Explanation.— ¥ ox the purposes of this section, a public
servant denotes a public servant as defined in section* 21 of the
Indian Penal Code, a servant of a lofial authority or railway
administration, a village choukidar, arid an employee of a public
Utility service as defined in section 2 of the Trade Disputes Act,
1929.

4 . (1) Whoever, with intent to harass any public servant in
the discharge of his duties, or to cause him to terminate his
services or fail in his duty, refuses to deal with, whether by
supplying goods to, or otherwise, or to let on reasonable rent a
house usually let for hire or land not being cultivated land to,
or to render any customary service to such public servant or any
member of his family, on the terms on which such things would
be done in the ordinary course, or withholds from such person
or his family such medical services as he would ordinarily render,
shall be punished with imprisonment for a term which may
extend to three months, or with fine which may extend to five
hundred rupees, or with both.

Explanation . — For the purposes of this section “ public
servant ” has the same meaning as in section 3 but includ* s also
a person in the Military, Naval or Air service of His Majesty.

(2) No Court shall take cognizance of an offence punishable
under this section unless upon complaint made by order of or
under authority from the Local Government or some officer
empowered by the Local Government in this behalf.

‘Boycotting’ was not penalised before Ordinance No. V of 1930 was
promulgated. This section embodies the provisions of Ss. 69-70 of
Ordinance No. X of 1932.

5 . (1) Whoever publishes, circulates or repeats in public
any passage from a newspaper, book or other document copies
whereof have been declared to be forfeited to His Majesty under
any law for the time being In force, shall be punished with
imprisonment for a term which may extend to six months, or
with fine, or with both.

(2) No Court shall take cognizance of an offence punishable
under this section unless the Local Government has certified
that the passage published, circulated or repeated contains, in
the opinion of the Local Government, seditious or other matter
of the nature referred to in sub-section (1) of section 99A of the
Code of Criminal Procedure, 1898, or sub-section (1) of section
4 of the 'Indian Press (Emergency Powers) Act, 1931.

6. (1) Whoever makes, publishes or circulates ‘ any
statement, rumour or report which is false and which he has no
reasonable ground to believe to be trjie, with intent to cause or
which is likely to cause fear or alarm to the public or to any
section of the public or hatred or contempt towards any class of
public servants or any class of His Majesty's subjects shall be
punished with imprisonment which may extend to one year, or
with fine, or with both. »

CRIMINAL LAW AMENDMENT ACT lxxxi

Explanation . — For the purposes of this section public
servant means a public servant as defined in section 21 of the
Indian Penal Code.

(2) So long as this section remains in force, clause (6) of
section 505 of the Indian Penal Code shall be inoperative.

This section is almost the same as s. 26 of Ordinance No. X of 1932.

7 . (1) Whoever —

(a) with intent to cause any person to abstain from

doing or to do any act which such person has a
right to do or to abstain from doing, obstructs or
uses violence to or intimidates such person or any
member of his family or person in his employ, or
loiters at or near a place where such person or
member or employed person resides or works or
carries on business or happens to be, or persistently
follows him from place to place, or interferes with
any property owned or used by him or deprives
him of or hinders him in the use thereof, or

(b) loiters or does any similar act at or near the place

where a person carries on business, in such a way
and with intent that any person may thereby be
deterred from entering or approaching or dealing
at such place,

shall be punished with imprisonment for a term which may
extend to six months, or with fine which may extend to five
hundred rupees, or with both.

Explanation . — Encouragement of indigenous industries or
advocacy of temperance, without the commission of any of the
acts prohibited by this section is not an offence under this
section.

(2) No Court shall take cognizance of an offence punishable
under this section except upon a report in writing of facts which
constitute such offence made by a police officer not below the
rank of officer in charge of a police station.

This section is almost the same as Ss. 06 and 67 of Ordinance
No. X of 1932. It is meant to stop picketting. Peaceful picketting
which is not punishable in England was hit by the Picketting Ordinance
No. V of 1930, subsequently provided for in the above sections of the
said Ordinance of 1932. The Explanation is new.

«>

8 . (1) Where any young person under the age of sixteen
years is convicted by any Court of an offence which, in the
opinion of the Court, has been committed in furtherance of a
movement prejudicial to the public safety or peace and such
young person is sentenced tc> fine, the Court may order that the
fine shall be paid by the parent or guardian of such young person
as if it had been a fine imposed upon the parent or guardian.

Explanation . — In this’section the word " guardian ” includes
any person who, in the opinion of the 'Court, has for the time
being the charge of or control over the offender,

78

XLVof

1860.

XLVof

i860.

Molesting a
person to
prejudice of
employment
or business.

Power to
order parent
or guardian
to pay fine
imposed on
young
person.

V of 1898.

Procedure
in offences
under the
Act. V of
1898.

Power of
Local Go-
vernment to
make certain
offences
cognizable
and non-
bailable.

V of 1898.

XLVof

1860.

Amendment
of section
16, Act XIV
of 1908*

lxxxii THE INDIAN PENAL CODE

(2) Before making an order under this section the Court
shall give the parent or guardian an opportunity to appear and
be heard, and no such order shall be made if the parent or
guardian satisfies the Court that he has not conduced to the
commission of the offence by neglecting to control the offender,
or that the offence was not committed in furtherance of a
movement prejudicial to the public safety or peace.

(3) Where a parent or guardian is ordered to pay a fine
under this section, the amount may be recovered in accordance
with the provisions of the Code of Criminal Procedure, 1898.

This section corresponds to s. 28 of Ordinance No. II of
1932 and s. 29 of Ordinance No. X of 1932.

9 . Notwithstanding anything contained in the Code of
Criminal Procedure, 1898, —

(*) no Court inferior to that of a Presidency Magistrate
or Magistrate of the first class shall try any offence
under this Act ; *

(it) an offence punishable under section 2, 3, 5, 6 or 7
shall be cognizable by the police ;

(in) an offence punishable under section 4 shall be an
offence in which a warrant shall ordinarily issue in
the first instance ; and

(iv) an offence punishable under section 7 shall be non-
bailable.

10 . (1) The Local Government may, by notification in

the local official Gazette, declare that any offence punishable
under section 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507
of the Indian Penal Code, when committed in any area specified
in the notification shall, notwithstanding anything contained in
the Code of Criminal Procedure, 1898, be cognizable, and there-
upon the Code of Criminal Procedure, 1898, shall, while such
notification remains in force, be deemed to be amended
accordingly. *

(2) The Local Government may, in like manner and
subject to the like conditions, and with the like effect, declare
that an offence punishable under section 188 or section 506 of
the Indian Penal Code shall be non-bailable.

11 . [Printed as s. 16 (2) of the Indian Criminal Law
Amendment Act of 1908]. f •

CRIMINAL LAW AMENDMENT ACT lxxxiii

12 . [Printed as s. 17 (3) of the Indian Criminal Law
Amendment Act, 1908.]

13 . [See Ss. 17-A, 17-B, 17-0, 17-D, 17-E and 17-F in the
Indian Criminal Law Amendment Act, 1908, inserted by this
section.]

14 — amends the Indian Press Emergency Powers Act, 1931,
Preamble.

15 — amends s. 1 of the Indian Press (Emergency Powers)
Act, 1931.

16 — see sub-section (1) of section 4 of the Indian Press
(Emergency Powers) Act, 1931, which incorporates the
amendments.

17 . On the commencement of this Act section 62 of the
Special Powers Ordinance, 1932, shall cease to have effect.

18 . Anything done or any proceedings commenced in
pursuance of the provisions of Chapter VI of the Special Powers
Ordinance, 1932, shall, upon the commencement of this Act,
be deemed to have been done or to have been commenced in
pursuance of the corresponding provisions of the Indian Criminal
Law Amendment Act, 1908, as amended by this Act, and shall
have effect as if this Act was already in force when such thing
was done or such proceedings were commenced.

19 . Anything done or any proceedings commenced in
pursuance of the provisions of the Indian Press (Emergency
Powers) Act, 1931, as amended by section 77 of the Special
Powers Ordinance, 1932, shall, upon the commencement of this
Act, be deemed to have been done or to have been commenced
in pursuance of the corresponding provisions of the Indian
Press (Emergency Powers) Act, *1931, as amended by this Act,
and shall have effect as if this Act was already in force when
such thing was done or such proceedings were commenced.

20 . Any person accused of the commission of an offence
punishable under section 24, 25, 26, 28, 67 or 70, or by reason
of the provisions of Chapter VI of the Special Powers Ordinance,
1932, may, notwithstanding the expiry of the said Ordinance, be
tried and punished as if such offence were an offence punishable
under or by reason of the corresponding enactment of this Act,
and as if this Act had been in forte at the time of sufch commis-
sion ; and any trial of any such offence begun but not completed
at the expiry of the Special Powers Ordinance, 1932, may be
continued and completed as if it had been begun after the
passing of this Act :

Provided that no trial of an offence punishable under
section 67 or 70 of the said Ordinance shall be begun, continued
or completed in any area in which section 4 or section 7, as the
Case may be, is not in force*. ,

Amendment
of section 4,
Act XXIII
1931.

Cessation of
effect of
section 62,
Ordinance
X of 1932.

Adoption
and conti-
nuance of
action taken
under Act
XXIII of
1931 as
amended by
Ordinance X
of 1932.

Adoption
and continu-
ance of
action taken
under Act
XXI II of
1931 as
amended by
Ordinance
X of 1932.

Trial of and

completion

of trials of

offences

against

Ordinance

X of 1932.

THE INDIAN FISHERIES ACT

( ACT IV of 1897.' )

Title, ex-
tent and
commence-
ment.

Act to be
read as sup«
piemen tal
to other
Fisheries
Laws.

Definitions.

Passed on the 4th February , 1S97.

As AMENDED BY ACT X OF 1914.

An Act to provide for certain matters relating to Fisheries in
British India .

TX 7 HEREAS it is expedient to provide fo
v v relating to fisheries in British India ; It
as follows : —

for certain matters
is hereby enacted

1. ( 1 ) This Act may be called the Indian Fisheries Act,

1897-

(2) It extends to the whole of British India, except 2 3 4 5
Burma ; and

(3) 3 * * * * *

2 . Subject to the provisions of sections 8 and io of the
^ General Clauses Act, 1887, s this Act shall be read as sup-
plemental to any other enactment for the time being in force
relating to fisheries in any part of British India except Burma.

3 . In this Act, unless there is anything repugnant in the
subject or context, —

(1) “ fish ” includes shell-fish :

(2) “ fixed engine" means any net, cage, trap or other
contrivance for taking fish, fixed in the soil or made stationary
in any other way ; and

(3) “ private water ” means water which is the exclusive
property of any person, or in which any person has for the
time being an exclusive right of fishery whether as owner,
lessee or in any other capacity.

1 For Statement of Objects and Reasons, see Gazette of India, 1893

Pt. V, p. 101 ; for Report of the Selbct Committee, see ibid , 1897 Pt V*
p. 15 ; and for Proceedings in Council, see ibid , 1893, Pt. VI 0 207

ibid , 1896, p. 250, and ibid, 1897, p. 21. ’ -

This Act was extended to British Baluchistan by notification under
s. 5 of the Scheduled Districts Act, 1874 (XIV of 1874), Genl. Acts Vol II
see Gazette of India, 1897, Pt. II, p. 792. % ’ s

2 As to law in force in Lower Burma, see the Burma Fisheries Act

1905 (Bur. Act III of 1905), Bur. Code. 1

3 Repealed by Act X of 1914.

4 See now Ss. 4 and 26 of the General Claus** Art 1897 (X of 18971

Genl. Acts, Vol. IV. , '

5 Act I of 1887. «

Indian fisheries act

ixxxv

Explanation .— Water shall not cease to be "private
water" within the meaning of this definition by reason only
that other persons may have by custom a right of fishery
therein.

4 . (x) If any person uses any dynamite or other explosive
substance in any water with intent thereby to catch or destroy
any of the fish that may be therein, he shall be punishable with
imprisonment for a term which may extend to two months, or
with fine which may extend to two hundred rupees.

(2) In sub-section (x) the word " water " includes the
sea within a distance of one marine league of the sea-coast :
and an offence committed under that sub-section in such sea
may be tried, punished and in all respects dealt with as if it
had been committed on the land abutting on such coast.

5 . (x) If any person puts any poison, lime or noxious
material into any water with intent thereby to catch or destroy
any fish, he shall be punishable with imprisonment for a term
which may extend to two months, or with fine which may
extend to two hundred rupees.

(2) The Local Government may, by notification in the
official Gazette, suspend the operation of this section in any
specified area, and may in like manner modify or cancel any
such 1 notification.

6. (x) The Local Government may make 2 rules for the
purposes hereinafter in this section mentioned, and may by a
notification in the official Gazette apply all or any of such rules
to such waters, not being private waters, as the Local Govern-
ment may specify in the said notification.

(2) The Local Government may also, by a like notification,
apply such rules or any of thein to any private water with the
consent in writing of the owner thereof and of all persons
having for the time being any exclusive right of fishery therein.

(3) Such rules may prohibit or regulate all or any of the
following matters, that is to say : —

(a) the erection and use of fixed engines ;

(b) the construction of weirs ; and

(c) the dimension and kind of the nets to be used and

the modes of using them.

1 For instance of such a notification, see U. P. List of R. and O.

2 For rules under s. 6 for—

(1) Bengal (Darjeeling District), see Ben. Local Stat. R. and O.,

(2) Coorg, see Coorg R. and O. and Coorg District Gazette Extra-

ordinary, 1907, p. 2.

(3) North-West Frpntier Province see Gazette of India, 1902,

Vol. II, p. 19/ -

(4) Punjab, see Punjab Gazette, 1900, Pt. I, pp. 101 and 279;

ibid , 1910, Pt. t. p. 614.

Destruction
of fish by
explosives
in inland
waters and
on coast.

Destruction
of flSli by
poisoning
of waters.

Protection
of fish in
selected
waters by
rules of
Local
Govern-
ment.

lxxxvi

THE INDIAN PENAL CODE

Arrest with*
out war-
rant for
offences
under this
Act.

(4) Such rules may also prohibit all fishing in any specified
water for a period not exceeding two years.

(5) In making any rule under this section the Local
Government may —

(a) direct that a breach of it shall be punishable with

fine which may extend to one hundred rupees,
and, when the breach is a continuing breach, with
a further fine which may extend to ten rupees
for every day after the date of the first conviction
during which the breach is proved to have been
persisted in ; and

(b) provide for —

(i) the seizure, forfeiture and removal of fixed engines
erected, or used, or nets used, in contravention
of the rule, and

(if) the forfeiture of any fish taken by means of any
such fixed engine or net.

(6) The power to make rules under this section is subject
to the condition that they shall be made after previous publica-
tion.

7 . (1) Any police-officer, or other person 1 specially
empowered by the Local Government in this behalf, either by
name or as holding any office, for the time being, may, without
an order from a magistrate and without warrant, arrest any
person committing in his view any offence punishable under
section 4 or 5 or under any rule under section 6 —

(a) if the name and address of the person are known to

him, and

•*

(b) if the person decline's to give his name and address,

or if there is reason to doubt the accuracy of the
name and address if given.

(2) A person arrested under this section may be detained
until his name and address have been correctly ascertained :

Provided that no person so arrested shall be detained
longer than may be necessary for bringing him before a magis-
trate, except under the order of a magistrate for his detention.

1 For notification under this section in Madras, see Fort St. George
Gazette, 1903, Pt. I, p. 19.

The Prevention of Seditious Meetings Act
(ACT No. X of 1911.)

[Received the assent of the Governor General on the 22nd
March , 191J.]

An Act to consolidate and amend the law relating to the
prevention of public meetings likely to promote sedition
or to cause a disturbance of public tranquillity.

' 1 X 7 HEREAS it is expedient to consolidate and amend the law
” relating to the prevention of public meetings likely to
promote sedition or to cause a disturbance of public tranquillit y ;
It is hereby enacted as follows : — . M

l.(i) This Act may be called the Prevention of Seditious
Meetings Act, 1911.

(2) It extends to the whole of British India, but shall
have operation only in such Provinces or parts of Provinces
as the Governor General in Council may from time to time
notify in the Gazette of India.

2 . (1) The Local Government may, with the previous
sanction of the Governor General in Council, by notification
in the local official Gazette, declare the whole or any part of a
Province, in which this Act is for the time being in operation,
to be a proclaimed area.

(2) A notification made under sub-section (1) shall not
remain in force for more than six months, but nothing in this
sub-section shall be deemed to prevent the Local Government,
with the previous sanction of the Governor General in Council,
from making any further notifications in respect of the same
area from time to time as it may think fit.

3 . (1) In this Act, the expression “ public meeting ” means
a meeting which is open to tfie public or any class or portion
of the public.

■»

(2) A meeting may be a pliblic meeting notwithstanding
that it is held in a private place and notwithstanding that
admission thereto may have been restricted by ticket or other-
wise.

4 . (1) "No public meeting for the furtherance or discussion

of any subject likely to cause disturbance or public excitement
or for the exhibition or distribution of any writing or printed
matter relating to any suph subject shall be held in any pro-
claimed area — »

Short title
and extent.

Power of
Local Gov-
ernment to
notify pro-
claimed
areas.

Definition.

Notice to be
given of
public »
meetings.

lxxxviii

THE INDIAN PENAL CODE

Power of
Magistrate
to cause
report to be
taken.

Exception.

Power to
prohibit
public
meetings.

Penalties.

XLV of
1800.

V of 1898.

Penalty for
delivery of
speeches in
public
places.

Cognizance
of offences.

Repeals.
VI of 1907
XVII U
1910 t

(a) unless written notice of the intention to hold such

meeting and of the time and place of such meeting
has been given to the District Magistrate or the
Commissioner of Police, as the case may be, at least
three days previously; or

% .V

(b) unless permission to hold such meeting has been

obtained in writing from the District Magistrate
or the Commissioner of Police as the case may be.

(2) The District Magistrate or any Magistrate of the first
class authorized by the District Magistrate in this behalf may,
by order in writing, depute one or more Police-officers, not being
below the rank of head constable or other persons to attend any
such meeting for the purpose of causing a report to be taken of
the proceedings.

(3) Nothing in this section shall apply to any public meeting
held under any statutory or other express legal authority or to
public meetings convened by a Sheriff or to any public meetings
or class of public meetings exempted for that purpose by the
Local Government by general or special order.

« 5 . The District Magistrate or the Commissioner of Police,
as the case may be, may at any time, by order in writing, of
which public notice shall forthwith be given, prohibit any public
meeting in a proclaimed area if, in his opinion, such meeting
is likely to promote sedition or disaffection or to cause a dis-
turbance of the public tranquillity.

6. (1) Any person concerned in the promotion or conduct
of a public meeting held in a proclaimed area contrary to the
provisions of section 4 shall be punished with imprisonment for a
term which may extend to six months, or with fine, or with both.

(2) Any public meeting which has been prohibited under
section 5 shall be deemed to be an unlawful assembly within
the meaning of Chapter VIII 0^ the Indian Penal Code and of
Chapter IX of the Code of Criminal Procedure, 1898.

7 . Whoever, in a proclaimed area, in a public place or a
place of public resort, otherwise than at a public ma ting held
in accordance with, or exempted from, the provisions of section
4, without the permission in writing of the Magistrate of the
District or of the Commissioner of, Police, as the case may be,
previously obtained, delivers any, lecture, address or speech on
any subject likely to cause disturbance or public excitement
to persons then present, may be arrested without warrant and
shall be pilnished with imprisonment for a term which may
extend to six months, or with fine, or with both.

8 . No Court inferior to that of a Presidency Magistrate or
of a Magistrate of the first class or Sub-Divisional Magistrate
shall try any offence against this Act. *

9 . Repealed by Act XII of 1927.

THE TERRITORIAL WATERS
JURISDICTION ACT, 1788.

(41 & 42 Vic., C. 73.)

An Act to regulate the Law relating to the trial of offences committed
on the sea within a certain distance of the coasts of Her
Majesty’s Dominions.

tlTHEREAS the rightful jurisdiction of Her Majesty, her heirs
*’ and successors, extends and has always extended over the'
opens seas adjacent to the coasts of the United Kingdom and
of all other parts of Her Majesty's dominions to such a distance
as is necessary for the defence and security of such dominions :

And whereas it is expedient that all offences committed
on the open sea within a certain distance of the coasts of the
United Kingdom and of all other parts of Her Majesty’s
dominions, by whomsoever committed, should be dealt with
according to law.

Be it therefore enacted by the Queen’s Most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same as follows : —

1 . This Act may be cited as the Territorial Waters Short title.
Jurisdiction Act, 1878.

2 . An offence committed by a person, whether he is or Amcnd-

is not a subject of Her Majesty,* on the open sea within the ment of the
territorial waters of Her Majesty’s dominions, is an offence ’ P..^ 0
within the jurisdiction of the Admiral, although it may have dictlonof
been committed on board or by means of a foreign ship, and the Ad-
the person who committed such offence may be arrested tried, miral.
and punished accordingly.

3 . Proceedings for the^ trial, and punishment of a person Restriction
who is not a subject of her Majesty, and who is charged with ,°. n ins ‘ itu '
any such offence as is declared by this Act to be within the ccedingste
jurisdiction of the Admiral, shall npt be instituted in any Court punishment
of the United Kingdom, except with the consent of one of Her of offence.
Majesty’s Principal Secretaries of State, and on his certificate

that the institution of such proceedings is in his opinion expe-
dient, and shall not be instituted in any of the dominions
of Her Majesty out of* the"* United Kingdom, except with the
leave of the Governor of the part of the dominions in which
such proceedings are proposed to be instituted, and on his ,

certificate that it is expedient that such proceedings should be
instituted. ,

THE INDIAN PENAL CODE

itc

Provisions
as to pro-
cedure.

Saving as
to jurisdic-
tion.

Saving as
to piracy.

Definitions.

"Jurisdic-
tion** of the
Admiral.

"United

Kingdom'*,

4. On the trial of any person who is not a subject of Her
Majesty for an offence declared by this Act to be within the
jurisdiction of the Admiral, it shall not be necessary to aver
in any indictment or information on such trial that such con-
sent or certificate of the Secretary of State or Governor as is
required by this Act has been given, and the fact of the same
having been given shall be presumed unless disputed by the
defendant at the trial; and the production of a document
purporting to be signed by one of Her Majesty's Principal
Secretaries of State as respects the United Kingdom, and by
the Governor as respects any other part of Her Majesty's
dominions, and containing such consent and certificate, shall
be sufficient evidence for all the purposes of this Act of the
consent and certificate required by this Act.

Proceedings before a Justice of the Peace or other Magis-
trate previous to the committal of an offender for trial or to
"the determination of the Justice or Magistrate that the offender
is to be put upon his trial shall not be deemed proceedings for the
trial of the offence committed by such offender for the purposes
of the said consent and certificate under this Act.

5. Nothing in this Act contained shall be construed to be
in derogation of any rightful jurisdiction of Her Majesty, her
heirs or successors, under the law of nations, or to affect or
prejudice any jurisdiction conferred by Act of Parliament
or now by law existing in relation to foreign ships or in relation
to persons on board such ships.

6. This Act shall not prejudice or affect the trial in manner
heretofore in use of any act of piracy as defined by the law of
nations, or affect or prejudice any law relating thereto ; and
where any act of piracy as defined by the law of nations is
also any such offence as is declared by this Act to be within
the jurisdiction of the Admiral, such offence may be tried in
pursuance of this Act, or in pursuance of any other Act of Parlia-
ment, law, or custom relating thereto.

7. In this Act, unless there is something inconsistent in
the context, the following expressions shall respectively have
the meanings hereinafter assigned to them ; that is to say :

" The jurisdiction of the Admiral ", as used in this Act,
includes the jurisdictions of the Admiralty of England and Ireland
or either of such jurisdictions as used in any Act of Parliament ;
and for the purpose of arresting any person charged with an
offence declared by this Act to be within the jurisdiction of
the Admiral, the territorial waters adjacent to the United
Kingdom, or any other part of Her Majesty's dominions, shall
be deemed to be within the jurisdiction of any /Judge, Magis-
trate or officer having power within such United Kingdom,
or other part of Her Majesty's d^nifiions, to issue Warrants
for arresting or to arrest persons charged with Offences com-
mitted within the jurisdiction , of such Judge, Magistrate,
or officer.

" United Kingdom" includes the Isle of Man, the Channel
Islands, and other adjacerft islands ;

TERRITORIAL WATERS JURISDICTION ACT XC1

“The territorial waters of Her Majesty’s dominions",
in reference to the sea, means such part of the sea adjacent
to the coast of the United Kingdom, or the coast of some
other part of Her Majesty’s dominions, as is deemed by inter-
national law to be within the territorial Sovereignty of Her
Majesty ; and for the purpose of any offence declared by this
Act to be within the jurisdiction of the Admiral, any part of
the open sea within one marine league of the coast measured
from low water mark shall be deemed to be open sea within the
territorial waters of Her Majesty’s dominions :

“ Governor" as respects India, means the Governor General
or the Governor of any Presidency ; and where a British
possession consists of several constituent colonies, means the
Governor General of the whole possession or the Governor of
any of the constituent colonies ; and as respects any other
British possession, means the officer for the time being
administering the Government of such possession ; also any
person acting for or in the capacity of Governor shall be
included under the term “ Goyernor."

“ Offence " as used in this Act means an act, neglect, or
default of such a description as would, if committed within
the body of a country in England, be punishable on indictment
according to the law of England for the time being in force :

“ Ship " includes every description of ship, boat, or other
floating craft :

“ Foreign ship " means any ship which is not a British

ship.

“Territorial
waters of
Her Majes-
ty’s domi-
nions."

“Governor."

“Offence.*

“Ship.”

“Foreign

ship."

Short title
and extent.

Whipping
added to
punish-
ments de-
scribed in
Act XLV,
1860.

Offences
punishable
with whip-
ping in lieu
of other
punishment

THE WHIPPING ACT.

(ACT IV of 1909.)

As amended by Act XVII of 1914.

A n act to consolidate and amend the law relating to the
punishment of whipping .

yy HEREAS it is expedient to consolidate and amend the law
relating to the punishment of whipping ; It is hereby
enacted as follows : —

1. (j) This Act may be called the Whipping Act, 1909;

and

(2) It extends to the whole of British India, inclusive of
British Baluchistan and the Sonthal Parganas.

2 . In addition to the punishments described in section 53
of the Indian Penal Code, offenders are also liable to the punish-
ment of whipping.

“ I think that the Indian Penal Code and the Code of Crimi-
nal Procedure must be read as if the Whipping Act formed a part
of the Penal Code from the date of its enactment *

3 . Whoever commits any of the following offences,
namely : —

(а) theft, as defined ki section 378 of the Indian Penal

Code, other than theft by a, clerk or servant, of
property in possession of his master ;

(б) theft in a building, tent or vessel, as defined in

section 380 of the said Code ;

(c) theft after preparation for causing death or hurt,

as defined in section 382 of the said Code;

(d) lurking house-trespass by night, or house-breaking,

as defined in sections 443 and 445 of the said
* Code, in order t to the committing of any offence
punishable with whipping under this section;

(e) lurking house-trespass by night, or house-breaking

by night, as defined in sections 444 and 446 of
A the said Code, in order to the committing of any
offence punishable with whipping ' under this
section,

1 Per Norman J., in Gour Ch. Shumadar, 7 Beng. L. R. 165 (169)
1871.

THE WHIPPING ACT

xciii

may be punished with whipping in lieu of any punishment
to which he may for such offence be liable under the
said Code.

When an accused is liable to be punished under this Act,
the charge must state the liability, and the judgment should set out
the grounds thereof when that punishment is imposed. 1 2 3

4 . Whoever —

(a) abets, commits or attempts to commit, rape as

defined in section 375 of the Indian Penal Code;

(b) compels, or induces any person by fear of bodily

injury, to submit to an unnatural offence as defined
in section 377 of the said Code ;

(c) voluntarily causes hurt in committing or attempting

to commit robbery, as defined in section 390 of the
said Code ;

( d ) commits dacoity as defined in section 391 of the said

Code ; may be punished with whipping in lieu
of or in addition to any other punishment to which
he may, for such offence, abetment or attempt,
be liable under the said Code.

When a person who has not been * previously convicted* is
convicted at one time of two or more offences, held it is illegal to
sentence him to whipping, for one of these offences, in addition to
imprisonment or fine for the other or others ; but it is not illegal to
sentence him to one whipping in lieu of all other punishments. 2

5 . Any juvenile offender who abets, commits or attempts
to commit —

(a) any offence punishable under the Indian Penal Code,
except offences specified in Chapter VI and in
sections 153-A and 505 of the Code and offence
punishable with death, or

(ft) any offence punishable uhder any other law with
imprisonment which the Governor General in
Council may, by notification in the Gazette of
India, specify in this behalf,

may be punished with whipping in lieu of any other punishment
to which he may, for such offence, abetment or attempt, be
liable.

Explanation.— * In this section the expression “ juvenile
offender" means an offender whom the Court, after jjiaking
such enquiry (if any) as may be deemed necessary, shall find
to be under sixteen years of age, the finding of the Court in all
cases being final and conclusive.

Juvenile offender means a person under the age of sixteen
years. 3 ■ }

1 Baidya , (1882) 5 M. 158.

2 Nassi v. Chunder, (1868) $ W. R. (Cr.) 41 (F. B.).

3 Reg. v. Muhammad Ali ValadkAbaul Ali , (1868) 8 Bom. H. C, R,
Ca. 0, referred to in Din AH (1884) 6 A. 482, ♦

Offences
punishable
with whip-
ping in lieu
of or in ad-
dition to
other puni-
shment.

Juvenile

offenders

when

punishable
with whip-
ping.

xciv

THE INDIAN PENAL CODE

Special pro-
vision as to
punishment
with whipp-
ing in
frontier
districts.

Amend-
ment of
section 392.

6 . Whenever any Local Government has, by notification
in the official Gazette, declared the provisions of this section
to be in force in any frontier district or any wild tract of country
within the jurisdiction of such Local Government, any person
who in such district or tract of country after such notification
as aforesaid commits any offence punishable under the Indian
Penal Code with imprisonment for three years or upwards,
may be punished with whipping in lieu of any other punishment
to which he may be liable under the said Code.

7 . To section 392, sub-section ( 2 ), of the Code of Criminal
Procedure, 1898, the words " and, in the cases of a person
under sixteen years of age, it shall not exceed fifteen stripes ”
shall be added.

8. [Repealed by Act XVII of 1914.]

The Reformatory Schools Act
(ACT VIII of 1897.)

Received, the assent of the Governor General on the
nth March, 1897.

An Act to amend the law relating to Reformatory Schools and to
make further provision for dealing with youthful offenders.-

\ 17 HEREAS it is expedient to amend the law relating to
’* Reformatory Schools and to

dealing with youthful offenders ;
follows : —

make further provision for
It is hereby enacted as

/. — Preliminary.

1 . (1) This Act may be called the Reformatory Schools
Act, 1897 ; and

(2) It shall come into force at once.

(3) This section and section 2 shall extend to the whole
of British India. The other sections shall extend in the first
instance to the whole of British India except the territories
for the time being administered by the Lieutenant-Governor
of the Pubjab and the Chief Commissioner of Coorg but either
of the said Local Governments may at any time, by notification
in the local official Gazette, extend these sections to their
territories from such day as may be fixed in any such
notification.

2 . (i) The Reformatory Schools Act, 1876, 1 is hereby
repealed.

(2) But all proceedings taken, orders passed, officers
appointed or authorised and rules made under the said Act
shall, as far as may be, be deemed to have been respectively
passed, appointed or authorised and made under this Act.

(3) Any enactment or document referring to the said
Act shall, as far as may be, be construed to refer to this Act,
or to the corresponding portion thereof.

3 . From the date fixed by any notification issued under
section 1, sub-section (3), section 399 of the Code of Criminal
Procedure, 1 1882, shall be repealed in the province to which
the notification relates. ,

1 Act V of 1876.

Title, com-
mencement
and extent.

Repeal of
Act V of
1876.

Section 399
of Act X of
1882 re-
pealed on
date fixed
by a notifi-
cation
under sec-
tion 1, sub-
section (3).

XCV1

THE INDIAN PENAL CODE

Definitions. 4. In this act, unless there is anything repugnant in the
subject or context, —

(a) “ youthful offender ” means any boy who has been

convicted of any offence punishable with transporta-
tion or imprisonment and who, at the time of
such conviction, was under the age of fifteen
years :

Record must show that the boy is under 15, Rat. Unrep.
Cr. case 906. »

Enquiry or evidence must be taken to ascertain petitioner's age. 2

(b) “ Inspector General ” includes any officer appointed

by the Local Government to perform all or any
of the duties imposed by this Act on the Inspector
General : and

(c) “ District Magistrate " shall include a Chief Presidency

Magistrate.

Power to
establish
and discon-
tinue Re-
formatory
Schools.

II. — Reformatory Schools.

5. With the previous sanction of the Governor General
in Council, the Local Government may —

(a) establish and maintain Reformatory Schools at such

places as it may think fit ;

(b) use as Reformatory Schools, schools kept by persons

willing to act in conformity with such rules, con-
sistent with this Act ; as the Local Government
may prescribe in this behalf ;

(c) direct that any school so established or used shall

cease to exist as a Reformatory School or to be
used as such.

Requisites
of schools.

Inspection
of Re-
formatory
Schopls.

6. Every school so established or used must provide.

(a) sufficient means of separating the inmates at night,

(b) proper sanitary arrangements, water-supply, clothing

and bedding for the youthful offenders detained
therein ;

(c) the means of giving such youthful offenders industrial

training;

(d) an infirmary or proper place for the reception of such

youthful offenders when sick.

7. (i) Every school intended t’o be established or used
as a Reformatory School shall, before being used as such,
inspected by the Inspector General, and if he finds that the

1 Nianji , (1889) 14 B. 381.
ZNahimuddi , (1899) 27 C, 133 (135).

REFORMATORY SCHOOLS ACT

xcvii

requirements of section 6 have been complied with, and that
in his opinion, such school is fitted for the reception of such
youthful offenders as may be sent there under this Act, he
shall certify to that effect, and such certificate shall be pub-
lished in the local official Gazette, together with an order of the
Local Government establishing the school as a Reformatory
School or directing that it shall be used as such, and the school
shall thereupon be deemed to be a Reformatory School.

(2) Every such school shall, from time to time, and at
least once in every year, be visited by the said Inspector General,
who shall send to the Local Government a report on the con-
dition of the school in such form as the Local Government pray
prescribe.

■ 8 . (x) Whenever any youthful offender is sentence# to
transportation or imprisonment, and is, in the judgment of the
Court by which he is sentenced, a proper person to be an inmate
of a Reformatory School, the Court may, subject to any rules
made by the Local Government, direct that, instead of under-
going his sentence, he shall be sent to such a school, and be there
detained for a period which shall be not less than three or
more than seven years.

(2) The powers so conferred on the Court by this section
shall be exercised only by (a) the High Court, ( b ) a Court of
Session, (c) a District Magistrate, and (d) any Magistrate
specially empowered by the Local Government in this behalf,
and may be exercised by such Courts whether the case comes
before them originally or on appeal.

(3) The Local Government may make rules for —

(a) defining what youthful offenders should be sent to

Reformatory Schools, having regard to the nature
of their offences or other considerations, and

(b) regulating the periods for which youthful offenders

may be sent to such schools according to their
ages or other considerations.

On conviction it is the duty of a Magistrate when pro-
nouncing a sentence to define precisely the nature of the sentence
intended.r

Direction for detention should be passed only after sentence.
5 C. W. N. 210.

For Rules made under this section see Calcutta Gazette March, 1,
1899, Part I, p. 220. a

9 . (r) When any Magistrate not empowered to pass an
order under the last foregoing section is of opinion that a youth-
ful offender convicted by him is a proper person to be an inmate
of a Reformatory School, he may, without passing sentence,
record such opinion and submit his proceedings and forward
the youthful offender to the District Magistrate to whom he
is subordinate.

(2) The* Magistrate to* whom the proceedings are so sub-
mitted may make such further inquiry (if any) as he may think

1 Rama , (1900) 24 M, 13 # (15).

2 See (1899) 27 C, 133 M

79

Power of
Courts to
direct
youthful
offenders to
be sent to
Reforma-
tory
Schools.

Procedure
where
Magistrate
is not em-
powered to
pass an
order under
section 8.

j&cviii

THE INDIAN PENAL CODE

Power of
Magistrates
to direct
boys under
sixteen
sentenced *
to imprison-
ment
to be sent
to Re-
formatory
Schools.

Preliminary
enquiry
and finding
as to age of
youthful
offender.

Govern-
ment to
determine
Reforma-
tory School
to which
such offen-
ders shall
be sent.

fit and pass such sentence and order for the detention in^ a
Reformatory School of the youthful offender, or otherwise,
as he might have passed if such youthful offender had been
originally tried by him.

10. The officer in charge of a prison in which a youthful
offender is confined, in execution of a sentence of imprisonment,
may bring him, if he has not then attained the age of fifteen
years, before the District Magistrate within whose jurisdiction
such prison is situate ; and such Magistrate may, if such
youthful offender appears to be a proper person to be an inmate
of a Ref 9 rmatory School, direct that instead of undergoing
the residue of his sentence, he shall be sent to a Reformatory
School, and there detained for a period which shall be subject
to the same limitations as are prescribed by or under seettoto 8 ,
with reference to the period of detention thereby authorised.

An order for detention passed under this section is not a
* sentence 1 within the meaning of Sec. 426, Cr. P. C., nor is it a punish-
ment enumerated in Sec. 53, I. P. C. *

11. (j) Before directing any youthful offender to be sent
to a Reformatory School under section 8 , section 9 or section 10 ,
the Court or Magistrate shall inquire into the question of his
age and, after taking such evidence (if any) as may be deemed
necessary, shall record a finding thereon, stating his age as
nearly as may be.

( 2 ) A similar inquiry shall be made and finding recorded
by every Magistrate not empowered to pass an order under
section 8 before submitting his proceedings and forwarding
the youthful offender to the District Magistrate as required by
section 9 , sub-section (j).

Magistrate has duty to decide the exact age. 2 3

It is generally desirable that there should be some reliable evidence
about the question of age, although a magistrate is competent to find
from the appearance of a person convicted by him that he is a youthful
offender. 3

The magistrate is directed under this section to enquire into
the question of age and after taking such evidence as may be deemed
necessary, to record a finding thereon stating the boy’s age as nearly
as may be, and, as it appears from Sec. 13, the magistrate is to state
the age in his order of detention. 4

12. Every youthful offender directed by a Court or
Magistrate to be sent to a Reformatory School shall be sent
to such Reformatory School as the Local Government may,
by general or special order, appoint for the reception of youth-
ful offenders so dealt with by such Court or Magistrate:

Provided that, if accommodation in a Reformatory School
is not immediately available for such youthful offender, he
may be detained in the juvenile ward or such other suitable
part of a prison as the Local Government may direct —

(a) until he can be sent to a Reformatory, School, or

1 Krishna Pandaram, (1915) 16, Cr. L. J, 134 (Mad.).

2 Mainji, (1889) 14 B. 381.

3 Makimuddin (1899) 27 C. 133.

Mtama, (1900) 24 M. 1 ?, (15).

REFORMATORY SCHOOLS ACT XCiX

(b) until the term of his original sentence expires,

whichever event may first happen. Should the term of his
original sentence first expires, he shall thereupon be released,
but, should he be sent to a Reformatory School, then the period
of detention previously undergone shall be treated as detention
in a Reformatory School.

13. (x) If at any time after a youthful offender has been
sent to a Reformatory School it appears to the Committee of
Visitors or Board of Management, as the case may be, that the
age of such youthful offender has been understated in the order
for detention, and that he will attain the age of eighteen years
before the expiration of the period for which he has been ordered
to be detained, they shall report the case for the orders of the
Local Government.

(2) No person shall be detained in a Reformatory School
after he has been found by the Local Government to have
attained the age of eighteen years.

14. The Local Government may at any time order any
youthful offender —

(a) to be discharged from a Reformatory School ;

(b) to be removed from one Reformatory School to

another such school situate within the territories
subject to such Government : Provided that the
whole period of his detention in a Reformatory
School shall not be increased by such removal.

15. (z) The Governor General in Council may by general
or special order direct that any Reformatory School situated
in one province shall be available for the reception of youthful
offenders directed to be sent to any Reformatory School by
any Court or Magistrate in any other province.

(2) Any such order may also provide for the removal of
the youthful offender, and the ^cost of his maintenance, and
may give any such further directions as may be necessary.

16. Nothing contained in the Code of Criminal Procedure,
1882, 1 shall be construed to authorise any Court or Magistrate
to alter or reverse in appeal’ or revision any order passed with
respect to the age of a youthful offender or the substitution
of an order for detention in a Reformatory School for transporta-
tion or imprisonment.

f * This section is not well-<frawn ; but apart from obvious
verbal critiscisms its object is clear enough. It does not exclude the
exercise of appellate or revisional jurisdiction under the Code in all
cases where a subordinate Court has ordered an offender to be detained
in a reformatory school. The exclusion is limited to two specific
matters, in regard to whch the legislature considered the court trying
an youthful better placed for arriving at a sound conclusion that an
appellate or revisional court could be. The first of these is the age

of the youthful offender The second is “ the substitution of an

order for detention in a ‘reformatory school for transportation or
imprisonment/ 1 These words *are no doubt very general, and if read
with absolute literateness, would protect the most illegal orders sub-

Persons
found to be
over eigh-
teen years
not to be
detained in
Reforma-
tory
Schools.

Discharge
or removal
by order of
Govern-
ment.

Tower to
Governor
General in
Council to
direct use
of Re-
formatories
in one pro-
vince for
receptioi of
youthful
offenders
from
another.

Certain
orders not
subject to
appeal or
revision.

THE INDIAN PENAL CODE

Appoint-
ment of
Superin-
tendent
and Com-
mittee of
Visitors or
Board of
Manage-
ment.

Superin-
tendent
may license
youthful
offenders to
employers
of labour.

Cancella-
tion of
license.

Determina-
tion of li-
cense.

Cancella-
tion of
license in
case of ill-
treatment.

stituting for imprisonment from any sort of interference. So to read
them would* I think, defeat the plain intentions of the Legislature. It
appears to me that they only refer to the propriety or suitableness of
such a substitution in the particular case, having regard to all the
circumstances. They do not include the legality of the substitution
directed or the competency of the court or Magistrate to direct it. ” *

This section does not affect the jurisdiction of the High Court as a
court of revision to consider the legality or propriety of the conviction
or sentence. 2

III. — Management of Reformatory Schools.

17. (/) For the control and management of every Re-
formatory School, the Local Government shall appoint either
(a) a Superintendent and a Committee of Visitors, or (b) a
Board of Management.

(2) Every Committee and every Board so appointed must
consist of not less then five persons, of whom two at least shall
be Natives of India.

(3) The Local Government may suspend or remove any
Superintendent or any member of a Committee or Board so
appointed.

18. (x) Every Superintendent so appointed may, with the
sanction of the Committee, by license under his hand, permit
any youthful offender sent to a Reformatory School, who has
attained the age of fourteen years, to live under the charge
of any trustworthy and respectable person named in the license,
or any officer of Government or of a Municipality, being an
employer of labour and willing to receive and take charge of
him, on the condition that the employer shall keep such youth-
ful offender employed at some trade, occupation or calling.

(2) The license shall be in force for three months and no
longer, but may, at any time and from time to time until the
expiration of the period for which the youthful offender h|s
been directed to be detained, be removed for three months
at a time. ,

19. The license shall be cancelled at the desire of the
employer named in the license.

20. If during the term of the license the employer named
therein dies, or ceases from business or to employ labour, or
the period for which the youthful offender has been directed
to be detained in the Reformatory School expires, the license
shall thereupon cease and determine.'

21. If it appears to the Superintendent that the employer
has ill-tre&ted the youthful offender, or has not adequately
provided for his lodging and maintenance, the Superintendent
may cancel the license.

This section read with the definition of youthful offenders
enables practically any court in the case of an offender under IS years
of age to deliver him to his parents with or without securities for his
future good behaviours. 3

1 Per Strachey. C. J. in Hari, (1899) 21. A. 391 (F. B.) App. 395.

2 Radhahrishna Bara!, 5 C. W. N.< 210.

3 Abdul A tit, (1918) 14 As L. J. 1158.

REFORMATORY SCHOOLS ACT Cl

22 . (2) The Superintendent of a Reformatory School shall
be deemed to be the guardian of every youthful offender de-
tained in such\school, within the meaning of act No. XIX of
1850 (concerning the binding of apprentices).

(a) If it appears to the Superintendent that any youth-
ful offender licensed under section 18 has behaved well during
one or more periods of his license, the Superintendent may,
with the sanction of the Committee, apprentice him under the
provisions of the said Act, and on such apprenticement the
right to detain such youthful offender in a Reformatory School
shall cease and the unexpired term (if any) of his sentence
shall be cancelled.

23 . (2) Every Committee of Visitors appointed under
section 17 for a Reformatory School shall, at least once in
every month, —

(a) visit the school, to hear complaints and see that the

requirements of section 6 have been complied with,
and that the management of the school is proper
in all respects ;

(b) examine the punishment-book ;

(c) bring any special cases to the notice of the Inspector-

General ; and

(d) see that no person is illegally detained in the school.

(a) If any member of a Committee of Visitors so appointed
fails or neglects, during a period of six consecutive months,
to visit the school and assist in the discharge of the duties
aforesaid, he shall cease to be a member of such Committee.

24 . If, in exercise of the power conferred by section 17,
the Local Government appoints a Board of Management for
apy Reformatory School, such Board shall have the powers
and perform the functions of the Superintendent under sec-
tions 18 to 22, both inclusive ; ’and the license mentioned in
section 18 may be under the hand of their chairman, and they
shall be deemed to be the guardians of the. youthful offenders
detained in such school.

25 . The Local Government may declare any body of
trustees or managers of a school, who are willing to act in
conformity with the rules referred to in section 5, clause (b)
to be a Board of Management under this Act, and thereupon
such body or Managers shall have all the powers and perform
all the functions of such Board of Management.

26 . (2) With the previous sanction of the Local Govern-
ment, every Board of Mctnagement of a Reformatory School
may from time to time make rules consistent with this Act —

(») to prescribe the articles which are to be deemed to
be " prohibited*articles and

Superin-
tendent to
be deemed
guardian
of ycuthful
offenders.

Power to
apprentice
youthful
offender.

Duties of
Committee
of Visitors.

Powers of
Board of
Manage-
ment.

Power to
appoint
Trustees or
other
Managers
of a school
to be a
Board of
Manage-
ment.

Power of
Board to
make rules.

THE INDIAN PENAL CODE

i »

Cll

(*») to regulate —

(a) the conduct of business of the Board ;

(b) the management of the school 1 ;

(c) the education and industrial training of youthful

offenders ;

(d) visits to, and communication with, youthful
offenders ;

(e) the terms and conditions under which any articles
declared by the Board to be " prohibited
articles " may be introduced into or removed
out of the school ;

(/) the manner in which such articles are to be
removed when introduced without due auth-
ority ;

(g) the conditions and limitations under which such

articles may be supplied outside the school to
any youthful offender under order of detention
therein ;

(h) the conditions on which the possession by any

such youthful offender of such articles may
be sanctioned ;

(i) the penalties to be imposed for the supply or

possession of such articles when supplied or
possessed without due authority;

t (j) the punishment of offences committed by youth-

ful offenders ; and

(k) the granting of licenses for the employment of
youthful offenders.

(2) In the absence of a Board of Management the Local
Government may make rules consistent with this Act to regulate
for any Reformatory School the matters mentioned in any
clause of sub-section (z), other than clause (it) (a), and also
the mode in which the Committee of Visitors shall conduct
their business.

IV. — Offences in relation to Reformatory Schools.

Penalty for
introduc-
tion or re-
moval or
supply of
prohibited
articles and
communi-
cation with
youthful
offenders.

«

27 . Whoever, contrary to any rule made under section 26,
introduces or removes or attempts by any means whatever to
introduce € or remove into or from any Reformatory School,
or supplies or attempts to Supply outside the limits of any
Reformatory School to any youthful offender under order of
detention therein, any prohibited article,

and every officer or person in charge of a Reformatory
School who, contrary to any such nile, knowingly suffers any
such article to be introduced into or removed from any Re-
formatory School, to be possessed by any youthful offender
detained therein or to be supplied tp aiiy such youthful offender
outside its limits, *

REFORMATORY SCHOOLS ACT Ciii

and whoever, contrary to any such rule, communicates or
attempts to communicate with any such youthful offender,

and whoever abets any offence made punishable under this
section,

shall, on conviction before a Magistrate, be liable to
imprisonment for a term not exceeding six months, or to fine
not exceeding two hundred rupees, or to both.

28 . Whoever abets an escape, or an attempt to escape
on the part of a youthful offender from a Reformatory School,
or from the employer of such youthful offender, shall be punish-
able with imprisonment for a term which may extend to six
months, or with fine not exceeding two hundred rupees, or
with both.

29 . A police-officer may, without orders from a Magistrate
and without a warrant, arrest any youthful offender sent to a
Reformatory School under this Act, who has escaped from such
school or from his employer, and take him back to such school
or to his employer.

V. — Miscellaneous.

30 . The provisions of the Prisoners' Testimony Act,
1869, shall be applied, so far as they can be made applicable,
to youthful offenders detained in Reformatory Schools as if they
were persons confined in jail within the meaning of that Act.

31 . ( 1 ) Notwithstanding anything contained in this Act
or in any other enactment for the time being in force, any Court
may, if it shall think fit, instead of sentencing any youthful
offender to transportation or imprisonment or directing him
to be detained in a Reformatory School, order him to be —

(a) discharged after due admonition, or

(1 b ) delivered to his parent or to his guardian or nearest
adult relative, on such parent, guardian or relative
executing a bond, with or without sureties, as the
Court may require, to be responsible for the good
behaviour of the youthful offender for any period
not exceeding twelve months.

(2) For the purposes of this section the term "youthful
offender " shall include a girl.

(3) The powers conferred on the Court by this section
shall be exercised only by Courts empowered by or under
section 8.

(4) When any youthful offender is convicted by a Court
not empowered to act under this section and the Court is of
opinion that the powers conferred by this section should be
exercised in respect of such youthful offender, it may record

Penalty for
abetting
escape of
youthful
offenders .

Arrest of
escaped
youthful
offenders.

Application
of Act XV
of 1869 to
youthful
offenders
detained in
Reforma-
tory
Schools.

Power to
deal in
other ways
with youth-
ful offen-
ders, in-
cluding
girls.

Procedure
when
youthful
offender
under de-
tention in a
Reforma-
tory School
is again
convicted
and sen*
tenced.

CiV THE INDIAN PENAL CODE

such opinion and submit 'the proceedings and forward the
youthful offender to the District Magistrate to whom such
Court is subordinate.

*

(5) The District Magistrate to whom the proceedings are
so submitted may thereupon make such order or pass such
sentence as he might have made or passed if the case had
originally been tried by him.

32 . When a youthful offender during his period of deten-
tion in a Reformatory School is again convicted by a Criminal
Court, the sentence of such Court shall commence at once,
notwithstanding anything to the contrary in section 397 of the
Code of Criminal Procedure, 1882, but the Court shall forthwith
report the matter to the Local Government, which shall have
power to deal with the matter in any way in which it thinks
fit.

Bengal Suppression of Terrorist Outrages

Act ( Supplementary ).

(ACf*No. XXIV of 1932.)

( Received the assent of the Governor General on the 23rd December ,

, * *932) ■

An Act to supplement the Bengal Suppression of Terrorist
Outrages Act, 1932.

\17HEREAS it is expedient to supplement the Bengal Suppres-
sion of Terrorist Outrages Act, 1932 ; It is hereby
enacted as follows : —

1 . This Act may be called the Bengal Suppression* dl
Terrorist Outrages (Supplementary) Act, 1932.

• 2. In this Act, —

(а) “ Code ” means the Code of Criminal Procedure,

1898 ; and *

(б) “ local Act ” means the Bengal Suppression of

Terrorist Outrages Act, 1932.

■*

3. (1) An appeal shall lie to the Court of Judicature at

Fort "William in Bengal, from — ^

(a) any sentence passed by a Special Magistrate in any
trial held under the local Act in the Presidency-
town of Calcutta.

( b ) any sentence of transportation for a term exceeding
two years, or of imprisonment for a term exceeding
four years passed by a Special Magistrate in any
trial under the local Act held outside the Presidency-
town of Calcutta.

(2) An appeal under sub-section (1) shall be presented
within thrity days from the date of the sentence, and shall be
disposed of by the High Court in the manner provided in
Chapter XXXI of the Code for the hearing of appeals.

4. Section i<j of the local Act shall have effect as if it had
been enacted by the Indian Legislature.

Beng. Act
XII of 1932.

Short title.

Definitions.
V of 1898.

Beng. Act
XU of 1932*

Appeals.

Effect of
section*! 9 of
local Act.

Exclusion of
interference
of Courts
with pro-
ceedings
under local
Act. y

Cvi 1 THE INDIAN PENAL* CODE

5 . Notwithstanding thg provisions of the Code, or of any
other law for the time being in force, or of anything having
the force of law, there shall, save as provided in the local Act
as supplemented by this Act, be no appeal from any* order or
sentence passed by a Special Magistrate under the local Act
and save as aforesaid no Court -shall have authority to revise
such order or sentence, or to transfer any case from any such
Magistrate, or to make any order under seetion 491 of the Code,
or have any jurisdiction of any kind in respect of any proceedings
of any such Magistrate, or of any direction made under Chapter
II of the local Act :

Provided always that nothing herein contained shall affect
the powers of the High Court under section 107 of the
Government of India Act. * *

The Local Government cannot prefer an appeal under « 417,
Cr. P. Code, against an order of acquittal passed by a Special Magistrate.!

1 Government Appeal No. 2 of 33 — The Government of Bengal v.
Lachmi Narayan Sarma, (unreportea decision) decided by Lort Williams
and Henderson, J.J., on 10-8-33. *

INDEX.

ABANDONMENT—

— of a child under 12 years by parent, etc., S. 317, p. 588.

ABDUCTION—

definition of — , S. 362, p. 657.

— is offence only when committed with certain aggravating circumstances, ib.

— is a continuing offence, ib.
difference between— and kidnapping, ib.

—in order to murder, S. 364, p. 660.

— with intent of secret and wrongful confinement, 5. 365, p. 661.

— of a woman to compel marriage, etc., S. 366, p. 662.

no offence when woman lived willingly with accused before abduction, p. 666.
— in order to subject the person abducted to grievous hurt, slavery, etc., S. 367,
p. 669.

— of a child with intent to steal from its person, S. 369, p. 671.
wrongful concealment or confinement after — , S. 368, p. 670.

— of a married woman, p. 665.

See Kidnapping.

ABETMENJ —

— of an offence is an offence, p. 60.
definition of — , S. 107, p. 161.

offence depends upon the intention of the person who abets, p. 162.
not necessary that the act abetted should be committed, S. 108, Expln. 2,

pp. 166, 168.

% not necessary that the person abetted should be legalty capable of com-
mitting the offence or should have same guilty intention or knowledge
j, of the abettor, S. 108, Expln. 3, pp. 166, 168.

concert between abettor and principal offender not necessary, S. 108,
Expln. 5, pp. 167, 169.
limits of liability for — , p. 162.

English law of — , pp* 159, 160.
accessory before the fact, p. 160.
accessory at the fact, ib.
accessory after the fact, ib.

— is of three kinds :

1. Abetment by instigation, p. 161.

* meaning of instigation, S. 107, Expln. 1, pp. 159, 161, 165.
instigation may be of unknown person, p. 161.
instigation through a third person, ib.
instigation may be direct or indirect, ib. g

advice per se is not instigation, p. 162.
refraining to dissuade is not instigation, p. 161.
deliberate absence from unlawful assembly is not instigation, 164.
acting as stakeholder in prize-fight is not instigation, ib.
instigating another to murder by sorcery whether abetment, p. 168.

2. Abetment by conspiraty, p. 162.

what is conspiracy, S. 108, Expln. 5, p. 167, pp. 162-163.
conspiracy whether a substantive offence, p. 163.

conspiracy for commission of suttee, p. 164. B

conspiracy for fofrgeiy, ib.
conspiracy for procuring abortion, ib.

2

THE INDIAN PENAL CODE

ABETMENT — contd.

3. Abetment by intentional aid, p. 164.

act and not mere intention necessary, ib.

grant of accommodation in* house for illegal marriage, ib.

aids in the offence of theft, p. 166.

aids by illegal omission, p. 166.

aid by giving facility, p. 165.

supplying food to a person about to commit crime if aid, ib.
acceptance of unstamped receipt, p. 164.

mere subsequent knowledge not an — , p. 169.

— of abetment is an offence S. 108, Expln. 4, p. 167.

— of an illegal omission is offence though abettor not legally bound to do the act,
S. 108, Expln. 1, p. 166.

— in British India of offences outside it, S. 108A, p. 169.

general provisions regarding punishment for — , Ss. 109-117, pp. 169-182. -

punishment«.for —

where the act abetted is committed, S. 109, p. 169.

where the person abetted does the act with different intention, S. 110,
p. 173.

where one act is abetted and a different one done, S. Ill, p. 174*.
where the act atfbtted causes effect different from that intended, S. 113,
p. 176. *

where the abettor is present at the time of the commission of offence,
S. 114, p.176.

meaning of presence, p. 178. *

waiting outside a house to watch, p. 179.
assistance by presence and encouragement, p. 178.
where the offence abetted is punishable with death or transportation and
that offence is not committed, S. 115, p. 180.
if hurt is caused, S. 115, ib.

where the offence abetted is? punishable with imprisonment and that offence
is not committed, S. 116, p. 181.

if the abettor or person abetted is public servant, S. 116, ib .
where offence abetted is cofhmitted by public generally or by more than
ten persons, S. 117, p. 182.

cumulative punishment for — and act done, S. 112, p. 175.

no enhanced punishment for — on previous conviction for offence abetted, p. 90.
— of giving false evidence, pp. 171, 340.

— of bribery, p. 181, pp. 182-277.

— of criminal breach of trust — p. 171.

— of forgery, p. 171.

— of bigamy, p. 171. *

— of murder, pp. 16«S, 171.

— of kidnapping, pp. 171, 172.

— of rescuing, p. 171.

— of offence under Legal Practitioners Act, p. 182.

— of offence under Criminal Law Amendment Act, p. 183.

— of dacoity p. 739. 4

— by concealing design to commit offence punishable with deatn or transportation,
S. 118, p. 184.

—-.by public servant by concealing design to commit offence which it is his duty
to prevent, S. 119, p. 185.

— by concealing design to commit offence punishable with imprisonment, S. 120,

p. 186.

— of waging war against the king, Ss. 121, 123, pp. 194, 200.

— of mutiny by ojffi „er, soldier or sailor in Army or Navy or Air-Force S. 131,
, P.215.

— of mutiny, if mutny is committed, S. 132, p. 216.

— of assault by soldier or sailor or airman on superior officer, Ss. 133, 134, pp.
216, 217.

— of deserton of soldier or sailor S. 135, p. 217.

-—of insubordnation by sailor or by soldier or airman S. 138, p, 219.

— by public servant of offences under Secs. 162 and 163 of the Code, S. *164, p. 279.
— in India of counterfeiting coin out of India, S. 236, p. 430.

— of suicide of child or insane person, etc., S. 305, p. 574.
c. — of suicide, S. 306, p. 576. ,

— of waging war against Asiatic Power in alliance with the King, S. 125, p. 210.

INDEX

3

ABETMENT — contd.

— of making false entry in employer's book, etc,, by clerk, servant or officer,
S. 477A, p. 945.

procedure for the trial of — , p. 172.
charge for the offence of — , pp. 171, 173.
what court has jurisdiction to try — , p. 172.

ABETTOR—

definition of — , S. 108, p. 166.

person giving false evidence to support false charge whether an — , p. 167,
joint trial of —, and the person abetted, p. 172.
woman cannot be guilty as — of offence under Sec. 498, p. 985.
wife not punishable as — of adultery, S. 497, pp. 982, 985.

See Abetment.

ABORTION—

punishment for causing — S. 312, p. 583.

woman committing — on herself, S. 312 Expin. ib.

causing — without woman's consent, S. 313, p. 585.

causing death of woman in attempt to procure — , S. 314, p. 586.

ABSCONDING—

— to avoid service of summons or order, S. 172, p. 295.
meaning of — , p. 297.

— whether an obstruction to apprehension, p. 412.

ABUSIVE WORDS—

— do not constitute obstruction of public servant in the discharge of his duties,
p. 322.

—if a sufficient provocation, pp. 529, 530, 534.

ACCESSORY—

— before the fact, p. 160.

— at the fact, ib .

— after the fact, ib.

the principle embodied in Sec. 201, p. 361.

no distinction in the Code between — before fact and principals of the first
and second degree, p. 43.

ACCIDENT—

•

act done by — when not an offence, S. 80, p. 105.

meaning of — , ib.

when — is a good defence, ib.

liability for carriage — , p. 106.

liability for — , with fire arms, p. 107.

ACCOMPLICE—

testimony of — , pp. 274, 552.

— in case of bribery, p. 274.

ACCOUNTS—

• *

unsigned settlement of — in writing is a valuable security, p. 38.
failure to keep election — S. 171-1, p. 294.

destruction, etc., or falsification of — by clerk, servant or officer, S. 477-A, p.945.
ACCUSATION—

extortioU by threat of — A an offence punishable with death, transportation, etc.,
S. 388, p. 726.

putting person in fear of— of offence in order to commit extortion, S. 389, p. 727.
— preferred in good faith to authorised person is not defamation, S. 499, Exccpn.
8, p. 992. ,

4

THE INDIAN PENAL CODE

ACCUSED —

— must be presumed to be innocent, p. 4.

onus of proving exceptions is on — , pp. 92, 546, 547, 548.

— under trial cannot be compelled to produce an incriminating document, p. 303.

refusal by — to answer questions, p. 308.

refusal by — to sign any statement or confession, p. 309.

— is not bound to state the truth, p. 338.

ACQUITTAL —

effect of— -of a conspirator in a subsequent trial, S. 191, p. 785.

ACT—

definition of — S. 33, p. 40.

— of several persons in furtherance of common object, S. 34, ib .

— criminal by reason of criminal knowledge or intention done by several persons,
S. 35, p. 45.

effect caused partly by — and partly by omission may be offence, S. 36, p. 46.
co-operation by doing one of several — constituting an offence, S. 37, ib.
joint — of different persons may amount to different offences, S. 38, p. 47.

— not necessary to constitute conspiracy for waging war against the king, S. 121-A
Expin., p. 197.

See RASH AND NEGLIGENT ACT.

ACTS—

words referring to — include illegal omissions, S. 32, p. 39.

ACTS OF STATE—

meaning of — , p. 103.

no — between the sovereign and his subjects, ib.
examples of — , p. 104.

ADDITION—

— to any property mark with intent to cause injury, S. 489, p. 967.

ADMIRALTY JURISDICTION-

what is — , p. 14.

— of High Courts, p. 15.

— of Mofussil Courts, ib.

— of Presidency Magistrates, ib.

law and procedure in — , ib.

charges in— p. 17. f

ADMISSION—

expression of apology not to be treated as — of guilt, p. 137.

ADOPTION—

forgery of an authority of — , S. 447, p. 924.

fraudulent cancellation, etc., of an authortiy of — , S. 477, p. 943.

ADULTERATION—

— of food or drink f to make it ftoxious, S. 272, p. 465.
meaning of 4 noxious, * ib. *

mere — of food or drink for profit no offence under Sec. 272 but may be cheating,
ib.

— of drugs, S. 274, p. 468.

sale of adulterated drugs, S. 275, ‘ p. 468.

Acts relating to— , p. 466. €

ADULTERY—

definition and punishment of — , S. 497, p. 978.
c accused need not know whose wife the woman is, p. 980.

wife not punishable as abettor of — f S. 497, p. 978.

INDEX

5

ADULTERY — Conti.

the reason of the above rule, p. 982.
meaning of connivance of husband, pp. 982, 983.
complained by aggrieved person necessary for prosecution for — , p. 979.

prosecution does not abate with the death of husband, p. 980.
evidence necessary to prove — , pp. 980, 981.

marriage must be strictly proved, p. 981.
proof of de. facto marriage not sufficient, ib.
mere conduct of parties insufficient to prove marriage, ib.
wife though an accomplice is a competent witness in — , ib.

— if grave and sudden provocation to husband, pp. 530-533.
house-trespass with intent to commit — pp. 872, 873, 886.

AFFIDAVIT—

false declaration in an — , pp. 318, 341.

ADVERTISEMENT—

of obscene books or obscene object, p. 487.
of patent medicines in language of — character, p. 490.

AFFIRMATION—

solemn — included in the word * oath, * S. 51, p. 53.

See Oaths or Affirmations.

AFFRAY—

definition of — S. 159, p. 269.

it must be in a public place — S. 159, ib.

What i9 a public place, ib.
difference between — and riot, p. 269.
dfference between — and unlawful assembly, ib.
punishment for — S. 160, p. 270.

asasulting a public servant suppressing an — ,S. 152, pp. 258, 259.

AGE—

limits of — with respect to capability of committing offence, Ss. 82, 83, p. 112.

AGENT—

liablity of owner or occupier of land for failure of his- — to give notice of unlawful
assembly or riot, or to use means for suppression, Ss. 154, 155, pp. 264, 266.
liability of— *for riot respecting land committed for the benefit of the owner or
occupier thereof, S. 166, p. 367.
criminal breach of trust by — S. 409, p. 784.

AIDING—

definition of the term — S. 107, Expln. 2, p. 159.
abetment by intentional — p .164.

presence at illegal marriage, ib.

acceptance of unstamped receipt, ib.

deliberate absence from unlawful assembly, ib.

supplying food to a person about to commit a crime, p. 165.

— by illegal omission, p. 166.

— escape of prisoner of state or war, S. 130, p f 213.

i) *

AIR-FORCE—

offences relating to — , (Ch. vii), p. 214 :

statement, rumour or report to cause mutiny in — , S. 505, p. 1040.

AIRMAN—

definition of — , S. 131, Expln. p. 215.
abetment of mutiny by — , S. 131, ib.

if committed in consequence, S. 132, ib.
assault by — , S. K33, p. 216.
if committed, S. 134, p. 217.
desertion by — S. 135, ib. 1

6

THE INDIAN PENAL CODE

AIRMAN — could,

harbouring — , who has deserted, S. 163, ib.

— deserter concealed. S. 137, p. 218.
insubordination by — , S. 138, p, 219.
wearing garb or carrying token used by — , S. 140, p. 220.
statement, rumour or report to cause — to mutiny, S. 605, p. 1040.

ALARM—

publishing or circulating rumour, etc., to cause — to the public, S. 605, p. 1040.

ALIEN ENEMIES—

— not liable to be tried, p. 8.

ALLEGIANCE —

attempt to seduce officer, soldier or sailor of Army or Navy from — , S. 131, p. 215.
ALTERATION—

dishonest or fraudulent — in a material part of document without lawful authority
is making a false document, S. 404 secondly , p. 905.

— of a book, account, etc., by servant, clerk or officer, S. 477-A, p. 945.

ALTERED COIN—

passing of — , S. 250, p. 440.

when it is Queen’s coin, S. 251, ib.
possession of — , S. 252, p. 441.

when it is Queen's coin, S. 253, p. 442.
delivery of — , S. 254, p. 442.

ALTERING APPEARANCE OF COIN—

— when it is ordinary coin, S. 248, p. 439. *

— when it is Queen’s coin S. 249, ib.

ALTERING WEIGHT OR COMPOSITION OF COIN—

— when it is ordinary coin, S. 246, p. 438.

—when it is Queen's coin, S. 247, p. 439.

scooping out part of the coin and putting anything into the cavity is — , S. 246,
Expin., p. 438.

ALTERNATIVE -

punishment where one of several offences found in the — S. 72, p. 84.

— charges under Ss. 466 and 471, p. 933.

imputation in the form of an — may amount to defamation S. 499, Expin. 3,
p. 990.

AMBASSADORS—

foreign— not liable under the Code, p. 8.

AMERICAN—

— to be sentenced to penal servitude instead of transportation, S. 56, p. 60.
ANIMAL—

meaning of — , S. 47, p. 53.

negligent conduct ^ith respect to — , S. 289, p. 483.

difference between— fearae nature and mansuetae nature , p. 484.
causing hurt or grievous hurt by means of — Ss. 324, 326, pp. 600,. 604.
mischief by poisoning, maiming, etc. an — Ss. 428, 429, pp. 854, 855.

ANNOYMOIJS COMMUNICATION—

criminal intimidation by — , S. 507, p. 1043. * r •

ANNOYANCE—

** — in criminal trespass, S. 441, p. 867. r

— by misconduct of a drunken person,^. 510, p. *046.

INDEX

7

APOLOGY—

expression of — not to be treated as admission of guilt, p. 137.
APPREHENSION—

omission to assist public servant in — of offender S. 187, p. 326.
preventing — of offender by harbouring or concealing him, S. 216, p. 392.
intentional omission of — by public servant, Ss. 221, 222, pp. 402, 403.
resisting or obstructing lawful — of one’s self or another, Ss. 224, 225, 225B,
pp. 406, 407. 410.

omission of — by public servant not otherwise provided for, S. 225A, p. 409.

obstruction to — of a boy under 7 years, p. 413.

resistance or obstruction to — of deserter from Army, p. 414.

ARBITRATOR—

— is a public servant, S. 21 Sixth, p. 24.

fabricating false evidence for judicial proceeding before — ,S. 192, p. 339.
ARMY—

offences relatng to the — Chap. VIII, p. 214.

ARMY ACT—

— not affected by Penal Code, S. 5, p. 17.

ARREST—

punishment for resistance or obstruction to lawful — , Ss. 224, 225, pp. 406, 407.
— by daffadar for theft not committed in his presence is illegal, p. 409.
rescue from illegal — , ib.

— by police officer in bona fide exercise of power is not wrongful restraint or
confinement, pp. 623, 624.

— by police without warrant is wrongful confinement, p. 623.
power of — by private person, p. 624.

obstruction to — by police constable without warrant but upon credible informa-
tion, p. 640.

— by police officer when not in good faith, p. 55.

ARTICLES OF WAR—

See Indian Articles of War.

ARTIFICER—

breach of a written contract of service at a distant place by an — where he is con-
veyed at master’s expense, S. 492, p. 972.

ASIATIC POWER—

waging war against — in alliancd*with the Queen, S. 125, p. 210.

ASSAULT—

definition of — , S. 351, p. 634.

mere words do not constitute the offence, S. 351, Expin., ib.
mere threat to use force if a person persists in a course of conduct does
not constitute the offence, p. 635.
it is something less than the use of criminal force, ib.

— on Governor General, Governor, etc., with intent to compel or restrain exercise
of lawful power, S. 124, p. 200.

abetment of — by soldier or sailor on his superior officer, Ss. 133, 134, pp. 216, 217.
— on public servant when suppressing riot, etc., S. 152, p 258.
punishment for — otherwise than on grave provocation’s. 352, p. 636.

— on public servant to deter him from discharge of his duty, S. 353, p. 637.

act done in good faith under colour of office is not an act done in discharge
of duty, pp. 638, 639.

— on police officer while conducting unauthorised search, p. 640.

— on peon executing a time-barred warrant, p. 641.

— on officer executing oALers under repealed Act, 642.

— on woman with intent to outrage modesty, S. 354, ib.

love with the woman does not excuse the crime, p. 645.
indecent assault on prostitute, ib.

— with intent to dishbnour person otherwise than on grave provocation, S. 3^ ib.
—in attempt to commit* theft of property carried by a person, S. 356, p. 646.

THE INDIAN PENAL CODE

8

ASSAULT — contd.

— in attempt wrongfully to confine person, S. 357, ib.

— on grave and sudden provocation, S. 358, ib.

— by house -trespasser to effect his entrance or departure, S. 445 fifthly , p. 877.
house-trespass after preparation made for — , S. 452, p. 886.
lurking house trespass or housebreaking after preparation made for — , Ss. 455,
458, pp. 889, 893.

ASSEMBLING—

— persons hired or engaged for unlawful assembly, S. 157, p. 267.

— for purpose of committing dacoity, S. 402, p. 753.

ASSEMBLY—

— when unlawful, S. 141, p. 222.

knowingly joining or continuing in — of five or more persons after it has been
commanded to disperse S. 151, p. 257.
disturbing religious — , S. 296, p. 501.

ASSESSOR—

— is a public servant, S. 21 Cl. (5), p. 24.
personation of — , S. 229, p. 421.

ASSISTANCE—

making of — , p. 326.

omission to assist public servant when bound by law to give — , S. 187, ib.
ASSOCIATION—

— is included in the word ' person,’ S. 11 , p. 20.
imputation, against an — , S. 499, Expln. 2. p, 992.

ATMOSPHERE—

maknig — noxious to health, S. 278, p. 470.

ATTACHMENT—

removal of property during — , p. 711.

ATTEMPT—

what is an — , p. 1047.

distinction between — and preparation, p. 1048, 1050.

— to comit an offence is an offence, p. 50.
enhanced punishment for — when legal, p. 89.

— to wage war against the King, S. 121, p. 194.

— to wage war against Asiatic Power in alliance with the King, S. 125, p. 210,
— to wrongfully restrain Governor General, etc,, to compel or restrain exercise of
lawful power, S. 124, p. 200.

— to bring into hatred or contempt or to excite disaffection towards His Majesty
or Government, S. 124A, p. 201.

— to rescue state prisoner, S. 130, p. 213.

— to seduce soldier or sailor from duty, S. 131, p. 215.

— to obstruct or to use criminal force on public servant when suppressing riot
etc., S. 152, p. 258.

— to promote enmity between classes, S. 153 A, p. 261.

— to be hired for joining unlawful assembly, S. 158, p. 268.

— by a public servant to obtain bribe, S. 161, p. 271.
what is such attempt, p. 277.

— to take gratification^ for corruptly influencing public servant, S. 162, p. 278.
— to take gratification for exercise of personal influence with public servant,
S. 163, p. 279.

—by public servant to obtain valuable thing for inadequate consideration, S. 165,

p. 280 . *

— to procure or obtain gratification in connection with exercise of electoral right,
S. 171B, p. 288. •

— to use false or fabricated evidence as genuine, S. 196, p. 355.

— to use false certificate as true, S. 198, p. 358.

—to use a false declaration as true, S. 200, p. 361.

~^-to obtain gratification to screen offender from punishment or abandon criminal
prosecution, S. 213, p. 387. f •

Index

9

ATTEMPT— contd.

— to take gratification, etc., to help in the recovery of stolen property, p. 392.

— to escape from custody, Ss. 224, 225B, pp. 406, 410.

— to rescue from lawful custody, Ss. 226, 225B, pp. 407, 410.

— to induce any person to receive counterfeit coin, Ss, 239, 240, 241, pp. 431,

434.

— to induce any person to receive altered coin, Ss. 260, 251, 254, pp. 440, 44 2.

— to do any act which is an offence by reason of obscenity, Ss. 292 cl. (e).
p. 487.

— to murder, S. 307, p. 576.

— to commit culpable homicide, S. 308, p. 581.

— to commit suicide, S. 309, p. 582.

assault or criminal force in — to commit theft of property carried by a person,
S. 356, p. 646.

assault or criminal force in — to wrongfully confine a person, S. 357, ib.

— to commit rape, pp. 686, 687.

— to put any person in fear of injury in order to commit extortoni, S. 385, p. 724.
— to put any person in fear of death or grievous hurt in order to commit extortion,
S. 387, p. 725.

— to put any person in fear of accusation of offence punishable with death, etc.,
in order to commit extortion, S. 389, p. 727.

— to commit robbery, S. 393, p. 733.

— to commit dacoity, p. 738.

— to commit robbery or dacoity when armed with deadly weapon, S. 398, p. 745.
— to commit house-trespass, p. 883.

— to commit housebreaking, p. 893.

— to cause death or grievous hurt while commtting lurking house-trespass or
housebreaking, S. 456, p. 889.

— to cause death or grievous hurt by any of the associates jointly concerned in
lurking house- trespass or house breaking by night, S. 460, p. 895.

— to secrete a will authority to adopt or any valuable security, S. 477, p. 943.

— to cause any person to do anything by inducing that person to believe that he
will be rendered an object of divine displeasure, S. 508, p 1043.

— to commit offences punishable with transportation or imprisonment not other-
wise provided for, S. 51 1 p. 1046.

ATTORNEY —

power of — is a document, S. 29 ill., p. 36.
criminal breach of trust by — , S. 409, p. 784.
forging a power of — , S. 466, p. 922.

AUTHORITY—

contempt of lawful — of public servant, Chap. X, p. 295.
forging an — to institute or defend'a suit, etc., S. 466, p. 922.
forging an — to adopt or to make or transfer valuable security, etc., s. 467, p., 924.
mischief with regard to or fraudulent or dishonest cancellation secretion etc. of
an — adopt, S. 477 p. 943.

BADMASH—

calling a man — is offence under Sec. 504, p. 1040.

BAIL—

taking or refusing — is a judicial act, p. 100.

becoming — by falsely personating another, S. 205, p. 368.

• '•

BAILIFF—

— not protected if breaks open a house to execute process against moveable
property, p. 101. ,

— not protected if breaks the door of a wrong person in cxcuting decree, p. 102.
amount of force which a — justified in employing, p. 594. J 1

BALANCE SHEET—

preparation of false — , j). 826.

false — is not punishable linger s. 191 but under s. 418 — p. 338.

10

THE INDIAN PENAL CODE

BALLOON—

letting off fire — whether an offence, p. 470,

BAMBOO—

whether cutting and removing— is mischief, p. 848.

BANKER—

criminal breach of trust by — , S. 409, p. 784.

BANK-NOTES—

meaning of — , S. 489A, Expin., p. 968.
counterfeiting — , S. 489A, ib.

the imitation need not be exact, p. 969.
traffic in or using as genuine counterfeit or forged — , S. 489 B, ib.
possession of forged or counterfeit — with knowledge and intent to use as genuine,
S. 489C, p. 970.

making, buying, selling or possessing instruments or materials for forging or
counterfeiting — , S. 489D, ib.

BAPTISM—

forging register of — , S. 466, p. 922.

BEIMAN —

calling a man — is an offence under Sec. 604, p. 1040.

BELIEVE—

the word— is much stronger than the word * suspect, ’ pp. 364, 970.
meaning of reason to — , S. 26, p. 34.

BENEFIT—

meaning of — , S. 92, Expin., p. 133.

communication for the — of a person is no offence S. 93, ib.
liability of person for whose — riot is committed, S. 155, p. 266.
manager or agents’ liability for riot respecting land for the — of its owner or
occupier, S. 156, p. 267.

BENEFIT OF DOUBT—

— in cases of murder, p, 504,

BID—

illegal — for property offered for sale by authority of public servant, S. 185, p. 320.

BIDDING FOR CERTAIN PROPERTY—

public servant unlawfully—, S. 169, p. 284.

BIGAMY—

what is — , S. 494, p. 973.

Hindu or Mahometan male not liable for — , ib.

See Marriage.

BILL OF EXCHANGE—

endorsement on a — is a document, S. 29, Expin., 2 ill., p. 36.
endorsement on a— «es a valuable security,^. 30 ill,, p. 37.

BIRTH—

concealment of— of a child by secret disposal of dead body, S. 318, p. 591.
forging register of—, S, 466, p. 922.

BOAT—

conveying passengers in an unsafe — , S. 282, p. 476

bodily pain—

causing— is causing hurt, S. 319, p. 594.

INDEX

11

BODY —

right of private defence of — , Ss. 97, 99, 100, 101, 102, 106, pp. 140, 143, 150, 152,
153, 158.

BONE— '

fracture or dislocation of — is grievous hurt, S. 320, seventhly, p. 590.

BOOKS—

punishment for sale, etc., of obscene- — , Ss. 292, 293, pp. 487, 491.
destruction, etc., or falsification of any — of employer by his clerk, servant or
officer, S. 477 A, p. 944.
false trademark on — , p. 955.

BOUNDARIES—

destroying or removing marks of — , S. 434, pp. 861, 862.

BOYS—

enticing — under 14 years is kidnapping, S. 361, p. 648.

BREACH OF THE PEACE—

intentional insult to provoke — S. 504, p. 1083.

BREACH OF CONTRACT OF SERVICE —

See Service.

BREACH OF TRUST—

See Criminal Breach of Trust.

BREAKING OPEN—

punishment for — closed receptacle containing property, S. 461, p. 890.

when the offender is entrusted with the custody of the receptacle, S. 462
p. 897.

BRIBE—

public servant taking or attempting to take — , S. 161, p. 271.
essential ingredients of bribery, p. 273.
what is an attempt to take — , p. 277.
asking for — is an attempt, ib.

offering — if abetment, ib. S. 116 ill. (a), pp. 181, 182.
presence at the time of abutment, p. 277.
payer is an accomplice though not always an abettor, p. 274.
proof of — p. 273.

testimony of accomplices in trial of the offence, ib.
taking — to influence a public servant, Ss. 162, 163, pp. 278, 279.
public servant abetting the taking of—, S. 164, p. 279.
abetment of offering — , pp. 181, 274.

See Gratification.

BRIBERY IN ELECTION—
what is — , S. 171-B, p. 288.

treating is a form of — , S. d 171-E, Expin., p. 291. »
payment of travelling expenses to voter, p 289.
proof of — , p. 288.
punishment for — , S. 171-E, p. 291.

BRIDGE—

mischief by injury to — , 3. 431, p. 859.

BRITISH INDIA—

definition of — , S. 15, p. 21.
crimes committed outside-r- p. 12.

12

THE INDIAN PENAL CODE

BRITISH INDIA — ccntd.

liability of foreigners for offences committed in — , p. 10.

abetment by foreigners of offences in—, p 17.

abetting in — the counterfeiting of coin out of — , s. 236, p. 430.

kidnapping a person from — , Ss. 350, 303, pp. 047, 058.

BRITISH TERRITORY—

punishment for offences committed within — , S. 2, p. 7.

punishment for offences committed beyond — , S. 3, p. 0. *

BROKER—

criminal breach of trust by — , S. 409, p. 784.

BUFFALO—

killing, maiming, poisoning or rendering useless a — , S. 429, p. 855.

BUILDING—

negligent conduct with respect to pulling down or repairing — S. 288, p. 482.

theft in a — , S. 380, p. 711.

criminal trespass by entering in to or remaining in any, — , S. 442, p. 874.

* what is and what is not a — , p 87 5.
brake van, ib.
compound, ib.
courtyard, ib.
enclosure, ib.
open space, ib.
thatch hut, ib.

mischief by fire or explosive substance with intent to cause destruction of anv —
S. 430, p. 863. 7 '

BULL—

— whether includes calf, p. 855.

dedicated — if can be subject of theft, p. 705.

dedicated — if can be subject of criminal misappropriation, p. 700

killing, maiming, poisoning or rendering useless any — , S. 429, p. 855.

BUOY—

exhibition of a false — , S. 281, p. 475.

mischief by destroying or moving a — S. 433, p. 861.

BURDEN OF PROOF—

— of the guilt is on the prosecutor, p. 4.

—of the existence of circumstances bringing the case within any exception is on
the accused, p. 92.

— of insanity as an excuse, p. 119.

— lawful authority or excuse is on the accused in a charge under S. 245, p. 438.
— of absence of fraudulent intention is on the accused in a charge under S. 482,
p. 959.

— shifted to accused when he pleads exceptions to S. 300, p. 547.

— when he pleads right of private defence — p. 242.

— is on the prisonei to prove lawful authority or excuse in unlawfully taking
Coining instrument — p. 438.

— to prove consent — p. 132.

* »

BURIAL—

secret — of dead body of a child, S. 318, p. 591.
forging register of — , S. 466, p. 922. ,

BURIAL PLACES— • .

trespassing on — to wound feeling or insult religion, S, 297, p. 503, 504.

Bl&'ING MINOR—

— for purposes of prostitution, S. 373, p. 678. t

INDEX

13

BUYING SLAVES —

punishment for — , S. 370, p. 602.

CALENDAR*^

year or month to be reckoned according to British — S. 49, p. 53.

CALF—

— whether included within ‘bull* or ‘cow’ in S. 429, p. 855.

CAMEL—

killing, poisoning, maiming or rendering useless any — , S. 420, p. 855.
CANCELLING—

fraudulent or dishonest alteration of a document by — a matcral part without
lawful authority, S. 464 secondly p. 905.
fraudulent or dishonest — of a will, authoritv to adopt or a valuable security
S. 477, p. 943.

CANDIDATE—

definition — , S. 171-A cl. (a) t p. 287.
meaning of — , ib.

CAPACITY—

fraudulent use or possession of a false measure of— Ss. 265 266, pp. 450, 451.
making or selling false measure of — , S. 267, p. 453.

CARNAL INTERCOURSE—

— against order of nature, S. 377, p. 691.

See Unnatural Offence.

CARRIAGE—

liability for — accident, p. 106.

death caused by allowing a — to go unattended, p. 618.

CARRIER—

criminal breach of trust by — , S. 407, p. 778.

CASTRATION—

— is grievous hurt, S. 320, p. 596.

CASTE— *

pollution of food of a — dinner by throwing a shoe, p. 505.
false representation as to — in marriage negotiations, pp. 821, 822.
defamation by letters in — question, pp. 1005, 1006, 1018, 1019.

CATTLE—

forcible seizure of — if wrongful loss, p. 29.

impounding of — , ib.

mischief done by — , pp. 842, 847.

CENSURE—

— by person in authority is no defamation, S. 499, Exccpn. 7, pp. 992, 1018, 1019.
CEREMONY—

punishment for disturbing religion? — , S. 296, p. 501.
disturbing funeral — , S. 297, p. 603.

fraudulently going through marriage — without lawful marriage, S. 496, p. 978.
CERTIFICATE—

issuing or signing false—, S. 197, p. 357.

— is not synonymous frith certification, ib.

14

THE INDIAN PENAL CODE

CERTIFICATE — contd.

using as true a — known to be false, S. 198, p. 358.
forging a — made by a public servant in official capacity, S. 46G, p. 922.
Sec False Certificate.

CHANNEL—

mischief by injury to navigable — , S. 431, p. 859.

CHARGE—

— in extra-territorial offences, p. 17.

alternative — , S. may be framed under S. 193, p. 347.

previous conviction to be stated in the — for awarding enhanced punishment,

p. 01.

form of the — after previous conviction, ib.

— of being a member of unlawful assembly should specify the common object,
pp. 233, 237.

omission to state the common object, ib. 238.
fresh — under alternative section, p. 315.

different — for different false statements in the same deposition whether legal,
p. 346.

contents of the — of perjury, p. 347.

notice of — of kidnapping is not sufficient notioe of — of abduction, p. 663.

See False Charge.

CHEATING—

definition of — , S. 415, p. 808.

ingredients of the offence of — , pp. 810, 823, 828.

prosecutor must be decieved by false representations, ib.
representation may be of something existing or about to take pla^e, ib.
representation need not be in words, p. 812.
deception may be concealment of facts, p. 813.
every false representation is not deceit, ib.

breach of contract is not prima facie evidence of intention to defraud, p. 814.
the fact that prosecutor had means of detecting the fraud is immaterial,
p. 811.

prosecutor must be fraudulently or dishonestly induced to deliver property,
etc., p. 814.

meaning of ‘ fraudulently ', p. 815.

delivery or retention of property must be illegal, p. 816.

meaning of ‘ property, * p. 817/

property includes money, p. 834.

inducement must be intended for and must have actually induced the
complainant, p. 817.
inducement must not be too remote, ib.
damage or harm to complainant necessary, p. 819.
damage must not be tooremorte, pp. 819, 820.

dishonest or fraudulent intention lnust exist at the time of commission,
pp. 836. 816,

distinction between — , criminal breach of trust and criminal misappropriation,
p. 809.

distinction between — and extortion, pp. 719, 809.

complaint of — whether to be made by the person deceived, p. 830.

person attempted to be cheated need not be complainant, p. 824,
place of trial of the offence of — , pp. 825, 829, 832.
contents of a charge for — , p. 828.

evidence of similar transactions if admissible to prove dishonest intention in — ,

pp. 820, 821, 828.

misdirections in jury charge in a trial of — , p. 829.

abetment of — , pp.ii24, 830. €

abetment not charged, conviction is not bad, p. 830.

attempt to comftiit — , pp. 823, 824, 827, 831, 832.

burden of proof, — pp. 820, 821.

conspiracy to cheat, — pp, 830, 831. ,

denial of payment by creditor, if amounts to — , p. 835.

exaggeration of quality of goods is not — , p. 813. $

nonfulfilmcnt of representation when amounts to—, p. 835.

raising money on house already sold in execution is — , ib.

receiving money to exert influence is not — , p. 836.

receiving money for investing a depressed class with koly thread whether amounts
to—, ib. •

INDEX

16

CH EATING — contd.

passing a woman to be of different caste and taking money thereby is — , ib.

— by directors, etc., by publishing false balance sheets, p. 827.

— in respect of one's own property, p. 835.

complainant making illegal and immoral contract with accused whether to be
allowed to pibsecute latter for — , p. 836.

current coins obtained by — cannot be restored when passed to bona fide persons, ib.
meaning of — by personation, S. 416, p. 821.

individual personated may be real or imaginary, S. 416, Expl. ib.
punishment for — , S. 417, p. 822.

when the offence is committed with knowledge that wrongful loss may
ensue to person whose interest offender is bound to protect, S. 418,
p. 826.

when the offence is committed by personation, S. 419, ib.
when the offender dishonestly induces the person deceived to deliver
property, etc., S. 420, p. 827.

S. 662, Cr. P. Code, applies to accused committed under S. 420, p. 832.
forgery for purpose of — , S. 468, p. 929.

CHEQUE —

— upon a banker is a document, S. 29 ill., p. 36.

CHILD—

act committed by — under 7 years is no offence, S. 82, p. 112.

act committed by — above 7 years and under 12 years when not an offence, S. 83, ib.

— between the age of 7 and 14 is presumed to be doli incapa under English law, ib.

theft by — , p. 113.

marriage by — , ib.

murder by — , ib.

rape by — , pp. 114, 703, 704.

act done in good faith for benefit of — is no offence, Ss. 89, 92, pp. 128, 132.
consent of — , S. 90, p. 130.

abetment of an offence committed by — S. 108, Expin., 3, p. 166.
preventing a — being born alive or causing it to die after birth S. 315, p. 587.
causing death of an unborn — by act amounting to culpable homicide, S. 316,
p. 688.

exposure and abandonment of a — under 12 years by parent or person having care
of it, S. 317, ib.

concealment of birth of a — by secret disposal of dead body, S. 318, p. 591.

whether foetus is a — , p. 592.
kidnapping a — from lawful guardianship, S. 361, p. 648.

kidnapping or abduction of a — with intent to steal from its person, S. 369, p. 671.
selling or buying a — for prostitution, etc., Ss, 372, 373, pp. 674, 679.
breach of contract to attend on and supply wants of a — , S. 491, p. 972.

CHOICE OF EVIL—

— for purpose of preventing or avoiding other harm to person or property, S. 81 »

pp. 108, 111.

CHOLERA—

negligently spreading — , p. 463.

CHOWKIDAR—

— whether a police officer, p. 407.
escape from custody of — , ib.

CIRCULATING—

— statement, rumour or report conducing to public mischief, S. 505, p. 1040.

CIVIL SURGEON— _

— not a public servant ‘within the meaning of S. 116, p. 181.

10

THE INDIAN PENAL CODE

CLAIM—

fraudulent — to property to prevent its seizure as forfeited or in execution, S. 207,
p. 371,

dishonestly making a false — in Court, S. 200, p. 372.
dishonest release of a — , S. 424, p. 840.

making a false document to support any — is forgery, Sj*463,p. 898.

CLASSES—

promoting enmity between — , S. 153A, p. 261.

circulating or publishing statement, rumour, etc., to incite any— to commit
offence against other — , S. 605, p. 1040.

CLERK—

possession of property by — is possession by master, S. 27, p. 34.
theft by — of property in possession of master, S. 381, p. 714.
criminal breach of trust by — , S. 408, p. 779.
who is a clerk, p. 781, 782.

son of a — assisting father in office whether a — , ib.
destruction, etc., or falsification of book, paper, writing, valuable security cr
accounts by a — S. 477A, p. 945.

CLOSED RECEPTACLE—

punishment for breaking open or unfastening a — containing property, S. 461,
p. 896.

when the person committing the offence is entrusted with the custody of
the receptacle, S. 462, p. 897.

COHABITATION—

— caused by a man by deceitfully inducing a belief of lawful marriage, S. 493,
p. 972.

COIN—

definition of — and Queen's — , S. 230, p. 422.

the definition is wider than legal tender, p. 423.

the test of Coin or Queen’s Coin, ib.

native state coin, ib.

cowry is not coin, S. 230, ill. (a), ib.

unstamped copper is not coin, S. 230, ill. (b), ib.

medal is not coin, S. 230, ill. ( c ), ib.

Farukhabad rupee is Queen's coin, S. 230, ill. ( e ), ib.

Company’s rupee is Queen’s coin, S. 230, ill. (d), ib.
gold coin of Akbar or gold mohur c*T Shajehan is not coin, ib.
counterfeiting — , Ss, 231, 232, pp. 424, 426.

the coin need not be legal tender, p. 425.
quicksilvering, p. 439.

what is counterfeiting in English law, p. 424.
unfinished coin whether can be counterfeit, p. 425.
making, mending, selling, etc., instruments for counterfeiting — , Ss. 233, 234,
pp. 426, 427.

possession of instrument or material for counterfeiting — , S. 235, p. 427.
whether possession should be voluntary, p. 429.
evidence of possession, ib.
what is coining instrument, ib.
abetment of counterfeiting — out of India, S. 236, p. 430.
import or export of counterfeit — , Ss. 237, *238, pp. 430, 431.
fraudulent delivery of counterfeit — with knowledge, Ss. 239, p. 431, 433.
guilty knowledge at the time of possession necessary, p. 433.
refusal by the person to whom delivered to accept is immaterial, ib.
delivery to a person asking for charity whether offence, ib.
delivery of counterfeit — not known to be. counterfeit when first possessed, S. 241,
p. 434. * •

possession of counterfeit — by person knowing it to be counterfeit when first
possessed, Ss. 242, 243, pp. 435, 436.

causing — to be of different weight or composition from that fixed by l&w, S. 244,
p. 437. ^ «

INDEX

17

COIN — contd.

diminishing weight or altering composition of—, Ss. 246, 247, pp. 438, 439.
altering appearance of — with appearance of— with intent that it shall pass as
coin of different description, Ss. 248, 249, pp. 439, 440.
delivery of — possessed with knowledge that it is altered, Ss. 260, 251* pp. 440, 441.
possession of — by person who knew it to be altered when he becaine possessed
thereof, Ss. 252, 253, pp. 441, 442.

delivery of — as genuine which when first possessed the deliverer did not know
to be altered, S. 254, p. 442.

COINING INSTRUMENT—

what is — , pp. 429, 430.

unlawfully taking — from mint, S. tt 245, pp. 437, 438.

burden is on the accused to prove lawful authority or excuse, p. 438.

COLLECTING —

— arms, men, etc., with intention of waging war against the King, S. 122, p. 199.
COLLECTOR—

— when is a judge, S. 19 ill. (tf), p. 22.

COMBUSTIBLE MATTER—

rash or negligent conduct with respect to — , S. 285, p, 479.

COMMENT—

— expressing disapprobation of Government measures for obtaining their altera-
tion by lawful means is not sedition, S. 124 A, Expin., 2, p. 201.

— expressing disapprobation of any action of the Government is not sedition,
S. 124A, Expln. 3, ib.

— on the conduct of public servants when not defamation, S. 499, Excpn. 2, p. 991.
— on the conduct of a person touching a public question is not defamation, S. 499,
Excpn. 3, ib.

— on the merits of a decided case or conduct of witnesses and others concerned
therein when not defamation, S. 499, Excpn. 5, ib.

— on the merits of a public performance or the character of its author when not
defamation, S. 499, Excpn. 6, p. 992.
what is fair — as a defence in defamation, pp. 1011, 1012.

COMMISSIONED OFFICER—

— in military and naval forces while serving under Government of India is a public
servant, S. 21, second , p. 24.

COMMISSIONER— *

municipal — is a public servant, S. 21, tenth ill., p. 24.

COMMITMENT—

— for trial or confinement by person in authority who knows that he is acting
contrary to law, S. 220, p. 401.

COMMON INTENTION—

distinction between — and common object, pp. 44, 251.
acts done by several persons in furtherance of — , S. 34, p. 38.

COMMON LAW— »

— rights how far affected by Penal Code, p. 18.

contempt of High Court by libel published out of Court is an offence under the —
p. 416.

COMMON .OIJJECT — *

difference between — and common intention, pp. 41, 251, 252.

— of unlawful assembly, S. 141, p. 222.

it may extend to certain point beyond which pi^mb^rs differ, p. 255.

B *

18

THE INDIAN PENAL COftE

COMMON OBJECT— contd.

acts done in prosecution of — , pp. 245, 246, 255.
principal and prominent — should from the subject of charge — , p. 238.
charge must set out — of unlawful assembly — , p. 237.
pmission held irregularly and unless prejudice shown conviction is not
* vitiated — pp. 237, 238.

duty of Court to come to clear finding — , p. 238.
duty of Appellate Court is to find which of the has been made out in case
where different — s, are set out — , p. 243.
proof of the — , p. 246.
failure of the — , p. 238.

liability of all members of unlawful assembly for offence committed in prosccu
tion of — , S. 149, p. 251.

no such liability ff offence under Special 4 C *» P- 253.

COMMUTATION—

— in good faith for benefit of a person is no offence, S. 93, p. 133." *
in good faith by a person for protection of his or other’s interest is not defama-
tion, S. 499, Excepn. 9, p. 993.

— of caution in good faith for good of the person communicated or for public
good is not defamation, S. 499 Excepn. 10, ib.
criminal intimidation by annoy mous — , S. 507, p. 1043.

COMMUNITY—

— is included in the word * public, ' S. 12, p. 21.

publishing, or circulating statements, etc., to incite any — to commit any offence
against any other — , S. 505, p. 1040.

COMMUNICATION—

— of death sentence by Government, S. 54, p. 59.

— of death sentence of pregnant woman, p. 60.

— of sentence of transportation by Government, S. 55, ib.

COMPANY—

— is included in the word * person/ S. 11 p. 20.

— imputation against a — , S. 499, Explin. 2,, p. 990.

COMPANY'S RUPEE—

— is Queen's coin, S. 230, ill. (d) t p. 423

COMPOUNDING OF OFFENCES—

talking or giving gratification ete. for — , Ss. 213, 214, pp. 387, 388.
where it is legal, S. 214, Excep., p^ 385.

COMPULSION—

act done under — when not an offence, S. 94, p. 134.
when — is a defence, p. 135.
when — is no defence, ib / 137.

COMPULSORY LABOUR—
unlawful — , S. 374, p. 681.

CONCEALING—

— material facts when an abetment, 107, Expln. 1, p. 159.

wrongfully — kidnapped or abducted person, S. 368, p. 670.

See Concealment.

CONCEALMENT—

— of design to commit offences, Ss. 118»120, pp. 184, 186.

— of design to commit offence punishable with death or transportation, S. 116.
p. 184.

— by public servant of a design to commit offence which it is duty to prevent,
— S. 119, p.185.

-—of design to commit offence punishable with imprisonment, S. 120, p. 186.

INDEX

19

CONCEALMENT — contd.

— of design of waging war against the King, S. 123, p. 200.

— of a state prisoner who has escaped, S. 130 p. 213.

—of deserter on merchant vessel through negligence of master, S. 137, p. 218.
fraudulent — of property to prevent seizure, S. 200, p. 369. -

— of an offender, S. 212, p. 385. ' *

no offence if done by husband or wife, S. 212, Excepn., p. 386.
accepting gratification, etc., for — of an offence, S. 213, p. 387.
offering gratification, etc., for — of an offence, S. 214, p. 388. *

—of an offender escaped from custody or ordered to be apprehended, S. 216,
p. 393.

— of birth of a child by secret disposal of dead body S. 318, p. 691.
wrongful — of a person after abduction or kidnapping, S. 368, p. 670.
assisting in — of stolen property, S. 414, p. 805.

dishonest or fraudulent — of property to prevent distribution among creditors,
S. 421, p. 837.

dishonest or fraudu ent — of property, S. 424, p. 840.
bigamy with — of former marriage, S. 495, p. 977.

— of a married woman with criminal intent, S. 498, p. 983.

CONCEALMENT OF BIRTH—

— of a child by secret disposal of dead body, S. 318, p. 591.

CONDITIONAL REMISSION OF PUNISHMENT—
violation of condition in a — , S. 227, p. 415.

CONDUCT—

criticism of — of public servant when no defamation, S. 499, Excepn., 2, p. 991.
criticism of — of a person touching a public question when no defamation, S. 499,
Excepn. 3, ib.

CONFESSION—

— refusal by an accused to sign a — , p. 309.

— of co-accused, its weight, pp. 552, 554.

voluntarily causing hurt to extort — , Ss. 330, 331, pp. 608, 609,
causing wrongful confinement to extort — , S. 348, p. 630.

CONFINEMENT—

malicious — by person in authority contrary to law, S. 220, p. 401.
suffering or aiding escape from — by public servant, S. 221, pp. 402, 403.
public servant negligently suffering escape from — , S. 223, p. 405.
wrongfully keeping in — a kidnapped or abducted person, S. 368, p. 670.

See Wrongful Ccomfinement.

CONFLAGRATION—

acts justified to prevent — , S. 81 ill. (b), p. 108.

CONFLICT—

— between the Penal Code and Special law, p. 18.

CONNIVANCE—

— at hiring, etc., of persons to join unlawful assembly, S. 150, p. 256.
sexual intercourse with wife of another without — of the husband, S. 497, p. 978.
meaning of — , pp. 982, 983.

CONSENT—

acts done by — are not offences, Ss. 87, 88, 89, 91, pp. 124, 126, 128, 132.

— not required when act done in good faith is beneficial, S. 92, p. 132.

— when not valid, S. 90, p. 130.
meaning of — , ib. i

difference between — and submission, ib.

— when no excuso for an offence, S. 91, p. 132,

— in indecent assault, p. 131.

— in rape, ib.

20

THE INDIAN PENAL CODE

GONSENT — contd,

must be free consent, p. 884.
mere submission is not consent, ib.
must be at the time of the act, p. 685.
must not be vitiated by fraud, ib.

— under misconception of fact, p. 131.

difference between English law and Indian law on — , in rape, pp. 131, 685.

— of guardian in abduction cases, effeit of, p. 156.

— of husband in adultery, what constitutes, p. 982.

— how far a defence in murder, S. 300, Excepn., 5, pp. 519 542, 543, 544.

onus of proving — is on the accused, p. 132.

causing miscarriage without woman’s — , S. 313, p. 585.

causing death by act done to cause miscarriage without woman’s — , S. 314, p. 586.
CONSIDERATION —

taking of a valuable thing by public servant without or with inadequate — ,
S. 165, p. 280.

CONSPIRACY —

what is — , pp. 162, IB'S,
definition of — , S. 120 A, p. 186.
ingredients of — , p. 186, 189.

gist of the offence lies in agreement — , pp. 188, 189.

engagement in — for committing an offence when constitutes abetment, S. 107
secondly, p. 159.

in abetment by — the abettor need not concert the offence with the principal
offender, S. 108, Expin., 5, p. 167.

English law as to — , p. 187.

difference between English and Indian law regarding liability for acts done by
one of the parties to — , p. 163.
evidence of — , pp. 188, 192, 193.

overt acts, p. 188.
contents of a charge of — , p. 190.
joinder of charges of — , ib.
cognizance of the offence of — , p. 191.

sanction has to be proved, ib.
punishment for — , S. 120B, p. 189.

effect of acquittal of a co-conspirator, p. 191.

— to wage war against the King or to overawe Government, S. 121 A, p. 197.

act or illegal omission not necessary to constitute the offence, S. 121A
Expin. ib.

evidence of such conspiracy, p. 198.

See Abetment.

CONSPIRATOR—

effect of acquittal of a — in a subsequent trial, p. 808.

CONSTRUCTION—

— of enactment, p. 106.

— of the Code, p. 3.

not afiected by Proceedings of Council, Reports of Select Committee and

Statements of Objects and Reasons, p. 5.

not limited by illustrations, p. 6.

not controlled by marginal notes and punctuation ib.

— of the provisos, {>.7. 0

— of penal sections, p. 4.

CONSTRUCTIVE LIABILITY—

provisions in the Code for—, Ss. 34, 149, 394, 396, 460, pp. 41 251 734 741 895
no— of members of unlawful assembly Where offcficc under special law committed
in prosecution of common object, p. 253.

CONTEMPT—

—of the authority of public servants, Chap. X p, 295.

INDEX

21

CONTEMPT — contd.

— of Court by intentional insult or interruption during judicial proceedings,
S. 228, p. 416.

impertinent threat to witness whether — , p. 420.
refusal to answer question whether — ,ib.
chewing betel in court whether — , ib.

publication of article referring to a case whether may qjmount to — , pp. 419,

42i >

— of the High Court by a libel published out of court is a common law offence,
p. 416.

High court if can commit for — of Mofusil court, p. 417.

allegation that Chief Justice has constituted a packed bench whtth r a — of court,
p. 419.

CONTINUANCE —

— of public nuisance after injunction to discontinue, S. 291, p. 486.

CONTRADICTORY STATEMENTS —

perjury arising out of — pp. 349-361.

— to be reconciled as far as possible, p. 351.

— under lengthly cross-examination, p. 353.
deposition containing — to lx read as a whole, ib.

CONTRACT OF SERVICE —

See Service.

CONTRIBUTORY NEGLIGENCE—

— no defence to criminal cases, p. 474.

CONVERSION—

fraudulent — of property, Ss. 403, 404, 405, pp. 754, 762, 764.
effect of — on marriage, p. 975.

CONVEYANCE—

— of person in unsafe or overloaded vessel, S. 282, p. 476.

CONVICT—

negligently suffering a — to escape from confinement or custody, S. 223, p. 405.
murder or attempt to murder by life — , Ss. 303, 307, pp. 563, 576.

CONVICTION— »

effect of previous — on punishment, S. 75, p. 87.

CO-OPERATION—

— by doing one of several acts constituting an offence, S. 37, p. 46.
COPARCENER—

theft by a — of joint property, p, 707.

criminal misappropriation by — of joint property, p. 761.

COPY— , ,

— of a lease is not a valuable security, p. 39.
filing of a — whether user of forged document, p. 936.

production of a forged— -of a document pursuant to court's order whether user,

CORPORATION— ,,

—included in the word ‘ person,’ S. 11, p. 20,

CORPOREAL PROPERTy —

— included in ' moveable, proper ty,’ S. 22, p. 28.

22

THE INDIAN PENAL CODE

CORPSE —

offering indignity to human — , S. 297, p. 503.

preventing a grave-digger from digging a grave whether an offence, p. 505,
human — cannot be subject of theft, p. 704.

CORPUS DELICTI—

what is — , pp. 564, 555.

CORROSIVE SUBSTANCE—

causing hurt or grievous hurt by— Ss. 324, 326, pp. 600, 604.

CORRUPTING WATER—

— of public spring or reservoir, S. 277, p. 469.

CORRUPTLY—

connotation of the word — p. 357.

public servant — making report, etc., contrary to law in judicial proceeding, S. 219,
p. 400.

— using evidence known to be false, S. 196, pp. 355, 356.

— using a false certificate as true, S. 198, p. 358.

— using a false declaration as true, S. 200, p. 361.

COUNCIL—

assault on a member of — with intent to compel or restrain the exercise of lawful
power, S. 124, p. 200.

COUNSEL—

privilege of — in uttering defamatory words, p. 1024.

COUNTERFEIT—

definition of — S. 28, p. 35.

imitation need not be exact, S. 28, Expl., ib.
possession of — mark or device to authenticate document, Ss. 475 476 pp. 941 . 943.
selling, etc., goods marked with — trade mark or property mark, S. 486, p. 963.

COUNTERFEITING COIN—

See Coin.

COUNTERFEITING MARK, PROPERTY MARK OR TRADE MARK —

See Mark ; Property Mark ; Trade Mark.
COUNTERFEITING STAMPS—

See Government Stamps.

COURT OF JUSTICE—

definition of — , S. 20, p. 23.

what officers of a — are public servants, S. 21, cl. 4, p. 24.
acts under orders of — are not offences, S. 78, p. 101.

when Hie officer executing the orders exceeds his power, ib.
investigation directed by a — is a judicial proceeding, S. 193, Expin., 3, p. 344.
absconding to avoid summons to produce documntin — , S. 172, p, 295.
preventing service of summons to produce, document in — , S. 173, p. 297.
non-attendance in — when ordered, S. 174, p. 297.

omission to produce document to — by a person legally bound, S. 175, p. 302.
omission to assist public servant in executing process of — , S. 187, p. 306.
forgery of record or proceedings of—, S. 466, p. 922.

comment on merits of case decided by — when no defamation, S. 499, Excepn. 5,
p. 991. «

publication of reports of proceedings of— is not defamation, S. 499, Excepn. 4,
pp. 991, 1013-1015.

COURT OF WARDS—

manager of— whether a public servant, p. 26.

INDEX

23

COURT MARTIALr—

trial before — is judicial proceeding, S. 193, Expin. 1, p. 343.

COVENANTED SERVANT—

— is a public servant, S. 21 first , p. 23.

COW-

killing, maiming, poisoning or rendering useless a—, S. 429, p# 856.

COWRIES—

— are not coins, S. 230, ill . (a), p. 423.

CREDITORS—

— obtaining discharge of their debts by anticipating other creditors commit no
offence, p. 370.

— guilty of theft if they take debtors’ property from their possession, p. 702.
dishonest or fraudulent removal, etc. of property to prevent distribution amoung— ,

dishonestly or fraudulently preventing debt being available for—, S. 422, p. 838.

CREMATION—

lawful — is no nuisance, p. 459.

CRIME—

— committed outside British India, p. 12.

CRIMINAL ACT—

— by several persons in furtherance of a common intention, S. 34, p. 40.
persons concerned in — may be guilty of different offences, S. 38, p. 47.

CRIMINAL BREACH OF CONTRACT—

— of service during voyage or journey, S. 490, p. 971.

— to attend on and supply wants of helpless person, S. 491, p. 972.

— to serve at a distant place to which servant is conveyed at master’s expense,
S. 492, ib.

CRIMINAL BREACH OF TRUST—

definition of — , S. 405, p. 764.

ingredients of the offence, p. 766.

actual conversion is not necessary, intent is the gist, p. 783.

does not include misappropriation of sale proceeds, pp. 765, 769.

trust essential to constitute >the offence, p. 766.

dominion over property, pp. 768, 783, 787.

property if restricted to moveable property, pp. 768, 769.

some overt act must be proved, p. 774.

intention and not actual wrongful loss or gain is material, ib.

mere delay in payment does not raise presumption of guilty, intention, p. 776.

abetment of — pp. 781, 785.

dishonest intention is a question of fact to be decided by jury, p. 778.
no offence when bona fide dispute, pp. 771, 772, 783.
distinction between — and criminal misappropriation, pp. 766, 809.
place of trial of the offence of — , pp. 776, 778, 779, 786.
charge in a trial for — , pp. 776, 777, 780, 786.
burden of proof on accused to prove non-conversion., p. 784.
autrafois acquit, p. 785.
effect of acquittal of a co-conspirator, ib.

property, if refers to immoveable property as well, pp. 768, 769, 787.
meaning of property, p. 787. *
indudes money, pp. 767, 768.

receiver or administrator if can be prosecuted for — without sanction of court,
pp. 773, 775, 776, 784.
punishment for — S. 406, p. 773.

when committed by carrier etc., S. 407, p. 778.

when committed by 'clerk or servant entrusted with property, S. 408, 779.

son of clerk assisting father in office whether a clerk, p. 782.

24

THE INDIAN PENAL CODE

CRIMINAL BREACH OF TRUST — contd.

when committed by public servant, banker, merchant or agent, S. 409, p. 784.
— by broker, pp. 770, 771.

— by banker, p. 788.

— by mortgagor in possession, p. 768.

— by partner, pp. 769, 770.

— by pledgee, pp. 770 772.

— by auctioneer, p. 771.

— by a cattle pound-keepr, p. 788.

— by factor, p. 789.

— by agent, « b.

— by Municipal servant, p. 788.

— by Postmaster, V. P. Articles, p. 788.

— by a Direction, pp. 772, 781, 782.

— by liquidator, p. 782.

— by a servant, pp. 781, 784, 789.

— by High Court Receivers, p. 773.

— on a hire purchase agreement, p. 770.

— with regard to moveables attached in execution, p. 772.
broker can not be convicted for — when real nature of transaction is loan, p. 767.
constable entrusted with purchase of building materials pocketing the money
after getting materials free whether commits — , p. 788.
denial by creditor of receipt of money if amounts to — , p. 766.
expenditure of money by partner whether — , ib.

failure by station master to credit excess charges on tickets issued whether — , ib.
forest guard allowing cutting of timber without permission of Government if
commits — , p. 769.

retention of money by pleader as his fees whether — , p. 773.
manager of Bank deceiving share holders as to profits whether guilty of — , p. 789.
refusal by one to return a box until some debt due is paid is not — , p. 772.
sale by Superintendent of Health Department of rice ordered to be destroyed
whether a — , p. 788.

sale by Sanitary Inspector of night soil if — , ib .

using and deteriorating a pledged turban is — by pledgee, p. 772.

CRIMINAL CONSPIRACY —

See Conspiracy.

CRIMINAL FORCE—

definition of — -, S. 350, p. 632.

it contemplates force again t a person, p. 634.
it includes * battery * of English law, p. 633.
using, threatening or attempting to use — to public servant when suppressing
riot, S. 152, p. 258. *

punishment for using — otherwise than on grave and sudden provocation, S. 352,
p. 630.

using — to deter public servant from discharge of his duty, S. 353, p. 637.
using — to woman with intent to outrage her modesty, S. 354, p. 642.
using — with intent to dishonour person otherwise than on grave provocation,
S. 355, p. 045.

using— in attempt to commit theft of property carried by a person, S. 350, p. 640
using — in attempt wrongfully to confine a person, S. 357, ib.
using — on grave and sudden provocation, S. 358, ib.

using — by house trespasser to effect entrance or departure, S. 445, fifthly, p. 877.
— in unlawful assembly, S. 141, p. 223.
threat of— when assault, S. 351, p. 634. e

CRIMINAL INTENTION—

what is — , pp. 105, 106.

criminal liability without — , p. 105. *

liability for acts done by several persons when such acts are offences by reason
of— , S. 35, p. 45. 0 . •

harmful act without — done to prevent other harm is no offence, S. 81, p. 108.

CRIMINAL INTIMIDATION— *

definition of—, S. 503, p. 1036. <

INDEX

26

CRIMINAL INT2MIDATIAN — contd.

capacityjrf^person making the threat to carry it into execution is immaterial,

when is the offence complete, pp. 1037, 1038.
threat of criminal prosecution whether — , pp. 1036, 1037.
place of trial of the offence of — , p. 1042.
punishment for — , S. 506, p. 1041.

when offence committed by anonymous communication or after precaution
taken to conceal the name or abode of offender, S. 507, p. 1043.

— in kidnapping or abducting a woman to compel her marriage, etc., S. 366,
p. 662.

CRIMINAL KNOWLEDGE—

liability for acts done by several persons when such act9 are offences by reason
of—, S. 35, p. 45.

CRIMINAL LAW—

— prior to Penal Code, p. 1.

CRIMINAL MISAPPROPRIATION—

essentials of the offence of — , p. 756.

property must be moveable, p. 761, 763, 764.
property must have an owner, p. 760.
res nulltus , ib.
lost property, pp. 759, 760.

appropriation for a time only, S. 403, Expin., pp. 754, 761.
appropriation by a finder, S. 403, Expin., 2, ib.
claim of right, p. 760, 764.
claim of right, p. 760, 764.

distinction between — and criminal breach of trust, theft and cheating, p. 755.

distinction between — and receiving stolen property, ib.

when the offence of — complete, p. 759.

when offence not made out, p. 763.

place of trial of the offence of — p. 757.

punishment for — , S. 403, p. 754.

when the property was possessed by a deceased person at the time of his
death, S. 404, p. 762.
partner is liable, p. 756.

— by broker, p. 763.
joint trial, ib.

— by a joint owner, p. 758.

— of joint family property, p. 761.

— of property drifting in river, p. 760.

— of wandering cow, p. 762. »

— of dedicated bull, pp. 760, 762.

— of articles left in railway carriage, shop, etc., p. 762.

— of goods ordered to be destroyed, p. 760.

— of mohur lying on the ground, p. 761.

— of lost property, ib.

— of a letter thrown away, ib.

refusal to return presents on breakdown of marriage negotiations if — p. 758.
retention of master's money by servant in satisfaction of wages whether—, p.760.
husband's liability for — by wife, p. 758.

See Misappropriation.

CRIMINAL PROCEEDING—

instituting— with intent to injure, S. 211, p. 375.
meaning of institution of — , p. 382.

complaint under Workman's Beach of Contract Act whether a — , p, 383.

CRIMINAL TRESPASS— *

definition of — , S. 441, p. 867.

entry upon property in the possession of another ’with intent to commit
~an offence, et$., pp. 867, 870. *

personally setting foot on land of complainant not neoessary, p. 868,
property may be ffshery, ib. * •

20

THE INDIAN PENAL CODE

CRIMINAL TRESPASS — contd*

mere possession of complainant is enough, ib .
possession must be actual and not constructive, p ib ,
offence if committed when accused in joint possession with complainant, ib.,
p. 869.

intention of the offender and not the nature of the act determines the
offence, pp. 870, 871.

criminal intention and not the knowledge of the consequence of the act is
the essence, p. 871.

mere illegal entry does not establish criminal intent, p. 871.
intention may be presumed from circumstances, pp. 872, 880.
intention must be found and not left to inference, p. 880.
offence when complete, p. 874,

bona fide claim of right when defence, pp. 873, 874, 880.
what must be proved by prosecution in case of — , p. 880.
defence in — p. 881.
punishment for — , S. 447, p. 879.

getting people to build on land in spite of complainant’s protests may amount to — ,
p. 868.

— by landlord, ib.

— by entering into any building, tent — etc. (house-trespass), S. 442, p. 874.

— into court compound, p. 882.

complaint by landlord of on land occupied by tenant if good, p. 881.
bearing complainant in a field belonging to third person if — , p. 882.
secret entry into exhibition building without purchasing a ticket of — , p. 870.
— for committing adultery, pp. 900.

forcibly ploughing up land in possession of complainant under alleged title to the
land is — , p. 873.

lurking house-trespass, S. 443, p. 876.
lurking house-trespass by night, S. 444, p. 877.
house breaking, S. 445, ib.
house-breaking by night, S. 454, p. 888.
punishment for house-trespass, S. 448, p. 882.

house-trespass in order to commit offence punishable with death, S. 449, p. 884.
punishable with Transportation, S. 460, p. 884.
with imprisonment, S. 451, p. 885.

— after preparation for causing hurt, assault or wrongful confinement, S. 452,

p. 886.

punishment for lurking house- trespass or house-breaking, S. 453, p. 887.
if in order to convict offtnce punishable with imprisonment, S. 454, p. 888.
after preparation for hurt, S, 455, p. 889.

punishment for lurking house- trespass, or house breaking by night, S. 456, p. ib.

— in order to commit offence, S. 457, p. 891.

— after preparation for hurt, S. 468, p. 893.

grievous hurt caused without committing Jiouse- trespass, S. 459, p. 894.

* grievous hurt or death caused by one of several persons jointly concerned, S. 460,
p. 895.

CRITICISM —

fair— of public conduct, merits of a case or conduct of parties therein, public
performance is not defamation, S. 499, Excepns. 2, 3, 5, 0, pp. 991, 992.
standard of fair — , p. 1011.

CULPABLE HOMICIDE—

definition of — , S. 299, p. 506.

offender need wot intend to kill any particular person, p. 509.
intention or knowledge is the gist of the offence, p. 512.
intention must be gathered from the act itself, ib.
knowledge must be judged by considering circumstances, p. 513.
gross negligence may amount to knowledge, p. 514.
accepting risk, ib.

omission causing death when offence, p. 51 1 «
when — is murder, S. 300, p. 517.

—is not murder when committed under grave and sudden provocation,
S. 300, Excepn., 1, p. 518.

^ when committed in exceeding the right of private defence, S. 300, Excepn.,
2/p. 519/

t

INDEX

27

CULPABLE HOMICIDE — contd.

when committed by public servant exceeding his powers, S. 300, Excepn., 3,
ib.

when committed in sudden fight without premedittion, S. 300, Excepn.
4, ib.

when the deceased being’ above 18 years suffers death or takes risk of
death with consent, S. 300, Excepn., 5, ib.

— by causing death of a person other than one whose death was intended, S. 301,
p. 544.

distinction between — and murder, pp. 521, 523.
jury charge in cases of — not amounting to murder, p. 564.
punishment for — not amounting to murder, S. 304, p. 563. *
attempt to commit — , S. 308, p. 581.

contributory action by third person is no defence to — , p. 509.
beating to death in exercising supposed evil spirit of — , p. 616.
beating a man with enlarged spleen and liver and causing his death whether — ,
pp. 515, 516.

CULPABLE NEGLIGENCE—
meaning of — , p. 615.

See Negligence.

CULPABLE RASHNESS—
meaning of — , p. 615.

CUMULATIVE PUNISHMENT—

— not to be awarded when single offence is made up of different offences, S. 71,
p. 73.

CURRENCY NOTE—

counterfeiting — , S. 489A, p. 968.

the imitation need not be exact, ib.

trafficking in or using as genuine forged or counterfeit — , S. 489B, p. 069.
possessing any forged or counterfeit — with knowledge and intent to use as
genuine, S. 489C, p. 970.

making, buying, selling or possessing instruments or materials for forging o
counterfeiting — , S. 489D, ib.

CUSTODY—

suffering escape from — by public rervant, Ss. 222, 223, pp. 403, 405.
escape from — of chowkidar, p. 407.
escape from illegal — , ib.

escape of an offender from lawful — , Ss. 224, 225B, pp. 406, 410.
escape from lawful — is not obstructing a public servant within the meaning of
S. 186, p. 322.

escape from — in which a person is detained for giving security for good
behaviour, p. 406.

rescue of another person from lawful — , S. 225, p. 407.
harbouring offender escaped from — , S. 216, p. 393.
temporary — is not lawful guardianship, p. 652.

— of an illegitmete child, ib.

CUTTING —

causing hurt or grievous hurt by instrument for — , Ss. 324, 326, pp. 600, 604..

DACOITS —

penalty for harbouring — . S. 216A, p. 395.
belonging to a gang of—, S. 400, p. 747.

association is the gist of the offence, p. 748.

association must be something more than casual, ib. >#

such association must be proved by direct evidence, ib. or reasonably
* inferred, ib, ,

28

THE INDIAN PENAL CODE

DACOITY —

definition of — , S. 391, p. 732.

essential ingredients of the offence, p. 736.

— is the joint act of the persons concerned, p. 738.
conviction whether bad if less than five persons, ib.
identification of the accused, p. 737.

identification in Court after failure at test identification, ib.
identification of the property, ib.
corroboration of approver, p. 738, 742.

mere association with dacoits no proof of participation in dacoity, p. 738.
punishment for — , S. 395, p. 735.
evidence of — , p. 737.
nature of evidence requisite, ib.
circumstantial evidence, p. 738.
presumption from recent possession, p. 739.
joint trial, pp. 730, 736.

effect of acquittal, whether number is still five, p. 736, 742, 743.
when committed with murder, S. 396, p. 741.

when committed with grievous hurt or attempt to cause grievous hurt or
death, S. 397, p. 743.

abetment of — , p. 739.

conviction by operation of S. 34 or S. 149, p. 739.
conspiracy to commit dacoity, p. 736.
attempt to commit — , p. 738, 744.

penalty for attempt to commit — when armed with deadly weapon, S. 398,
p. 745.

making preparation to commit — , S. 399, p. 746.

mere assemblage not sufficient, p. 747.
assembling for purpose of committing — , S. 402, p. 753.

dishonestly receiving property stolen in the commission of a — , S. 412, p. 802.
DANCING GIRL—

dedication of a minor girl to a temple to serve as — amounts to disposal for
purposes of prostitution, p. 677.
registering as — of a pagoda if an offence, ib.

DANGER—

causing — in public way or line of navigation, S. 283, p. 476.

DANGEROUS WEAPONS—

voluntarily causing hurt or grievous hurt by — , Ss. 324, 326, pp. COO, 604.

DEADLY WEAPON— •

what is — , p. 7235, 745.
whether lathi is — , ib, p. 250.

going or offering to go armed with — by persons hired or engaged for unlawful
assembly, S. 158, p. 268.
uses a — S. 397, pp. 743, 745.

attempt to commit dacoity when armed with—, S. 398, p. 745,

DEAF AND DUMB—

offence committed by — pp. 121.

DEATH—

meaning of — , S. 46, p. 52, 608.

harm done with consent by act not intended or known to cause — is no offence,
Ss. 87, 88, pp. 124, 126.

causing — of child or insane when offence even if done for benefit or with guardian's
consent, S. 89, pp. 128, 129.

— as punishment, p. 66. # .

offences punishable with — , Ss. 121, 132, 194, 302, 303, 307, 396, pp. 194, 215,
353, 646, 563, 576, 741.

sentence of — postponed in pregnant woman, p. 60
commutation of sentence ofc^by. Government, S. 54, jf. 59.

—does not save offender's property f*om liability for unpaid fine, S. 70, p. 70.

INDEX

29

DEATH— Contd.

right of private defence when extends to causing—, Ss. 100, 103, pp. 150, 154.
meaning of ' causing' — , S. 299 Expins., p. 506.

— caused by working upon the fancy or by hard or unkind usage, p. 508.

— caused by beating to exorcise a fancied evil spirit, p. 515.

— caused by injury to enlarged liver or spleen, pp. 515, 595, 603.

— of a child in mother's womb, S. 299, Expin., 3, p. 506.

—caused by rash or negligent act not amounting to culpable homicide,
S. 304-A, p. 568.

— caused by sexual intercourse, pp. 567, 618.

— caused by act done with intent to cause miscarriage, S. 314, p. 586.
causing — of a child after birth, S. 315, p. 587.
causing — of quick unborn child, S. 316, p. 588.
cases of hurt when a person is killed when — was neither intended nor was likely
to be caused, pp. 594, 595, 603.
theft after preparation for causing — , S. 382, p. 717.
extortion by putting a person in fear of — , S. 386, p. 725.

putting a person in fear of — in order to commit extortion, S. 387, ib.
extortion by threat of accusation of an offence punishable with — , S. 388, p. 726.
putting person in fear of accusation of offence punishable with — in order
commit extortion, S. 389, p. 727.
robbery or dacoity with attempt to cause — S. 397, p. 743.

— caused by emasculation done with consent, pp. 543, 567.

committing mischief after preparation made for causing — , S. 440, p. 866.

attempt to cause — whilst committing lurking house trespass or housebreaking,

S. 459, p. 894.

causing or attempting to cause — by any of the associates jointly concerned in
lurking house trespass or housebreaking by night, S. 460, p. 895.

— caused by allowing a carriage to go unattended, p. 618.

DEBT—

dishonestly or fraudulently preventing — being available for creditors, S. 422, r
p. 838.

DECEASED—

dishonest misappropriation of property possessed by — at the time of his death,
S. 404, p. 762.

imputation to a — person may amount to defamation, S. 499 Expin. 1, p. 990.
threat to injure the reputation of a— person may be criminal intimidation, S. 503
Expin., p. 1036.

DECENCY—

offences affecting public — , Chap XIV, p. 453.

DECISIONS—

public servant in judicial proceeding corruptly or maliciously pronouncing —
contrary to law, S. 219, p. 400.
value of English — , p. 6.

DECKED VESSEL—

mischief to — with intent to destroy or render unsafe, S. 437, p. 865.
when committed by fire or explosive substance, S. 438, ib.

DECLARATION—

—before a public servant when an ' oath ', S. 51, p. 53.

false statement made in — which, is by |aw receivable as evidence, S. 199, p. 359.
using a false— knowing it to be false, S. 200, p. 361.

DECREE—

fraudulently suffering or obtaining issue or execution of — for sum or property
not due, Ss. 208, $10, pp. 372, 373. J

DEED—

dishonest or fraudulent mention of— of transfer containing false statem&t of
consideration, S. 4£3, p. 839.

THE INDIAN PENAL CODE

a

30

DEFACEMENT—

fraudulent or dishonest— of will, authority to adopt or any valuable security,
S. 467, p. 924.

— of property mark with intent to cause injury, S. 489, p. 967

DEFACING PROPERTY MARK—

— is an offence, S. 489, p. 967.

DEFAMATION—

What is—, S. 499, p. 990.

essential ingredients of the offence, p. 996.
imputation may be on deceased person, S. 499 Expln. 1, p. 990.
imputation may be on association or class, S. 499 Expln. 2, p. ib.
imputation may be ironical or in the form of alternative, S. 499 Expln.
3, ib.

there must be publication of the imputation, p. 997.
what is publication, p. 998.

the meaning of harming one's reputation, S. 499 Expln. 4, p. 990.

proof of actual harm to reputation not necessary, pp. 1001.
meaning of publication, in the offence of — , p. 998.
publication by printer, publisher, etc., p. 999.
publication by republication, ib.
publication by repetition, p. 998.
communication by post card, p. 1006.
communication by post in a closed cover, ib.
dicating of a letter by the writer, p. 998.
copyright of a letter by clerk, ib.
communication by telegram, ib.
communication to one's wife, ib.
communication to prosecutor only, pp. 1000, 1001.
imputations that are not — , S. 499, Excepns. 1 — 10, pp. 990-993.
no — when an imputation of truth is published for public good, S. 499, Excepn. 1,
p. 990.

no — in fair criticism of the conduct of public servant, S. 499, Excepn. 2, pp. 991,
1010.

standard of fair criticism, p. 1011.

no — in fair comment of public conduct of a person S. 499, Excepn. 3, pp. 991, 1011,
what is fair comment, pp. 1011, 1012.
no fair comment when malice present, p. 1012.
what is malice and how proved, p. 1017, 1018.
intemperate language does not make comment unfair, p. 1012.
mere gross exaggeration does not make comment unfair p. 1011.
limits of fair comment, pp. 1012, 1013.

no— in publishing true report of proceedings of Court, S. 499, Excepn. 4 pp. 991,
1013. •

reason of the law, pp. 1013, 1014.

no protection when libellous comments are mixed up, p. 1013.
no — in fair comment of cases decided by court’ or conduct of parties therein,
S. 499, Excepn. 5, pp. 991, 1016.
the principle of the law, p. 1016.

no— in fair criticism of the merits of any performance or character of the author,
S. 499, Excepn. 6, pp. 992, 1016, 1017.
the reason of the law, p.
the comment must not mis state facts, p. 1017.
no— in censure in good faith by person in authority on conduct of another in
matters to which the authority relates, S. 499, Excepn. 7, pp. 992, 1018.
interdiction by spiritual head of muft if protected, p. 1018.
notice of excommunication by guru to disciple if protected, ib.
notice by a headman of caste to a member to clear up the character of his
daughter, p. 1019.

no — in bona fide accusation of a person, to a person having authority over him,
S. 499, Excepn. 8, pp. 992, 1019.

no protection to defamatory statements ig transfer petition made in bad
faith, pp. 1019. 1020.

no — in imputation made in good faith for protection of interest or for public
good, S. 499, Excepn. 9, pp. 993, 1021.

• no — in caution intended for good of person to* whom conveyed or for public
good, S. 499 f Excepn. 10, pp. 9j)3, 1030. <-

INDEX

31

DEFAMATION — contd.

difference between English and Indian law of — pp. 995, 996.
privilege in — , p. 1021.

absolute privilege, pp. 996, 1021.
qualified privilege, p. 996.
no absolute privilege under the code ib. p. 1026.
privilege of press how far extends, p. 1022.
privilege of judge, counsel, parties, etc., pp. 1022 — 1029.
privilege of statements to police while conducting investigation, p. 1027.
privilege of statements in pleadings, p. 1028.
complaint by person aggrieved necessary for a prosecution for — , p. 1051.

husband can complain for defamation of the wife, ib.
place of trial of the offence of — , p. 1031.
contents of the charge in a trial of — , p. 1033.
joint trial of the author and printer of — illegal, p. 1032.
acquittal under S. 182 no bar no prosecution for — , p. 1033.
punishment for — , S. 500, p. 1030.

penalty for engraving or printing matters containing — , S. 501, p. 1034.
penalty for sale of printed or engaged substance containing — , S. 502, p. 1035.
resolution at a meeting not to associate with a person for good reasons if — ,
p. 998.

viliffying the police force of a certain place whether — , pp. 1001, 1002.

— of a body of persons incorporated into a religious order, p. 1002.
calling lawyers as a class ‘ thieves ’ whether a— of a class, p. 1003.
libelling Hindu widows as a class — p. 1002.
insinuation may be — , ib.

statements in caste meetings whether — , p. 1006.
liability of newspaper editor for — , p. 999.

half truths and misleading statements by editor of newspaper, p. 1010.

— of an unnamed person out of a class, p. 1029. no — of news paper — 997

DEFILING—

— place of worship or object held sacred by any class, S. 295, p. 497.
meaning of—, p. 498.

DEFINITION—

— of offence is subject to exceptions, S. 6 p. 19.

DEFRAUD—

meaning of — , S. 25 pp. 31, 907.

DELETERIOUS SUBSTANCE—

causing hurt or grievous hurt by — , Ss. 324, 326, pp. 600, 604.

j

DELIRIUM TREMENS—

— when an excuse, p. 122.

DELIVERY—

dishonest or fraudulent — of property to prevent distribution among creditors,
S. 421, p. 837.

fraudulent— of property to preve .t its seizure, S. 206, p. 369.

— of altered coin, S. 254, p. 442.

DELUSION—

effect of insane — on criminal liability, pp. 166, 117.

DEMAND—

dishonest or fraudulent release of—, S. 424, p. 840. . f _

dishonestly or fraudulently preventing a— due to oneself being available for
• creditors, S. 422, p. 838.

DEMON—

See Evil Spirit*

32

THE INDIAN PENAL CODE

DEPOSITION—

refusal by a witness to sign^— , p. 309.

whether conviction for giving false evidence sustainable when — not taken in
accordance with law, p. 344.
number of false statements in the same — , p. 340.

DEPREDATION—

committing — on territories in alliance or at peace with the King, S. 126, p. 211.
receiving property obtained by — , S. 127, p. 212.

DESERTERS—

harbouring — , S. 136, p. 217.

concealment of — on board ship, S. 137, p. 218.

resisting or obstructing apprehension of — from Army, p. 414.

DESERTION—

abetment of — of soldier or sailor, S. 136, p. 217.
meaning of — t ib.

DESIGN—

concealment of — to commit offence punishable with death or transportation,
S. 118, p. 184.

concealment of — to wage war against the King, S. 123, p. 200.

DESTRUCTION—

— of evidence of offence, S. 201, p. 361.

— of document to prevent its production as evidence S. 204, p. 367.

— of a place of worship or object held sacred by a class, S. 295, p. 497.
fraudulent or dishonest — of a will, authority to adopt or any valuable security,
S. 477, p. 943.

— of book, account etc., of an employer by his servant, clerk or officer, S. 477A,
p. 946.

— of property mark with intent to cause injury, S. 489, p. 967.

DETAINING—

— a married woman with criminal intent, S. 498, p. 983.
what amounts to — , p. 987.

no— when wife goes away of her own accord and has no desire to return
to husband, p. 988.

strict proof of marriage if required, p. 986.

DEVDASI—

taking of a minor girl as — of temple whether offence, p. 681.

DEVICE—

counterfeiting — for authenticating documents or possessing counterfeit device
with dishonest intent, Ss. 476, 476, pp. 941, 943.

DHATURA— *

— poisoning, pp. 626, 528,

DHURNA—

sitting — is an offence, p. 1044.

DIE— * • «

making or possessing — for making fictitious stamp, S. 263A, p. 448.
making or possessing — for counterfeiting trade mark or property mark, S. 485,
p. 963.

DIRECTION OF LAW— f

disobedience of — by public servant with intent to cause injury to any person,
S. 166, p. 281.

disobedience of — by public servant with intent to save person from punishment
or property from forfeiture* S. 21?> p. 396. •

INDEX

33

director—

— it can be a clerk or servant of the company, pp. 781, 782.
publication of false balance sheet by — , p. 826.

DISAFFECTION—

meaning of — , S. 124A Expin. 1, pp. 201, 208.

exciting — towards His Majesty or the Government, S. 124 A, p. 201.

DISAPPEARANCE—

causing — of evidence of offence, S. 201, p. 361.

DISCOURTESY—

mere — and bad manners do not amount to any offence, p. 1039.

DISEASE—

causing — is causing * hurt \ S. 319, p. 694.
spreading infection of — , Ss. 269, 270, pp. 462, 464.

disobedience to quarrantinc rule for regulating intercourse with a place where
infectious — prevails, S. 271, p. 464.

DISFIGURATION—

permanent — of head or face is grievous hurt, S. 320 sixthly, p. 696.

DISHONEST MISAPPROPRIATION—

— of property, S. 403, p. 754.

— of property possessed by deceased at the time of his death, S. 404, p. 762.
intentionally running a vessel aground or ashore with [intent to commit — of
property, S. 439, p. 866

See Criminal misappropriation.

DISHONEST REMOVAL—

— of property, S. 424, p. 840.

— of produce by tenant, p. 842.

— of crop by judgment debtor during attachment, p. 841.

— by partner, p. 840.

DISHONESTLY—

definition of — , S. 24, p. 30.

distinction between — and fraudulently, p. 32.

— making a false claim in a Court of Justice, S. 209, p. 372.

DISHONESTY— t

test of — , p. 30.

DISHONOUR—

— to woman by assault or criminal force, S. 364, p. 642.
assault or criminal force with intent to — a person, S. 355, p. 645.

DISLOCATION—

— of a bone or tooth is grievous hurt, S. 320 seventhly, p. 596.

DISOBEDIENCE—

— of direction of law by public servant with intent to cause injury to any person,
S. 166, p. 281.

— of order duly promulgated by public servant, S. 188, p. 327.

— meaning of promulgated, pp. 330, 331.

— of order promulgated under S. 1*44 Cr. P. Code, pp. 330, 331, 332.

— to general proclamation under S. 133 Cr. P. Code, p. 331.

— without obstruction, annoyance or injury insufficient for conviction, p. 333.
no — in failure by a party in Civil Suit to produce property entrusted to him
when ordered, p. 330.

— of direction of law by public servant with intent to save person from punifAmcnt
or property from forfeiture, S. 217, p. 396.

*C • #

34

THE INDIAN PENAL CODE

DISOBEDIENCE — Contd.

— to quarantine rule, S. 271, p. 464.

— of general order prohibiting all processions— Probhat Feri case, p. 332.
DISTINCT OFFENCES —
punishment for — , p. 76.

DISTRIBUTION —

dishonest or fraudulent removal of property to prevent — among creditors, S. 421,
p. 837.

— of obscene books etc.. Ss. 292, 293, pp. 487, 491.

DISTURBANCE —

— to persons assembled for funeral ceremonies, S. 297, p. 503.

— of religious assembly, S. 296, pp. 501, 502.

— meaning of — , p. 503.

— music before Mosque, ib.

DIVINE DISPLEASURE—

causing a person to do a thing by inducing a belief in him that he will be rendered
an object of — , S. 508, p. 1043.

DIVIDEND—

forging an authority to receive — of valuable security, S. 467, p. 924.

DOCUMENT—

definition of—, S, 29, p. 36.

power of attorney is a — , S. 29 ill. p. 36.
letters imprinted on trees by forest ranger arc — , p. 37.
hammer for marking sleepers whether a — , p. 929.
difference between — and ‘ writing ' under English law, p. 37.
incorrect framing or translation of a — by public servant with intent to cause
injury, S. 167, p. 283.

omission to produce — to public servant by person legally bound to produce, S. 175.
p. 302.

incriminating — need not be produced by an accused under trial, p. 303.
making a — containing false statement for purposes of evidence in a judicial
proceeding, S. 192, p. 389.

destruction or secretion of — to prevent its production as evidence, S. 204, p. 367.
offences relating to — , Chap. XVIII, p. 897.
meaning of ‘ making a false — S. 464, p. *305.

fraudulent or dishonest execution etc., of a — , S. 464 first, ib.
fraudulent or dishonest cancellation or alteration of a — without lawful
authority, S. 464 secondly , ib.

fraudulently or dishonestly causing a drunken or unsound person tosign,
etc., a document, S. 464 thirdly, ib.
what is a forged — , S. 470, p. 930.

counterfeiting device or mark for authenticating — or possessing counterfeit
device or mark with intent to give appearance of authority to a — , Ss. 475,
476, pp. 941, 943.

See also Document ; Forged Document.

DOUBT—

punishment for offence committed left in — , S. 72, p. 84.

DRAINAGE—

mischief by causing inundation or obstruction to public — attended with damage,
S. 432, p. 860, * ’

DRINK-

See FooD'OR Drink.,

INDEX

35

DRIVING —

rash— on a public way, S. 279, p. 471.
duty of a man — along a public road, p. 473.

— on the wrong side of raodt ib.

DRUG —

adulteration of — , S. 274, p. 408.
sale of adulterated — , S. 276, ib.

knowingly selling etc., one — for another, S. 270, p. 409.

administering stupefying, intoxicating or unwholesome — with intent to commit
an offence, S. 328, p. 006.

DRUNKEN PERSON —

misconduct by a — in a public place, S. 610, p. 1046.

DRUNKENNESS—

— when a good defence, S. 86, p. 121.
delirium tremens when an excuse, p. 123.

presumption of knowledge or intent against a man in a state of — produced
against his will, S. 86, p. 123.

— whether an excuse for mitigation of offence, p. 124.

See Intoxication.

DUELLING—

death caused in — , p. 643.

DWELLING HOUSE—

theft in a — , S. 380, p. 711.

mischief by fire or explosive substance with intent to destroy — , S. 436, p. 863.
EAR—

permanent privation of the hearing of either — is grievous hurt, S. 320 thirdly .
p. 696.

EARTH—

things attached to the — or permanently fastened to anything which is attached
to the — are not moveable property, S. 22, p. 28.

— when severed from the soil is moveable property, ib.

— might be subject of theft, p. 704.

EASEMENT—

destruction of — is not mischief, jJ. 849.

EAST INDIA COMPANY—

Acts of Parliament in anywise affecting the — not affected by the Code, S. 6, p. 17.
EFFACING—

— writing from substance bearing Government stamp, S. 201, p. 446.

EFFECT —

— caused partly by act and partly by omission, S. 36, p. 46.

ELECTION— »

offences relating to — , Chap. IXA, p. 286.
bribery at — , what is, S. 171B, p. 288.
proof of bribery at — , ib. %

payment of travelling expenses to voter is bribery, p. 289.
treating if bribery f S. 171E, Expin., pp. 288, 291.
punishxftent for bribery at — , S. 171E, p. 291.
definition of undue influence at — , S. 171C, p. 289.

meaning of undue influence, p. 290.
definition of personation at — , S. 17 ID, ib.
examples of personation, ib. ^

36 THE INDTAN PENAL CODE

ELECTION — contd.

punishment for undue influence or personation at—*, S. 17 IF, p. 292.
making or publishing false statement in connectioivwrith — , S. 171G, p. 293.
illegal payments in connection with — , S. 171 H?*p. 294.
failure to keep — accounts, S. 171-1, ib.

ELECTORAL RIGHT—

definition of — , S. 171 A (fc), p. 287.

gratification in connection with the exercise of — , S. 171 B, p. 288.
ELEPHANT—

killing, poisoning, maiming or rendering useless any — , S. 429, p. 855.

EMASCULATION—

— is grievous hurt, S. 320, p. 596.

death caused by — done with consent, pp. 543, 567.

— by a man on himself is no offence, p. 597.

ENDORSEMENT ON BILL OF EXCHANGE —

See Bill of Exchange.

ENEMIES—

alien — in respect ofticts of war not triable by ordinary criminal courts, p. 8.

ENGLISH DECISIONS—
value of — , p. 5.

ENHANCED PUNISHMENT—

— for certain offences under Chap. XII or Chap. XVIII after previous conviction,
S. 75, p. 87.

See Previous Conviction.

ENMITY—

promoting — between classes, S. 153 A, p. 261.

ENTICING—

— away a married woman with criminal intent, S. 498, p. 983.

the woman cannot be guilty as an abettor, p. 985.

— away a long discarded married wife if an offence, p. 984.

— away minors or lunatics out of lawful guardianship, S. 361, p. 648.

ENTRY—

false — by clerk, servant or officer in his employer's book etc., S. 477A, p. 945.

— on land to assert a right therein is not criminal trespass, p. 871, 874.
secret — into exhibition building without purchasing a ticket is not criminal
trespass, p. 870.

mere— not sufficient to constitute criminal trespass, p. 875.

ERASURE—

— of mark denoting that stamp has been used, S. 263, p. 447.

ESCAPE—

voluntarily allowing, suffering or aiding— of prisoner of state or war, Ss. 128, 130,
pp. 212 — 2l3. € •

— from lawful custody is not voluntarily obstructing a public servant within
S. 186, p. 321.

— of offender from custody, S. 216, p. 393.

public servant intentionally suffering— of person committed or under sentence,
Ss. 221, 222, pp, 402, 403, 404.

negligently suffering — of person charged or convictld, S. 223, p. 405.. •

making or attempting to make — from lawful custody, S. 224, p. 406.

—from illegal custody of chowkidar. p. 405.

c— : from custody in which a person is detained* for giving security for good
behaviour, p. 406. *

INDEX

37

ESCAPE — contd.

— from custody of chowkidar, p. 407.

— of an offender from lawful custody, S. 224, p. 406, S. 226 B, p. 410.
suffering — of a person on part of public servant in cases not otherwise provided
for, S. 226 A, p. 409.

— from custody when arrested under a warrant not shown, p. 411.
theft after preparation made for causing death etc., in order to the effecting of —
after such theft, S. 382, p. 717.

— of a defendant from custody under a warrant in execution of a decree of a
civil court, p. 299.

EUROPEAN OR AMERICAN—

to be sentenced to penal servitude instead of transportation, S. 66, p. 60.

EUROPEAN BRITISH SUBJECT—
definition of^-, p. 61.

— is exempt from the operation of the Indian Extradition Act, p. 12.
EVIDENCE—

— of similar acts to prove fraudulent intent, pp. 33, 820, 828, 836.
causing disappearance of — of offence, S. 201, p. 361.

— of offence, what it means, p. 365.
refusal to give — required by a public servant, S. 179, p. 308.
destruction of document to prevent its production as— S. 204, jl 367.

Sec False Evidence.

EVIL SPIRITS—

killing a person on the statement that she was an — , p. 568.

EXAMINATION—

false personation at an — , p. 821.

EXCEPTIONS—

general — , Chap. IV, p. 92.

definition in the code are subject to general — , S. 6, p. 19.
burden of proving — is on the accused, p. 92.

EXCITING DISAFFECTION—

— against Government, S. 124 A, p. 201.

EXCOMMUNICATION—

— from caste pronounced by Gurm, p. 1019.
by caste headman, ib.

EXEMPTIONS—

— from trial by Indian courts, pp. 7,-8.

EXHIBITION—

—of false light, mark or buoy, S. 281, p. 475.

— of obscene books etc., Ss. 292, 293, pp. 487, 491.

EXPECTING TO BE A PUBLIC SERVANT—
meaning of — , S. 161, Explanation, p. 272.

EXPLANATIONS—

general — , Chap. II, p. 19.

EXPLOSIVE SUBSTANCE—

defihition of — , p. 480. #
revolver if an — , ib.

rash or negligent conduct with respect to—*, S. 286, ib.
voluntarily causing hurt by—, Ss. 324, 326, pp. 600, 604.
mischief by — , Ss. 435, 430, pp. 862, 863.

38

THE INDIAN PENAL CODE

EXPLOSIVE SUBSTANCE — contd.

mischief by — with intent to destroy or make unsafe a decked vessel etc., S. 438,
p. 865.

EXPORTING SLAVES—

punishment for — , S. 371, p. 674.

EXPOSURE—

meaning of — , p. 600.

— of child under 12 years by parent or person having care of it, S. 317, p. 588.

EXPRESSIONS—

sense of — once explained, S. 7, p. 19.

EXTORTION—

definition of — , S. 383, p. 718.
distinction between theft and — , p. 719.
distinction between cheating and — , ib.
distinction between robbery and — , ib .
what is — 1 pp. 720, 721.
what may be the subject of — , p. 720.

demanding money for doing what one is not bound to do is not — , p. 720.

picketing is — , ib.

punishmentTor — , S. 384, ib.

abetment of — , p. 721.

place of trial of the offence of — , ib.

charge to jury, ib.

essential ingredients of the offence of — , p. 722.

terror of criminal charge is a fear of injury, p. 723.
the threat that God will punish a man is not — , p. 724.
the accusation may be true, p. 722.
delivery of property by the person put in fear, p. 724.
threat of burning the complainant’s house, pp. 719, 722.
threat of loss of appointment, p. 719.
threat of wrongful confinement, p. 724.
attempt to commit — , S. 385, p. 724, S. 387, p. 725.
putting person in fear of injury in order to commit — , S. 385, p. 724.

— by putting person in fear of death or grievous hurt, S. 386, p. 725.
putting a person in fear of death or grievous hurt in order to commit — , S. 387,
ib.

— by threat of accusation of an offence punishable with death or transportation,
S. 388, p. 726.

putting person in fear of accusation of offence punishable with death etc., in order
to commit — , S. 389, p. 727. f

wrongful confinement for purpose of — , S. 347, p. 629.
causing hurt or grievous hurt for — , Ss. 327, 329, pp. 605, 607.

EXTRADITION—

law as to — , pp. 12 13.

EXTRATERRITORIAL JURISDICTION—

—over offences committed on land, p. 13.

—over offences committed on high seas, p. 14.

EYE—

permanent privation of the sight of either— i& grievous hurt, S. 320 secondly , p. 596.
operation on — rashly performed, pp. 55, 127. 617.

FABRICATING FALSE EVIDENCE—

definition of—, S. 192, p. 339.
essential elements of the offence of — , p. 340.
evidence must be admissible, p. 343.
evidence must be material, p. 341.

evidence must be adduced in judicial proceeding, pp. 342, 343,
judicial proceeding need not be pending, p.' 342i
punishment for — , S. 193, p. 343.

INDEX

39

FABRICATING FALSE EVIDENCE — contd

when the offence committed with intent to procure conviction of capital
offence, S. 194, p. 353.

when the offence committed with intent to procure conviction of offence
punishable with transportation or imprisonment, S. 195, p. 354.

See False Evidence.

FACE—

permanent disfiguration of — , is grievous hurt, S. 320 sixthly, p. 596.

FACILITATING COMMISSION OF OFFENCE—

penalty for— by concealing or making false representation of design to commit
offence, S. 118, p. 184, S. 120, p. 186.

S. 119, p. 185.

when the offender is public servant whose duty is to prevent such offence,
S. 119, p. 1857.

where the offence is waging war against the King, S. 123, p. 200.

FACTOR—

who is a — , p. 789.

criminal breach of trust by — , S. 409, p. 784.

FALSE ANSWER—

— to questions put under S. 161 Cr. P. Code not punishable, p. 337.

FALSE BALANCE SHEET—

preparation of — , an offence under S. 418, p. 82G.

FALSE CERTIFICATE—

issuing or signing — , S. 197, p. 357.
using a — as true, S. 198, p. 358.

FALSE CHARGE—

difference between false information and — , pp. 312, 314, 370.
no prosecution for — , before disposal of the complaint, p. 314.
in a trial for an offence of — , accused must get opportunity of proving the truth
of complaint, ib and pp. 378, 379.

— of offence with intent to injure, S. 211, p. 375.

— before Police may amount to injury, p. 62.
whether a false complaint to a police officer is — , p. 375.
what the prosecution must prove in a case of — , p. 376.

whether cognisance of the offence of — can be taken until the offender
has an opportunity ojf substantiating the original charge, pp. 378, 379.
before directing prosecution for — , complainant should be examined on
oath, p. 379.

withdrawal of complaint, ib.

— to police and subsequent complaint in Court, ib.
burden of proof, p. 381 .

enquiry by magistrate who dismissed complaint, p. 380.
whether notice is necessary for prosecution for — , p. 379.
joint trial for — for separate informations on different dates whether legal, ib.
misdirection in jury charge in trial for — , ib.
conviction for — in a summary trial, improper, p. 381 .
compounding of an offence no answer to — regarding it, ib,
evidence necessary for a conviction fer — , ib.
essential ingredients of the offence of — , pp. 381, 382. *
police officer may be guilty of — , p. 382.
compensation for—, p. 381.

mere failure of complaint not sufficient to sanction a prosecution for — ■, p. 382.
false report by police officer whether a — , ib,

— must be made to an officer or to court having power to investigate and send
• for trial, ib. •

false statement to police whether — , p. 383.

mere communication of suspicion to the police is not pp. 382, 384. ‘

scope and meaning of pp, 375, 376.

complaint to police Whether — , pp. 383, 384. '

40

THE INDIAN PENAL CODE

FALSE CHARGE — Contd.

answers to questions put by inquiring magistrate whether constitute — , p. 384.
telegram giving false information of dacoity whether amounts to — , ib.
suggestion to the police that a house should be searched whether a — , ib.

— of rape, p. 689.

FALSE CLAIM—

— in a court of justice, S. 209, p. 372.

FALSE DECLARATION—

making a — , S. 191, p. 335.

English and Indian Law compared, p. 337.
false verification in a pleading is — , p. 338.

— to a mamlatdar, p. 360.

— in a written statement, ib.

making a — which is by law receivable as evidence, p. 359.
using a — as true, S. 200, p. 361.

FALSE DOCUMENT —

making of — by public servant, S. 167, p. 283.

fabricating — for evidence in a judicial proceeding, S. 192, p. 339.

a — when fabricated evidence, ib.

meaning of making a — , S. 464, p. 905.

making a — in the name of a fictitious person, S. 464, Explanation 2, ib.
giving false description of a man in a document whether making a — , p. 909.
copy of a — whether a false document, p. 912.

FALSE EVIDENCE —

giving — , S. 191, p. 335, 336.

— includes a false statement as to belief or knowledge of a person, S. 191 Expin. 2
p. 335.

proof of the offence of giving — , pp. 338, 346.

conviction for giving — where the evidence improperly admitted, p. 339.
what is fabrication of — , S. 192, ib.

giving or fabricating — for judicial proceeding, S. 193, p. 343.

— gist of the offence is intention, p. 347.

exact words used by the accused should be stated in the charge p. 346.
giving or fabricating — with intent to procure conviction of capital offence, S. 194,
p. 353.

giving or fabricating — with intent to procure conviction of offence punishable
with transportation for life or imprisonment for 7 years, S. 195, p. 354.
using or attempting to use — as genuine, S. 196, p. 355.

fabrication of — whether an offence when such evidence is inadmissible, pp. 342, 343.
photographing persons committing dacoity whether fabricating — , p. 355.

— in matters not material to the result of the procedure, p. 353.
using — fabricated out of British India, p. 367
no conviction of an accused for giving — in his own trial, p. 337.
abetment of giving — , p. 340.

— in pleading, p. 338. '

complaint necessary in prosecution for giving — , p. 348.
contradictory statements in deposition, if — , pp. 349, 351.
retracted statements of witnesses, if — , p. 352.

Locus peniteniae of witness, p. 349.

principle in awarding punishment for giving — , p. 349.

misdirection in charge to Jury, p. 346.

See Fabricating False Evidence ; Perjury.

FALSE INFORMATION—

giving — to a public servant, Ss. 177, 182, pp. 305, 311.
asking a public servant to do an illegal act is not — , p. 317.
suspicious as offenders is not — , p. 317. t

difference between — and false charge, pp. 312, 314.
statement in an affidavit, pp. 318, 352.
in petition of appeal, ib.
is income tax return, pp. 306, 345.
must be intentional, p. 307.

INDEX

41

FALSE INFORMATION— Contd.

no conviction for — when the complaint of theft is compromised, p. 316.

' statement made in answer to questions by investigating police officer whether
a, — p. 316.

— to screen offender, S. 201, p. 361.

— respecting an offence committed, S. 203, p. 365.

FALSE LIGHTS, MARKS OR BUOYS—
exhibition of — S. 281, p. 475.

FALSE MARK—

making a — upon receptacle containing goods to induce a wrong belief, S. 487,
p. 966 making use of such — , S. 488, p. 967.

FALSE PERSONATION—

— for purposes of suit or criminal prosecution, S. 205, p. 368.
fraudulent gain or benefit not essential for the offence of — , p. 369.
merely assuming fictitious name is not — , ib.

— at an examination, p. 821.

— of soldier, by wearing garb or token, S. 140, p. 220.

— of a juror or assessor, S. 229, p. 421.

FALSE REPORT—

— to the police regarding disappearance of a bullock, p. 317.
circulating — conducing to public mischief, S. 605, p. 1040.

FALSE RETURN—

— of the service of summons, p. 310.

FALSE STATEMENT—

making or publishing — in connection with election, S. 171G, p. 293.

— in memorandum of appeal, pp. 307, 318.

— on oath or affirmation, S. 181, p. 309.

— made in the course of judicial proceedings, p. 310.

— in an affidavit, p. 317.

— in a written statement, p. 360.

— in income-tax return, pp. 306, 345.

— in sale-deed of immoveable property as to consideration for sale p. 840.

— by a person legally bound to state the truth, S. 191, p. 335.

— may be made verbally or otherwise, S. 191 Explanation, ib.

— as to the belief or knowledge of a person, S. 191 Explanation 2, ib.

whether there can be different charges for different — in the same deposition, p. 346.

— made during police investigation under S. 164 Cr. P. Code, p. 362.

— before a sub-registrar, ib.

no conviction of a witness for — when retracted, ib.

— made in declaration which is by law receivable in evidence, S. 199, p. 359.

— in applications for execution, p. 360.

— in a declaration to be an offence, the declaration must be admissible, p. 360.
dishonest or fraudulent execution of deed of transfer containing of consideration
etc., S. 423, p. 839.

FALSE WEIGHTS AND MEASURES—

Set Weights and Measures.

FALSIFICATION—

— of account etc., by clerk, servant or officer, S. 477A, p. 945.
by aot or omission, p. 984.

must be made wilfully and with intent to defraud, p. 948.

FARUKHABAD RUPEE— •

— is Queen's coin, S. 230 illustration (e), p. 423.

FEAR—

circulating or publishing statements e£c., to cause— to the public, S. 505, p. 1040.

THE INDIAN PENAL CODE

41

FEAR OF INJURY—

— invalidates consent, S, 90, p. 130.

FEELINGS —

outraging religions — , S. 295A, p. 499.
wounding — Ss. 297, 298, pp. 503, 505.

FENCING—

— match with naked swords, p. 126.

game of — , if offence, S. 87, illustration, p. 124.

FICTITIOUS PERSON—

making a false document in the name of a — may be forgery, S. 464 Explanation 2
p. 905.

FICTITIOUS STAMPS—

using or making, etc. — , S. 263 A, p. 448.
definition of — , S. 263A (3), ib.

FIGHT—

— when an affray, S. 159, p. 269.

culpable homicide committed in sudden — not murder, S. 300, Exception 4, p. 519.
FINDING—

— of property when criminal misappropriation, S. 403, Explanation 2, p. 754.
FINE—

— as a punishment, S. 53 sixthly , p. 56.
rule as to the amount of — , S. 63, p, 64.
amount of — how to be fixed, p. 65.
daily — , ib.

— in case of joint offenders, ib.
procedure for recovery of — , pp. 63, 72.
sentence of imprisonment for non-payment of — , S. 64, p. 65.
description of imprisonment for non-payment of — , S. 66, p. 69.
limit to imprisonment for non payment of — when both imprisonment and fine
awardable, S. 65, p. 66.

limit to imprisonment in default of — applies to offences under special law, p. 68.
imprisonment for non-payment of — when offence punishable with fine only, S. 67,
p. 69.

termination of imprisonment for non-payment of — , S. 68, ib.

— imposed by Judge or Magistrate may be levied by his successor, p. 70.
termination of imprisonment on payment of proportional part of — , S. 69, ib.
refund of — , p. 70.

— how long leviable, S. 70, ib.

— recoverable from property even after death, S. 70, ib.

— whether recoverable from immoveable property after death, pp. 71, 72.

FIRE—

rash or negligent conduct with respect to — , S. 285, p. 479.
causing hurt or grievous hurt by — or heated substance, Ss. 324, 326, pp. 600, 604.
mischief by — or explosive substance, Ss. 435, 436, pp. 862, 863.
mischief by — with intent to destroy or make unsafe decked vessel, etc., S. 438,
p. 865.

FIREWORKS—

negligence with respect to — , p. 479.
letting off fire balloons is no offence, p. 479.

FISH—

— whether can be subject of theft, pp. 705, 706.

FOQD OR DRINK—

adulteration of— intended for sale, S. 272, p. 465/

. . . »

INDEX

43

FOOD OR DRINK — contd.

sale of noxious — , S. 273, p. 466.
whether tea or tea-dust is — , ib.

FOOTBALL—

causing accidental death in a game of — , if an offence, p. 125.

FORCE—

definition of — , S. 349, p. 649.

— must be in connection with human body, p. 650.
amount of — which a bailiff is justified in employing, p. 610.
compulsion as a defence, S. 94, pp. 134, 135.

FOREIGN LAW—

no enhanced punishment by reason of previous conviction under — , p. 89.

FOREIGN SOVEREIGNS AND AMBASSADORS—

— not triable by Indian courts, p. 8.

FOREIGN TERRITORY—

offences committed in — when triable in British India, Ss. 3, 4, pp. 9, 10.
committing depredations in — of any Power in alliance or at peace with the King,
S. 126, p. 211.

abetting the counterfeiting of coin in — , S. 236, p. 430.

FOREIGNERS—

extent of the liability of — , for offences committed in British India, p. 16.
abetment by — of offence in British India, p. 17.

FORFEITURE—

— is of four classes, p. 58.

— of property as a punishment, S. 53 fifthly, p. 55.

— of property used in committing depredation or acquired by depredation on
territories of power in alliance or at peace with the King, S. 126, p. 211,
S. 127, p. 212.

fraudulent removal or concealment of property to prevent its — , S. 206, p. 369.
fraudulent claim to property to prevent its — , S. 207, p. 371.
public servant disobeying direction of law to save property from — , S. 217, p. 396.
public servant framing incorrect record to save property from — , S. 218, p. 397.

FORGED DOCUMENT—

definition of — , S. 470, p. 930.
using as genuine a — , S. 471, ib. •

what is usuing, pp. 930, 931, 934, 935, 936.
user must be dishonest or fraudulent, p. 937.
nature of the user is not material, p. 934, 935.

it is not necessary that — should be used as evidence in Court of Justice,
p. 935.

production in response to summons from Courtis no offence, pp. 921, 936.
evidence in a trial for the offence, p. 932.
facts to be proved by prosecution, p. 935.
facts to be established by defence, pp. 933, 934.
separate conviction for forgery and using a — if legal, p. 934.
filing a forged sanad before settlement officer whether dishonest user of—, p. 938.
possession of — intending to use i£ as genuine, S. 474, p. # 940.
counterfeiting device or mark for authenticating — , S. 476, p. 941, S. 476, p. 943.
whether filing of copy is user of—, p. 912.

See Document ; False Document ; Forgery.
elements of — , prosecution must prjove, pp. 9141, 9191, 920.

FORGERY— •

definition of—, S. 463, p. 898.

criminal intention or knowledge necessary, pp. 920, 921.
meaning of ma1gng40f a document, p. 908.
meaning of * intent,to defraud, ' pp. 901, 903, 913.

44

THE INDIAN PENAL CODE

FORGERY — Contd.

general intention to defraud is enough, p. 901.
meaning of making a false document, S. 464, p. 905.

— under English law, pp. 903, 904.

attaching false description to one's name if — , p. 900.

— of a copy of a document, pp, 900, 912.

fabricating false certificate for permission to sit for an examination if — , pp. 901,
907.908.

signing a telegram in another's name if — . p. 901, 910.
altering a receipt to induce superior officer to refrain from illegal act whether — ,
p. 903.

altering a police report to screen one’s negligence whether — p. 903.
fabricating signatures or making false entries to conceal a previous fraud is — ,
pp. 904, 908.

incorrect framing of accounts to conceal liability whether-—, p. 904.
a man's signature of his own name may amount to — , S. 464, Explanation 1 #
pp. 906, 915, 916.
where not a — , p. 910.

making false documents in the name of a fictitious person may be — , S. 464,
Explanation 2, pp. 907, 915, 916.

giving false description of a man in a document whether — , p. 909.
fabricating police orders to secure a runaway wife is — ■, p. 910.
counterfeiting marks on a tree whether — , p. 912.

interpolation of name of attesting Witness after execution and registration of a
document if — , p. 913.

alteration in a deed to secure a plot of land to accused which was in his possession
if amounts to — , ib.

interpolating the words ‘ on demand ’ to a promissory note is not — , p. 914,
interpolating an additional prayer to a plaint in open Court whether — , ib.
fraudulently procuring a signature to an altered document if — , p. 914.

— by several persons, pp. 916, 917.
evidence in a case of — , p. 918.
of intention, p. 919.
of handwriting expert, p. 920.
similarity of handwriting, p. 928.
of accomplice, ib.
of thumb impression, p. 918.
joint trial, p. 919.
onus on prosecution, ib.

alternative charges under Ss. 466, 467 and 471, p. 926.
production of forged document in obedience to Court's order if, p. 921
facts to be proved by prosecution in a case of — , pp. <914, 919, 920.
prosecution for — how initiated, pp. 917, 918, 925.

making or possessing counterfeit seal etc., with intent to commit — , S. 472,
p. 974, S. 473, p. 975.

asking forgiveness is not an admission of- 1 , p. 927.

— of promissory note on unstamped paper, ib.
making of a false will of a living person, if — , p. 928.
mere antedating a will is not — , pp. 911, 928.
signing petition in the name of another if — , p. 903.
abetment of — , p. 171.

signing plaint to prevent suit from being barred by limitation on general
permission is not — , p. 911.

accused, neither a party nor present upon the occasion when the document
was forged, is not guilty of — , but of abetment, p. 917.

— to conceal carelessness or negligent act, p. 916.
punishment for — , S. 465, p. 917.

when the document is record of coutf or public register etc., S. 466, p. 955.
when the document is a valuable security, will etc., S. 467, p. 958.

. when the offence is committed for purpose of cheating, S. 468, p. 963.
when the offence is committed for purpose of harming reputation, S. 469,
p. 964. •

See Document ; Forged Document ; FHi.se Document

FOULING—

* — water of public spring or reservoir, S. 277, p. 469. •
— atmosphere, S. 278, p. 470, m «

INDEX

45

FRACTURE—

— of bone or tooth is grievous hurt, S. 320 seventhly, p. 596.

FRAUDULENT—

— removal, transfer, delivery or concealment of property to prevent its seizure,
S. 206, p.368.

— claim to property to prevent its seizure, S. 207, p. 371.

— suffering of decree or order, S. 208, p. 372.

— claim in a court of justice, S. 209, p. 372.

— obtaining of a decree or order or fraudulent execution of decree against a
person, S. 210, p. 373.

—prevention of debt being available for creditors, S. 422, p. 838.

—'execution of deed of transfer, S. 423, p. 839.

— release of demand or claim, S. 424, p. 840

— removal, concealment, transfer or delivery of property, S. 421, p. 837 ; S. 424,
p. 840.

— cancellation, destruction etc., of will, valuable security etc., S. 477, p. 943.

FRAUDULENT INTENT-^

to prove — evidence of similar acts may be given, p. 33.

FRAUDULENTLY—

definition of — , S. 25, p. 31. } ,

distinction between dishonestly and — , p. 32.

FUNERAL CEREMONIES—

disturbance to persons assembled for — , S. 297, p. 503.

GAMBLING—

— in public place whether nuisance, pp. 457, 458.

GANG OF DACOITS —

punishment for belonging to a — , S. 400, p. 747.
receiving property stolen from a — , S. 412, p. 802.

joining a — under threat whether an offence, S. 94, Explanation 1, p. 134.
act done under threat of instant death from a — is not an offence, S. 94, Explana-
tion 2, p. 134.

GANG OF THIEVES—

punishment for belonging to a — . S. 401, p. 750.
evidence of the offence, p. 751.
essential ingredients of the offence, ih
previous conviction admissible in^proof of the offence, p. 752
approver after his discharge is a competent witness, p. 752.

GARB—

wearing — of a soldier or sailor, S. 140, p. 220.
wearing — of a public servant, S. 171, p, 280.

GENDER—

masculine — includes female, S. 8, p, 20.

GESTURE—

making — to wound religious feeling, S. 298 p. 505
making— to insult the modesty o< woman, S. 509, p. 1044
— when amounts to an assault, S. 351, p. 631.

GIFT—

taking— etc., to screen offender or abandon criminal prosecution, S. 213, p. 387.
offering — etc., in considejation of screening offender, S. 214, p. 388.

GIRL—

procuraton of minor — for illicit intercourse, S. 366A, p. 667 #

importation of — under 21^ years from foreign country for illicit intercourse.

46

THE INDIAN PENAL CODE

GIRL—cowW,

S. 366 B, p. 668.

dedication of a — to a temple for serving as dancing girl amounts to disposal for
purposes of prostitution, p. 677.
selling etc., minor — for purposes of prostitution, S. 372, p. 674.
buying etc., minor — for purposes of prostitution, S. 373, p. 679.
kidnapping a — under 16 years, S. 361, p. 648.

GLANDERS—

negligent spreading of — , p. 463.

GOOD FAITH —

definition of — S. 52, p. 54.

— is a question of fact, ib.

— if presumed in a pleader uttering defamatory words, ib.
arresting without enquiry if — in Police officer, p. 55.
arresting after proper enquiry if — in Police officer, p. 55.

surgery with ordinary knife if— in uneducated Kabiraj or Hakim, ib. and p 572
acts done without — cannot be excused by reason of mistake of fact, p. 97.

— a necessary element for obedience to orders under mistake of fact*, p. 98
acts done in — pursuant to the judgment or order of court, S. 78, p. # 101.
acts done in — under mistake of fact, S. 79, p. 102.
acts done in — for benefit of a person without consent, S. 92, p. 132.
communication made in — , S. 93, p. f 33.

— when a defence in defamation, S. 499, exceptions 2, 3. 5 6 7 8 0 10

pp. 991, 992, 993.

— ( bona fide claim of right) a defence in theft, pp. 699, 702.

—a defence in mischief, pp. 845, 847.

— a defence in criminal trespass, pp. 873, 874.

GOODS—

— in S. 480 includes books, p. 955.

GOVERNMENT—

definition of — , S. 17, p. 21.

meaning of — in Ss. 255 to 263, S. 263A (4), pp. 443, 44$.
conspiracy to overawe — , S. 121 A, p. 197.
exciting disaffection against — , S. 124A, p. 201.

GOVERNMENT OF INDIA —

— may commute death sentence, S. 54, p. 59.

— may commute sentence of transportation, S. 55, p. 60.
definition of — , S. 16, p. 21.

GOVERNMENT STAMP—

counterfeiting — , S. 255, p. 443.

possessing instrument or material for counterfeiting — , S. 256, ib. -

whether possession of instruments by a newspaper proprietor for printing
an illustrated stamp catalogue is an offence, p. 444.
making or selling instruments for counterfeiting—, S. 257, ib.
sale of counterfeit — , S. 258, p. 445.
possessing counterfeit — for use, S. 259, ib.
using as genuine a — known to be counterfeit, S. 260, p. 446.
effacing writing from substance bearing— or removing from a document a stamp
used for it, Sf 261, ib. «

using — known to have been used before, S. 262, p. 447.
erasure if mark denoting that— has been used, S. 263, ib.

' selling an used — , S. 263, ib.

possessing, uttering, selling, etc., of fictitious—, S. 263A, p. 448.
possessing or making instruments for making fictitious—, S. 263A, ib.

1 V J&JH.1NVJIY

cannot be tried for offences done in public capacity, p. 7,
powers of to create new Courts of justice and limit the jurisdiction of existing

Courts. t%. ft k

INDEX

47

GOVERNOR GENERAL — eontd.

assault on — with intent to compel or restrain exercise of lawful power, S. 124,

p. 200.

GOVERNOR OF A PRESIDENCY—

assault on — with intent to compel or restrain exercise of lawful power, S. 124,

p. 200.

GRATIFICATION—

definition of — S. 161, Explanation, p. 272.
public servant improperly taking — , S. 161, p. 271.
scope or the meaning of — , pp. 272, 273.

taking or attempting to take — for corruptly influencing public servant, S. 162,

p. 268.

taking or attempting to take — for exercise of personal influence with public
servant, S. 163, p. 279.

abetment of ofiences under Ss. 162 and 163, S. 164, ib.

—in connection with the exercise of electoral right, S. 17 IB, p. 288.
taking or attempting to take — to screen an offender or abandon prosecution,
S. 213, p. 387.

giving — etc., in consideration of screening offender, etc., S. 214, pp. 388, 389.

— etc., to help in the recovery of stolen property, S. 215, p. 391.
attempt to take a — , p. $92.

See Bribe.

GRIEVOUS HURT—

what is — ■, S. 320, p. 596.

meaning of voluntarily causing — , S. 322, p. 597.
punishment for voluntarily causing — , S. 325, p. 601.

intention and knowledge are the essential ingredients of the offence,

p. 602.

to establish the charge, not necessary to prove that the accused struck
the complainant so severely as to endanger the latter’s life, ib.
a violent blow inflicted upon the body indicates an intention of grievous
hurt, ib.

proof of being in hospital for 20 days is not equivalent to proof of grievous
hurt, p. 603.

writing and — , liability, pp. 77, 83.

act not intended or known to cause — done by consent, S. 87, p. 124.
offence of — in cases where even <?eath is caused, p. 603.
rupture of spleen when — pp. 595, 603.

separate sentences for rioting and — whether legal, pp. 603, 604, 776.
separate sentences are illegal where the commission is under S. 149, p. 604.
voluntarily causing — by dangerous weapons or means, S. 326, p. 604.
voluntarily causing — to extort property or valuable security or to constrain to
an illegal act, S. 329. p. 607.

voluntarily causing — to extort confession or to compel restoration of property,
S. 331, p.609.

voluntarily causing — to deter public servant from his duty, S. 333, p. 637.
voluntarily causing — on provocation, S. 335, p. 614.

causing— by act endangering life or personal safety of others, S. 338, p. 637.
kidnapping or abducting in order to subject a person to—, S. 367, p. 689.
extortion by putting a person in fear of — , S. 386, p. 725.
putting a person in fear of — in order to commit extortion, S. 387, ib.

— at the time of committing robbery or dacoity, S. 397, p. 742.
causing or attempting to c^use »~ while committing lurking house-trespass or
housebreaking, S. 459, p. 894.

— caused or attempted by any of the associates jointly committing lurking house-
trespass or housebreaking by night, S. 460, p. 895.

GUN —

negligence with respect t9 a loaded—, pp. 479.

48

THE INDIAN PENAL CODE

GUARDIAN —

act done to child or lunatic for its benefit by consent of — , S. 89, p. 130
act done for benefit without consent of — , S. 92, pp. 134, 135.

HABITUAL—

—dealing in slaves, S. 371, p. 674.

— dealing in stolen property, S. 413, p. 804.

HANDWRITING—

conviction for perjury upon comparison of — , pp. 345, 346.
conviction for forgery upon comparison of — , p. 920.

HANDWRITING EXPERT—

conviction for forgery solely upon the evidence of — not safe, p. 920.
opinion of — not final, ib.

HARBOUR—

definition of — , S. 216B, p. 395.

HARBOURING—

— prisoner of State or War, S. 130, p. 213,

— persons hired for an unlawful assembly, S. 157,. p*. 267.

— offender with the intention of screening him from punishment, S. 2f2,jg>. 385.
— offender who has escaped from custody or whose apprehension has been ordered,
S. 216, p.393.

giving meal to a proclaimed offender is not — him, p. 394.

— robbers and dacoits for facilitating the commission of robbery or dacoity or
for screening them, S. 216A, p. 395.

husband or wife not punishable for — , S. 212, Excepn., S. 216 Excepn., S. 216A
Excepn., pp. 386, 395.
meaning of — , S. 216B, p. 395.

HARM—

act likely to cause — done in good faith to prevent other — , S. 81, p. 108.
act causing slight — is no offence. S. 95, p. 136.

forgery with intent that the forged document shall — the reputation of any party,
S. 469, p. 930.

imputation to — reputation, S. 499, p. 990.

meaning of — to reputation in the offence of defamation, S. 499, Explan.,4,
ib.

HATRED—

bringing into or exciting — against Government, S. 124A, p. 201.
promoting or attempting to promote — between classes, S. 1 53 A, p. 261.

HEAD—

permanent disfiguration of — is grievous hurt, S. 320 sixthly , p. 696.

HEALTH—

offences against public — , Chap. XIV, p. 453.

HEATED SUBSTANCE —

See Fire.

• •

HELPLESS PERSONS—

breach of contract to attend on or supply wants of — , S. 491, p. 1011.

HIGH COURT—

— is a superior Court of Record, p. 18.

— can punish contempt of Court, ib.

if can commit on a summary proceeding for contempt of Mofussil Court, pp. 18,

% 417.

judges of — not triable for acts done in public capacity, p. 7.

INDEX

49

HIGH SEAS —

offences committed on — , p. 8.

HIGH WAY —

penalty for robbery on — between sunset and sunrise, S. 392, p. 732.

HIRING —

—or conniving at hiring of persons to join unlawful assembly, S. 150, p. 256.
being hired or offering or attempting to be hired to join unlawful assembly, S. 158,

p. 268.

— of minor girl for prostitution, S. 373, p. 679.

HOMICIDE —

meaning of — , p. 508.
accidental — , p. 607.
justifiable — , ib.

definition of culpable — , S. 299, p. 506.

difference between English and Indian law on culpable — , p. 508.

See Culpable Homicide.

HORSE —

killing, poisoning, maiming or rendering useless any — , S. 429, p. 855.
HOUSE —

mischief by fire with intent to destroy — , S. 436, p. 863.
what is a part of a — , S. 445, Expln, p. 878.

HOUSEBREAKING —

definition of — , S. 445, p. 877.

— by night, S. 446, p. 879.
attempt to commit — , p. 893.
punishment for — , S. 453, p. 887.

when committed for theft or offence punishable with imprisonment S. 454,

p. 888.

when committed after preparation for hurt, assault or wrongful confine-
ment, S 455, p. 889.

penalty for grievous hurt whilst committing — , S. 459, p. 894.
punishment for — by night, Ss. 456-458, pp. 889, 891, 893.

liability of all persons jointly concerned in — by night when death or grievous
hurt is caused by one of them, S. 460, p. 895.

See Criminal Trespass ; Housebreaking bv Night.

HOUSEBREAKING BY NIGHT —

definition of — , S. 446, p. 879.
punishment for — , S 456, p. 889.

when committed for committing theft or offence punishable with imprisonment,
S. 457, p. 891.

when committed after preparation made for hurt, assault or wrongful restraint,
S. 458, p. 893.

when any of the ass<*iatds jointly concerned causos or attempts to cause death
or grievous hurt, S. 460, p. 895.

HOUSE-TRESPASS—

definition of — , S. 442, p. 874.

introduction of any part of offender's body enough, S. 442 Expln., ib.
putting hand into a hole in wall without putting it through hole is not
entry, p. 875.

getting upon roof hot sufficient, p. 883.
entering in a verandah may be an attempt, ib.
criminal intent and not mere entry necessary, p. 875.
unlawfully remaining to commit offence after lawful entry is offonce, p. 872*
entering a house to attach property of a third person is—, p. 876,

,.D ‘

30

THE INDIAN PENAL CODE

HOUSE-TRESPASS— contd.

ex-communicated wife entering husband's house to ask for maintenance if
commits — , p. 876.

— with intent to commit adultery, pp. 885, 886.

conivance of husband if a defence, p. 886.
punishment for — , S 448, p. 882

when committed in order to commit offence punishable with death, S. 440.
p. 884.

when committed in order to commit offence punishable with transportation.
S. 450, ib .

when committed in order to commit offence punishable with imprisonment
for 2 years, S'. 451, p. 885.

when committed after preparation for hurt, assault or wrongful restraint
S. 452, p. 886,

HUMAN BODY—

offences affecting — , Chap. XVI, p. 506.

— living or dead cannot be subject of theft, p. 704.

HURT-

definition of — , S. 319, p. 594.

caused in sport and not intended to cause bodily harm, p. 126.
cases of — where a poison is killed when death was neither intended nor was
to be caused by the act, pp. 515, 594, 595.
death caused by ruptured spleen, pp. 515, 595.

— when it is grievous, S. 320, p. 596.
meaning of voluntarily causing — , S. 321, p. 597.
punishment for voluntarily causing — , S. 323, p. 598.

— prosecution if abates on death of complainant, p. 598.
illegal to allow the complainant's son to come on the record and proceed with
inquiry, ib .

when caused by dangerous weapons or means, S. 324, p. 600.
when caused to extort property or to constrain to an illegal act, S. 327,
p. 605.

when caused by means of poison, etc./* with intent to commit an offence,
S. 328, p. 606.

when caused to extort confession or to compel restoration of property,
S. 330, p. 608.

when caused to deter publijc servant from duty, S. 332, p. 610.
when caused on provocation, S. 334, p. 613.

when caused by rash or negligent act endangering life or personal safety
of others, S. 337, p. 616.

when caused in committing robbery, S. 394, p. 734.
theft after preparation made for causing — # S. 382, p. 717.
mischief after preparation made for causing — , S. 440, p. 866.
house-trespass after preparation made for causing — , S. 452, p. 886.
lurking house-trespass or housebreaking after preparation made for causing — ,
Ss. 455, 458, pp. 889, 893. *

See Grievous Hurt.

HUSBAND AND WIFE—

harbouring or concealment of — by one consort, Ss. 2*2, 216, 216A, pp. 385 393
395.

theft as between — , pp. 709, 710.

marriage by — during^tho life time of consort, S. 494, p. 973.
when husband is guilty of rape upon wife, S. 375, excepn., p. 682.
whether death of husband is injury to wife, p. 52.
v whether husband liable for criminal misappropriation by wife, p. 758,

See Adultery ; Bigamy ; Marriage.

<

IDOL—

meaning of defiling an—, p. 498.

%bhisekam if defiling an — , p. 499,

INDEX

51

IGNORANCE OF LAW—

See Mistake of Law.

ILLEGAL —

definition of — , S. 43, p. 51.

—order by public servant, S. 210, p. 400.

ILLEGAL COMMITMENTS—

—for trial, S. 220, p. 401.

ILLEGAL GRATIFICATION—

— taken, by public servant, S. 161, pp. 271, 272.

—for inducing or influencing a public servant, Ss. 162* 163, 164, pp. 278, 279.
taking or offering — to conceal offence or scroen offender, Ss. 213. 214 bo 387
388, 389. *

taking— for help in recovering stoleh property, S. 215, p. 391.

—in election, S. 171B, p. 288.

*

ILLEGAL OMISSION—
what is — , p. 39.

— is included in words of the Code referring to acts, S. 32, ib.

— by a village Magistrate, ib.

no — by village chowkidar if he does not prevent the offence of extortion p 40
abetment by — , p. 163. '

— not necessary to constitute conspiracy for waging war against the King, S 121A
Evpln., p. 197.

ILLEGAL PAYMENTS—

— in connection with olection, S. 171H, p, 294.

ILLEGAL PURCHASE OR BID—

— for property offered for sale by authority of public servant S. 185, p. 320.
ILLICIT INTERCOURSE—

abduction or kidnapping of a woman to compel her to — , S. 366, p. 662.
forced or seduced to — , S. 366, pp. 662, 666.

procuring girl under 18 years to scduco her to — , S. 366A, p. 667.
importation of girl under 21 years for forcing or seducing to — , S. 366B, p, 668
disposing of minor to be used or employed for — , S. 372, p. 674.
moaning of — , S. 372, Expin., II, ib.

obtaining possession of minor under 18 years for — , S. 373, p. 679.
enticing, etc., a married woman for — , S. 498, p. 983.

ILLUSTRATIONS—

— no part of the sections, p. 6.

— are helpful in application of the Section, ib t

IMPRISONMENT—

— as a punishment, S. 53 fourthly, p. 56.
two kinds of — , S. 53 fourthly , ib.

rigorous — to a prisoner under sentence of transportation, S. 58, p. 61.
when transportation may be awarded in place of — , S. 59, ib.

— may bo wholly or partly rigorous or simple, S. 60, p. 63.

— for non-payment of fine, S. 64! p. 65. *

rules regulating amount and nature of— in default of fine, Ss. 65, 66, 67 dd 66
69. J.

limit to — for default of fine applicable to special law, p. 68.
termination of— on payment of fine or a proportion thereof, Ss. 68, 69, pp. 69, 70.

» •

# See Criminal Trespass ; Fins,

INCANTATION—

death caused under Unreal of — whether murder, p, 537,

52

THE INDIAN PENAL CODE

INCITEMENT—

statement on report with intent to cause — to class or community, S. 505, p. 1040.
INDIAN ARMY ACT—

person subject to — , S. 131, explanations, p. 215.
not liable under the Code, S. 139, p. 219.

INDIAN EXTRADITION ACT—

powers of magistrates under—, p. 12.

— not applicable to European British subjects, ib.

INDIAN MARINE SERVICE—

provisions of the Code applicable to—, S. 138A, p. 219.

INDIAN PENAL CODE—

draft of the — , p. 1. *

preamble to the — , p. 2.
extent of the — , pp. 2, 3. ;V
conflict between — and special law, p. 18.

— when applicable to extraterritorial offences, S. 4, p. 13.

— when applicable to acts done in open sea, p. 8.
extraterritorial operation of the — S. 3, p. 9.
offences committed prior to — , p. 1.

INDIAN PRINCES—

— exempted from the operation of the Code, p. 8.

INDUCEMENT—

— by deceiful means constitute the defenition of abduction, S. 382, p. 657.
— to woman to go for illicit intercourse, S. 366, p. 662.

— to minor girl under eighteen for illicit intercourse, S. 366A, p. 667.
merely giving shelter to a girl is not — , p. 668.

— of person put in fear — to deliver property, S. 383, p. 718.

— in cheating, S. 415, p. 808.

INFANTS—

See Child.

INFECTIOUS DISEASE—

negligent or malignant act likely to spread — , Ss. 269, 270, pp. 462, 464.

Small pox, p. 462.

Cholera, p. 463.

Plague, ib. f

Glanders, ib.

Syphilis, ib.

duty of a person in charge of — , p. 462.
disobedience to quarrantine rule during prevalence of — , S. 271, p. 464.

INFIRMITY—

causing — is hurt S. 319, p. 594.

INFORMATION—

omission to give — to a public servant by a person legally bound to give it, S. 170,
p. 303.

false — to screen offender, S. 201, p. 361.

omission to give — of offence by person bound to inform, S. 202, p. 365.

failure by Police Patel to give — of arrival of dacoits at a village, ib.
meaning of giving — , p. 366. ,

furnishing false — to public servant, Ss. 177, 182, pp, 305, 311.

mere belief is not — , p. 315. , t

giving false — respecting offence committed, S. 203, p. 365.
causing hurt or grievous hurt to extort — , Ss. 330, 331, pp. 608, 609.
wrongful confinement to extort — , S. 348, p, 630,

«

' See False Information. .

INDEX

53

INJUNCTION—

continuance of nuisance alter — to discontinue, S. 291, p. 486.
disobedience of— -under Sec. 144, Cr. Pr. Code, S. 188, pp. 332, 333.

INJURY—

meaning of — , S. 44, pp. 51, 479.

loss of service is not — , p. 52.

death of husband if — to wife, ib.

false charge before Police is — to accused, ib.

receiving money for speaking favourably to authority is not — , ib.
threat to ruin by cases is not — , ib.

public servant disobeying law with intent to cause — to any person, S. 166, p. 281.
threat of — to public servant, S. 189, pp. 333, 334.

threat of — to induce a person to refrain from applying for protection to public
servant, S. 190, p. 334.

putting a person in fear of — in order to commit extortion, S. 385, p. 724.

— in order to cause alarm, S. 503, p: j 1036.

INNOCENCE—

onus of proving— when on accused, Ss. 486, 487, 488, pp. 963, 966, 967.

INOCULATION—

— if an offence, p. 462.

INSANE—

See Lunatic.

INSANITY—

See Lunatic.

INSTIGATE—

meaning of — , S. 107 Expin. , 1, p. 159.

INSTIGATION—

meaning of — , pp. 161, 162.

refraining to dissuade is not — , p. 161.
advice per se is not — , p. 162.

deliberate absence from unlawful assembly is not — , p. 164.

— may be by assent, p. 161.
holding stake in prize fight if — , ib.

— by encouragement, p. 162.
may be direct or indirect?, p. 161.
abetment by — , S. 107, pp. 159, 161, 162.

—of unknown person, p. 161.

— through intervention of third person, ib.

See Abetment.

INSTRUMENT FOR WEIGHING—

fraudulent use of false — , S. 264, p. 449.

See Weights and Measures.

• •

INSTRUMENTS FOR COINING—

what are — , p. 429. m-

making, selling or possessing — for counterfeiting coin, Ss. 233, 234, 235, pp. 426,
427.

, i

INSUBORDINATION—
meaning of — , p. 219.

abetment of— by sailor # or soldier or officer of the Army or Navy, S. £38, ib.

54

THE INDIAN PENAL CODE

INSULT—

intentional — to public servant sitting in judicial proceeding, S. 228, p. 416.
refusal to answer question, p. 420.

statement in transfer application that complainant is friend of magistrate,
p. 419.

chewing betel, p. 420.

— to the religion of any person, Ss. 295, 297, pp. 497, 503.
entry into another's property with intent to — , S. 441, p. 867.
intentional — with intent to provoke breach of peace, S. 504, p. 1038.

mere discourtesy and bad manners no offence, p. 1039.

— to the modesty of woman by word, gesture, etc., S. 509, pp. 1044, 1045.

INTENTION—

what is criminal — , pp. 105, 106.

difference between motive and — , pp. 106, 560.

— not material in certain statutory offence, p. 106.

— to defraud, S. 25, pp. 31, 32, 913.
mere — is no offence, p. 1047.

act done by several persons in furtherance of common — , Ss. 34, 35, pp. 40, 45.
— is involved in act done voluntarily, S. 39, p. 47.

— is assumed when consequences known or believed to be likely to result, S. 39,
p. 48.

harmful act done without criminal — , S. 81, p. 108.

is an essential ingredient in the offence of sedition, pp. 204, 205.

in the offence of wearing a garb, S. 140, p. 220.

by a public servant, S. 171, p. 286.
in the offence of theft, S. 378, pp. 692, 697, 698.

bona fide claim of right, pp. 699, 700, 845, 873.

taking need not be with — of retaining permanently, p. 698.
in criminal trespass, S. 441, pp. 867, 880.

distinction between — and knowledge, p. 873.
evidence of — in murder, pp. 509, 570, 592. 558, 559,

dishonest — , an essential element in the offence of concealment of property,
S. 424, pp. 840, 841.

INTENTIONAL INSULT OR INTERRUPTION—

— to public servant sitting in judicial proce ding, S. 228, p. 416.

coarse expression towards adversary within hearing of the Court if offence
p. 418.

INTENTIONAL OMISSION—

— by public servant to apprehend accused or convict, Ss. 221, 222, pp. 402, 403.
INTEREST—

forging an authority to receive—, S. 467, p. 924.

imputation for protection of one’s — is not defamation, S. 499, Excepn. 9, p. 991.

INTERPRETATION—

— of the code, p. 3.

INTERRUPTION—

intentional — to public servant sitting in Judicial proceeding, S. 228, p. 416.
impertinent threat to witness if offence, p. 420.
refusing to answer and walking out of court, ib.
reluctant and inconsistent evidence of witness, p. 420.

— in mischief, S. 429, p. 842, S. 430, p. 858.

— in prosecution under S. 366, p. 656.

— is immaterial in S. 363 excepting for awarding sentence, p. 660.
INTIMIDATION—

See Criminal Intimidation.

INTOXICATING DRUG—

See Drug,

INDEX

65

INTOXICATION —

act done in a state of — , S. 85, p. 121.

voluntary — no defence, pp. 122, 123,

offence requiring particular knowledge or intent committed in a state of — , S. 89 ,
p. 123.

consent by a person in a state of — f S. 90, p. 130.
right of private defence against act of person in state of — , S* 98, p. 142.
fraudulently or dishonestly causing a man to sign, etc., document who for— docs
not know the contents, S. 464 thirdly, p. 905.
misconduct in public by person in state of—, S. 510, p, 1046.

See Drunkenness. *

INTRUSION —

—on privacy of woman, S. 509, p. 1044.

INUNDATION—

punishment for mischief by causing — to public drainage, S. 432, p. 860.
INVESTIGATION—

— directed by law or Court of Justice is a stage of judicial proceeding, S. 193,
Explns. 2, 3, pp. 343, 344.

IRONICAL IMPUTATION—

— may amount to defamation, S. 499, Excepn. 3, p. 991.

IRRIGATION—

mischief by injury to works of — , S. 430, p. 856.

JOINDER OF CHARGES—

— in rioting, p. 238.

— in false statements in the same deposition, pp. 346, 348.

— in theft, pp. 695, 696.

JOINT ACTS—

— of several persons with common intention, S. 34, p. 40.
liability of co-operators for — constituting a single offence, S. 37, p. 46.
persons concerned in — may be guilty of different offences, S. 38, p. 47.
liability for — of members of unlawful assembly, Ss. 146, 149, 150, pp. 237, 251, 256,
liability for— of persons engaged in robbery and dacoity, Ss. 394, 396, pp. 734, 741,
liability for — of persons concerned in housebreaking or lurking house -trespass
by night, S. 460, p. 895.

— in forgery, pp. 916, 917.

JOINT OFFENDERS—

sentence of fine how to be awarded on — , p. 65.

JOINT PROPERTY—
theft of — , p. 707.

criminal misappropriation of — , p. 761.
criminal trespass on — , pp. 869, 870.

JOINT TRIAL:- *

— of abettor and the person abetted, p. 172.

— of a charge of criminal conspiracy to manufacture arms with a charge umfrer
Secs. I 9 -F and 20 of the *Arms Act, p. 190.

—in charges for perjury, pp. 346, 348.

— of a thief and receiver of stolen property, p. 696.

— of the scribe and attesting witnesses of an alleged forged document, p. 919.

— of author and printer of defamatory matter, p. 1035.

56

THE INDIAN PENAL CODE

JUDGE—

definition of—, S. 19, p. 22.

— is a public servant, S. 21, third, p. 24.
act of a — when no offence, S. 77, p. 99.

no protection when the act is wholly without jurisdiction, ib.
prosecution of a — , p. 100.

acts done under authority of— no offence, S. 78, p. 101.
privilege of— in uttering defamation, p. 1023.

JUDGMENT—

— when it is doubtful as to which of several offences is committed, S. 72, p. 84.

act pursuant to a — no offence, S. 78, p. 101.

publication of— no defamation, S. 499, Excepn. 4, p. 991.

JUDICIAL OFFICERS—
protection of—, p. 100.

JUDICIAL PROCEEDING—

meaning of — under English Law, p. 341.
explanation of — , S. 193, Expins., p. 343.

fabricating or giving false evidence in — , Ss. 192, 193, pp. 339, 343.
execution proceeding, whether — p. 342.

police investigation under S. 164, Cr. P. Code whether a — , p. 352.
public servant in — corruptly making report etc., contrary to law, S. 219, p. 400.
intentional insult or interruption to public servant sitting in—, S. 228, p. 416.
— does not end when sentence is passed but continues until prisoner is removed
or discharged, p. 421.

JUDICIALLY—

meaning of—, p. 100.

JURISDICTION—

—of British Indian Courts, p. 7.
doubtful— ,ib.

exercise of— by High Courts, ib.

—over offenders outside British India, p. 1 2.

1. Extradition —

(i) where offender escapes into Foreign State, p. 12.

(ii) where offender escapes into Native State, ib.

(iii) where offender escapes into British Dominions, ib.

2. Extra territorial jurisdiction--

<i) where offender is on land, p. 13.

(ii) wh srf offender is on high &as, ib.

a. Admiralty Jurisdiction, p. 14.

b. Piracy, p. 16.

— over foreigners, pp. 16, 17.

Admiralty— of High Courts, p. 15.

of Moffusil Courts, ib,
of Presidency Magistrates, ib.

JUROR—

— is a public servant, S. 21, cl. (6), p. 24.
personation of a—, S, 229, p. 421,

JURYMAN-
S' Juror.

JUSTICE—

offences against public— Chap. XI, p. 335, Ss. 1196*229, pp. 369-422. *
KABULYAT—

whether— is included within the language o‘f S. 423„p. 840#

tNDEX

5 1

KIDNAPPING —

— is of two kinds, S. 359, p. 047.

— from British India, S. 300, ib.

— from lawful guardianship, S. 301, p. 048.

offence analogous to child -stealing in English Law, ib.

essentials of the offence, p. 049.

ignorance of the age of minor no defence, ib.

abduction need not be forcible, pp. 649, 660.

accused must take active steps by persuasion or otherwise, ib.

taking of the minor is not confined physical taking, ib.

out of keeping of the lawful guardian, p. 652.

taking when complete, p. 651.

enticing, p. 655.

consent of minor immaterial, pp. 050, 055.

consent of guardian obtained on misrepresentation does not avail, pp. 650,
606.

intention immaterial except for awarding sentence, p. 600.
offence not a continuing one, pp. 651.
but abduction is a continuing offence, p. 057.
lawful guardian under Mahomedan law, p. 653.

mother marrying an outsider, minor daughter is not under the custody
of the mother, p. 052.
lawful guardian under Hindu law, pp. 052, 654.
lawful guardian under English law, ib.
lawful guardian of illegitimate children or orphans, ib.
temporary custody not lawful guardianship, p. 652.
temporary absence does not end lawful guardianship, p. 654.
no offence when minor driven out of parental roof, ib.
difference between — and abduction, p. 657.
abetment of — , pp. 656, 667.

misdirections in jury charge in a case of — , pp. 660, 662.

— by father of his married girl, pp. 652, 650.
punishment for — , S. 303, p. 58.

when committed in order to murder, S. 304, p. 600.
when committed with intent of secret and wrongful confinement, S. 365,
p. 661.

when the intent is to compel marriage, etc. of the kidnapped woman,
S. 300, p. 662.

when committed in order to subject the kidnapped person to grievous hurt,
slavery etc., S. 367 p. 669.

when the person kidnapped is a child under 10 years and the intention is
to steal from its person, S. 309, p. 671.
with a view to wronfgully conceal or confine a kidnapped or abducted
person, S. 368, p. 670.

•

KNOWLEDGE—

offence requiring a particular — when done in a state of intoxication, S. 80, p. 123.
— in culpable homicide how judged, pp. 513, 514.
gross negligence may amount to — , pp. 514, 515.

— of probable consequences of an act, p. 515.

death caused by an act without the requisite— is not culpable homicide, p. 515.
accepting risk, p. 514.

operation by unskilful hand, ib.

adult subjecting himself to emasculation, ib.

gripping and squeezing testicles, p. 515.

beating to death a person .believed to have been possessed by evil spirit, ib:

LABOUR—

unlawful compulsory — , S. 374, p. 672.

LAND— • -

extra-territorial jurisdiction over offences committed on — , p. 13.
liability of owner or ^occupier of^-on which unlawful assembly is held or riot
committed, S. lfil, p. 264.

68

THE INDIAN PENAL CODE

LANDHOLDER—

liablity of — or his agent or manager for unlawful assembly or riot, Ss. 164, 166,
156, pp. 264, 266, 267.

whether — liable even without the knowledge of the riot, p. 266.
failure by — to find a clue in a case of theft when directed by magistrate, p. 327.

LAND MARK —

mischief by destroying or moving etc., a — fixed by public authority, S. 434, p. 861.
LARCENY—

— is narrower than theft, p. 694.

points of difference between— and theft, pp. 698, 702, 703, 704, 706, 707, 708, 709,
710.

LATHI—

— if a deadly weapon, pp. 235, 260, 745.
LAVNI—

— is not necessarily an obscene song, p. 492.

LAW—

applicable of offences committed beyond the limit of the British Territories
Ss. 3 and 4, pp. 9, 10.

disobedience of direction of — by public servant with intent to cause iniurv to anv
person, S. 166, p. 281. J * y

mistake of — is, no defence, Ss. 76, 79, pp. 92, 102.
bona fide mistake of — if defence, p. 96.
ignorance of — newly passed if a defence, pp. 94, 95.

LAWFUL AUTHORITY—

contempts of — of public servants, Chapter X, p. 295.

resistance to taking of property by — of public servant, S. 183, p. 318.

resistance to taking without warrant or with illegal warrant, p. 319.

See Resistance ; Public Servant.

LAWFUL MEANS—

failure to use — to disperse unlawful assembly or suppress riot, Ss. 154, 155 156
pp. 264, 266, 267.

LAWFUL GUARDIAN—

meaning of — , S. 361 explanation, pp. 64$, 652, 653, 654.
under the Mahometan law, pp. 652, 653.

— of a Hindu widow, p. 654.

— of a Hindu married girl, p. 652.
meaning of * keeping of the — \ p. 654.
temporary custody does not oust the right of a — , p. 652.

— of illegitimate children or orphans, p. 652.

See Abduction ; Kidnapping.

LEASE—

copy of a — is a valuable security, p. 38. f
antedating a—, is a forgery, S. 464, ill. (d), p. 906.

LPGAL REMUNERATION—

meaning of — , S. 161, Expin., p. 272, *

LEGAL PRACTITIONERS ACT— * . •

abetment of an offence under — , p. 182.

joint trial of persons one of whom is a pleader under S. 181 of false statements
« in an enquiry under — , p. 348. • •

INDEX

69

LEGALLY BOUND—

meaning of—, S. 43, p. 51.

witness in a civil case is not— to sign deposition, ib.
what a person is — to give information of, p. 304.

person examined under S. 161, Cr. P. Code is not— to state the truth, p. 307.
accused is not — to state the truth, ib.

LIABILITY—

— of several persons for acts done in furtherance of common intention, S. 34,
p. 40.

in furtherance of common intention, S. 149, p. 251.

distinction between S. 34 and 149, pp. 44, 252, 253.

— of every person under the Code, S. 2, p. 7.

no — for offence by foreign sovereigns, ambassadors, alien enemies, Indian
princes etc., p. 8,

— of master for acts of servants, p. 9.

— of one for acts done by another, Ss. 34, 146, 149, pp. 40, 237, 251.

LIBEL—

contempt of High Court by — published out of Court is an offence under the
common law, p. 416.

difference between English and Indian Law of — , pp. 991, 996.
difference between — and slander, p, 996.

— against a corporation, p. 1001.

See Defamation.

LIEUTENANT GOVERNOR—

assault on - with intent to compel or restrain the exercise of any lawful power
S. 124, p. 200.

LIFE—

meaning of — , S. 45, p. 52.

rash or negligent act endangering of others, S. 336, p. 614.
causing hurt or grievous hurt by acts endangering — of others, Ss. 337, 338 pp
616, 617.

LIGHT—

exhibition of false — to mislead navigators, S. 281, p. 475.
mischief by destroying, moving or rendering less useful any— used as sea mark
S. 433, p. 861. 9

LIGHT-HOUSE—

mischief by destroying, moving or rendering less useful a—, S. 433, p. 861.

LIMIT OF PUNISHMENT—

— when offence is made up of several offences, S. 71, p. 73.

LIMITATION—

of realisation of fine, S. 70, p. 70.

of prosecution for infringement of trade mark, etc., pp. 960, 962, 965.

• »

LINE OF NAVIGATION—

danger, obstruction or injury to a public — , S. 283, p. 476.

LOCAL OR SPECIAL LAW—

definition of--, Ss. 41, 42, p. 50.

no exemption to a child under 7 years for offence under — , p. 112.
provisions of— not affected by the Code, S. 5, p. 17.

bleaches of— are offences within the meaning of certain sections of the^Code,
S. 40, p. 49. #

60

THE INDIAN PENAL CODE

LOCAL OR SPECIAL LAW— Contd.

abetment may be committed in respect of offences under — , S. 40. p. 60.
applicability of general exceptions to offences under — S. 40, p. 49.
criminal conspiracy with regard to offences under — , S. 40, ib.
no sentence of solitary confinement for offences under — , p. 86.
whether S. 79 applies to — , p. 102.

LOSING WRONGFULLY—

definition of — , S. 23, p. 28.

LOSS—

See Wrongful loss.

LOST PROPERTY—

liability of finder of — , S. 403, Explanation 2, p. 754.

LOTTERY—

keeping office for — , S. 294A, p. 492.

publishing any proposal for — , ib.

meaning of—, pp. 495, 496.

no scope for the exercise of skill in — f p. 493.

price for naming winners in a race is not — . p. 495.

publishing advertisement of — , ib.

what is not — , ib.

keeping a — , ib.

LUNATIC—

offences committed by — , S. 84, p. 114.
defence of insanity under English law, ib.
different kinds of, p. 115.

difference between legal and medical standards of sanity, pp. 116, 122.

issue of insanity must be tried before the trial of the accused, p. 120.

unsoundness of mind, how far an excuse, p. 116.

insane delusion, how far an excuse, ib.

presumption of sanity, p. 121

insanity due to drunkenness, p. 118.

homicide by ganja smoker, p. 117.

homicidal mania, p. 118.

proof of insanity, p. 119.

test of insanity, p. 116.

evidence of insanity must refer to the time of commission of offence, p. 120.

medical evidence, how far relevant, pp. 119, 120.

mere doubt of sanity is not sufficient, p. 120.

onus of proving insanity as an excuse is of. the accused, p. 119.

insanity at the time of trial is no excuse, p. 120.

act done for benefit of — is no offence, Ss. 89, 92, pp. 128, 132.

consent of — not valid, S. 90, p. 130.

right of private defence against the act of a — S. 98, p. 142.
abetment of offences committed by — , S. 108, Explanation 3, ill. (c). p. 167,
kidnapping a — from lawful guardianship, S. 361, p. 648.
causing a — to sign, seal or execute or alter a document, when forgery, S. 464
thirdly , p. 906.

breach of contract to attend on and supply wants of a — , S. 491, p. 972.

LURKING HOUSE-TRESPASS—

definition of — , S. 4A3, p. 876. •

— by night, S. 444, p. 877,

getting on the roof of another’s house, if — , p. 877.
punishment for — , S. 463, p. 887.

when committed in order to commit theft or offence punishable with
imprisonment, S. 464, p. 888.

when committed after preparation for hurt, assault or wrongful restraint,
S. 456, p. 889.

when grievous hurt is committed or death or grievous hurt is attempted,
S. 459, p. 894. *

« •

See Criminal Trespass ; House-area king.

INDEX

01

lurking house-trespass by night—

definition of — , S. 444, p. 877.
punishment for — , S. 456, p. 889.

when committed in order to commit theft or offence punishable with
imprisonment, S. 457, p. 891.
magistrate cannot split up offence, ib.
altering conviction from S. 457 to S. 456, p. 890.
identity of stolen article must be proved, ib.

when committed after preparation for hurt, assault or wrongful restraint.
S. 458, p. 893.

when any of the associates jointly concerned causes or attempts to cause
death or grievous hurt, S. 460, p. 895.

See Criminal Trespass; Housebreaking.

MACHINERY — 4

rash or negligent conduct with respect to — , S. 287, p. 481.
dangerousness of — is a question of degree, p. 482.

MAGISTRATE—

when — is a * Judge*, S. 19, ill. (6), p. 22.
when — is not a * Judge ', S. 19, ill. ( d ), ib.

MAHOMEDAN—

— wife may be guilty of theft of her husband’s property, p. 710.
validity of — marriage — , p. 974.

— male cannot be convicted of bigamy, p. 973.

MAIMING—

meaning of — , p. 854.

wounding i9 not necessarily — p. 855.
cutting off the ears is — p. 856.
mischief by — animal, Ss. 428, 429, pp. 853 854,.

MAINTENANCE—

an order for payment of — is not a conviction for an offence, p. 50.

MALICE—

meaning of, p. 401.

absence of probable cause does not imply — in law, p. 377.

— not an essential ingredient in th® offence of wrongful confinement, p. 623.
what is — " aforethought ", pp. 519, 520.

— may be express or implied, p. 520.

— in defamation, 1014.

MALICIOUS PROSECUTION—

in an action for — judgment of acquittal not sufficient to prove falsity of accusa-
tion, p. 381.

MALICIOUSLY—

meaning of — , p. 401.

a public servant — making report etc. in judicial proceeding contrary to law, 5. 219,^
p. 400. ‘

person in authority — committing person in trial or confinement knowing that he is
acting contrary to law, S. 220, p. 401.

MALIGNANTLY—

meaning of— , p. 260. •

— doing an act likely to spread infectious disease, S. 270, p. 464.

MAN—

definition of— S. 10, p. 2o.

THE INDIAN PENAL CODE

MANAGER—

liability of — for riot respecting land committed for the benefit of owner or occupier
S. 156, p. 267.

failure by— *to give notice of an unlawful assembly, Ss. 154, 155, pp. 264, 266.

MANSLAUGHTER—

definition of — p. 569.

English law of — not applicable in India, pp. 508, 550, 569.

MAP OR PLAN—

— is a document, S. 29, ill., p. 36.

MARINE SERVICE —
MARK—

See Indian Marine Service.

exhibition of false — to mislead navigator, S. 281, p. 475.

counterfeiting— used for authenticating documents or possessing a counterfeit —
with dishonest intent, S. 475, p. 941, S. 476, p. 943.
making false — upon receptacle containing goods to deceive a public servant or
any person, S. 487, p. 966.
making use of such false — S. 488, p. 967.
counterfeiting any — used by a public servant, S. 484, p. 962.

See False Lights, Marks of Buoys.

MARRIAGE—

between Kayastha and Dome if valid, p. 984.
forging register of — , S. 466, p. 922.

the register may be a private one, p. 923.
offences relating to — Chap. XX, p. 972.

causing cohabitation by deceitfully inducing a belief of lawful — , S. 493, p. 972.
— during the life-time of husband or wife, S. 494, p. 972.

no offence where marriage with husband or wife declared void, S. 494,
Excep., p. 973.

nor where previous husband or wife is absent and not heard of as alive for
7 years, S. 494, Excep., p. 973.

— during the life-time of husband or wife by concealing previous marriage, S. 495.
p. 977.

fraudulently going through a — ceremony without lawful — , S. 496, p. 978.
previous — must be strictly proved in cases of bigamy, adultery or enticing,
pp. 974, 981, 986.

offence of bigamy complete, even if subsequent — is invalid, p. 974.
kidnapping or abducting woman to compel her — , S. 366, p. 662.
meaning of — in S. 366 is the same as in S. 494, p. 665.

— after apostacy of husband, pp. 975, 97b.

bona fide belief that husband or wife is dead whether a good defence, p. 977.
long delay in prosecution by husband whether a condonment of offence against —
p. 989.

publishing banns of — , p. 1048.

in offence against— complaint by aggrieved person necessary, pp. 973, 979, 983.

— by an infant, p. 113.
proof of — amongst Hindus, p. 975.

amongst Mahomedans, pp. 975.
amongst Parsees, p. 976.
amongst Jews, ib.

.. amongst Christians, ib.

* «

MARRIED WOMAN—
w adultery with — , S. 497, p. 978.

enticing or taking away or detaining a — \yith. criminal intent, S. 498, p. 983.
complaint of husband necessary for prosecution, ib.
wife's complicity not material, p. 988.

kidnapping or abducting a — to compel hei* marriage, 'S. 366* p. 662.
MARTIAL LAW—

alien enemies in respect of acts of war triable under — and not by ordinary criminal
courts, p. 8. # i

INDEX

03

MASCULINE —

— includes feminine, S. 8, p. 20.

MASTER —

if liable — for servants* acts, pp. 9, 107.
statutory liability of — for acts of servants, ib.
license cases, ib,
public nuisance, ib,

liability of — for rash driving of servant, pp. 485, 473, 474.
liability of— for theft committed by servant, p. 703.
servant taking away goods in lieu of wages is technically liable, ib.
servant not liable for mischief if he does not share the intention of — , p. 847.
servant making false representations and obtaining money from the manager of —
is guilty of cheating, p. 784.

theft by clerk or servant of property in possession of — , S. 381, p. 714.
MAXIMS—

actus non facit reum, nisi mens sit rea, p. 105.
de minimis non curat lex , p. 130.
eundo morando et redundo, p. 101.
furiosus furire solum punilur , p. 114.
ignorantia facit excusat, p. 96.
ignoratia juris non excusat , p. 93.

ignorantia juris quod quique scire tenatur neminem exc usat , ib.

non cumentum , p. 454.

salus rei publicae suprema lex , p. 455.

sic utere tuo ut alienum non loedus, ib.

volenti non fit injuria , p. 125.

sine qua non, p. 560.

MEASURES—

See Weights and Measures.

MEDALS—

— are not coins, S. 230, ill. (s), p. 423.

MEDICAL PRACTITIONERS—

— to claim exemption must have competent skill and act with due care and
attention, p. 127.

— to claim exemption need not have a regular medical education, p. 128.

— when liable for negligence, pp. 127, 128.
degree of skill expected in — , p. 128.

MEDICINE— i

adulteration of — , S. 274, p. 468.
sale of adulterated — , S. 275, ib.
sale of a — as a different medicine, S. 276, p. 469.

MEMBER OF COUNCIL—

assault on— with intent to compel or restrain exercise of lawful power, S. 124,

p. 200.

MEMBER OR JOINT—

privation of any — is grievous hurt, S. 320 fourthly, p. 596.

destruction or the permanent impairing of the powers of any— is grievous hurt,^
S. 320 fifthly , ib,

MERCHANT—

criminal breach of trust by—, S. 409, p. 784.

MERCHANT VESSEL-

liability of master of— for concealment of deserter, S. 137, p. 218.

MERGER—

doctrine of — has no plice fn criminal law, p. 999.

64

THE INDIAN PENAL CODE

MERITS —

opinion respecting — of public performance when not defamation, S. 499, Excepn.
0, pp. : 992, 1017.

MILITARY COURT-MARTIAL —

trial before a — is a judicial proceeding, S. 193, Expin., p. 344:

MINOR —

kidnapping a — from lawful guardianship, S. 301, p. 048.
consent of the — no defence, p. 665.

— in rape, S. 375, p. 082.

procuration of — girl for illicit intercourse, S. 306,- A, p. 007.
disposing of — for purposes of prostitution, etc., S. 372, p. 074.
obtaining possession of — under 18 years for purposes of prostitution, etc., S. 373,
p. 079.

See Child.

MINT—

causing coin issued from — to be of different weight or composition from that
fixed by law, S. 244, p. 437.
unlawfully taking coining instrument from — , S. 245, ib.

MISAPPROPRIATION—

dishonest — of moveable property, S. 403, p. 754.
dishonest — for a time, S. 403, Expln. 1, ib.

— of property found accidentally, S. 403 Expln. 2, ib.

dishonest — of property possessed by deceased person at the time of his death,
S. 404, p. 762.

distinction between — , cheating and criminal breach of trust, pp. 755, 809.
distinction between—, and receiving stolen property, p. 755.

See Criminal Misappropriation.

MISCARRIAGE—

causing — in ordinary cases, S. 312, p. 583.

woman causing — herself, S. 312, Expln., ib.

causing — without woman’s consent, S. 313, p. 585.

causing death by act done with intent to cause, — S. 314, p. 580.

causing death in attempt to procure— without woman's consent, S. 314, ib.

meaning of — , p. 584.

MISCHIEF—

definition of — , S. 425, p. 842. «.

must be done to property belonging to aonther, p. 843.

intention to cause wrongful loss is essential, pp. 843, 858, 803.

may be committed by act affecting one's own property, S. 425, Expn. 2, ib.

property must be tangible, p. 849.

injury must be physical from physical cause, p. 848.

damage need not be of destructive character, pp. 844, 849.

no offence when bona fide claim of right, pp. 845, 846, 858.

mere assertion of a claim of right not sufficient answer, p. 840.

mere negligence does not constitute the offence, pp. 840, 853.

change means physical change, p. 848.

destruction of easement is no offence, p, 849.

— by cutting bund, pp. 845, 858, 859.

— by cattle trespass', p. 843. 1

— by digging up graves to extend cultivation, pulling down obstruction on a
i . public road is not — , p. 844.

throwing down a show amongst Brahmin? seated to caste dinner is not — , p. 848.
cutting and removing bamboo if — ib.

cutting and removing dead jackfruit tree if — , pp, 847, 848, 849.
destroying fish by diverting water from river is—, ib.
tearing of postal receipt is — , p. 849.

owner if liable for — caused by negligence of contractor, p. 847.

•"^rvant if liable for — if he acts bona fide without dishonest intention according to
master's orders, ib .

INDEX

65

MISCHIEF —Contd.

summary trial for — , p. 851.

separate conviction for — and theft if good, p. 852.

principle underlying punishment of different degrees for different kinds of — , ib.
punishment for — , S. 426, p. 851.

acquittal on a charge of mischief if a bar to trial under S. 378, or S. 147, pp. 851,
853.

when damage caused amounts to fifty rupees or upwards, S. — 27. p. 852.
when it consists in killing or maiming animal of the value of ten rupees,

S. 428, p. 854.

wounding is not necessarily maiming, p. 855.

when it consists in killing, maiming etc. any elephant, camel, mule, buffalo,
bull, cow or ox of any value or any other animal of the value of 50
rupees or upwards, S. 428, p. 855.

when it is committed by doing injury to works of irrigation or by wrong-
fully diverting water, S. 430, p. 856.

— essential ingredients of such offence, p. 857.
obstruction as of right is no offence, p. 845.
landlord interfering with water supply, p. 868.

when it is committed by rendering impassable or less safe public road,
bridge, river or channel, S. 431, p. 859.
when it is committed by causing inundation or obstruction to public
drainage attended witli damage, S. 432, p. 860.
when it is committed by destroying, moving or rendering Jess useful any
light-house or sea-mark, S. 433, p. 861.
when committed by destroying or moving, etc. a landmark fixed by public
authority, S. 434, ib.

when committed by fire or explosive substance with intent to cause damage
of 100 rupees or in case of agricultural produce 10 rupees, S. 435, p. 862.
when committed by fire or explosive substance with intent to destroy
house, etc., S. 436, p. 863.

common motive must be found to support a conviction under Ss. 4361 148,
p. 864.

— conviction on inadmissible evidence, ib.

when committed to a decked vessel or vessel of burden, etc. with intent or
knowledge of destroying or rendering unsafe, Ss. 437, 438, p. 865.
when committed after preparation made for causing death or hurt or
wrongful restraint, S. 440, p. 866.

breaking open or unfastening closed receptacle with intent to commit — , Ss. 461,
462, pp. 896, 897.

committing — in respect to will, authority to adopt or any valuable security, S. 477,
p. 943.

MISCONCEPTION —

no trial for — under the code, p. .106.
consent under — of fact is invalid, S. 90, p. 130.

MISCONDUCT —

voluntarily causing hurt for detection of — , S. 330, p. 608.

grievous hurt for — , S. 331, p. 609.

— in public by a drunken person, S. 510, p. 1046.

MISFORTUNE —

act done by — when no offence, S. 80, p. 105.

MISTAKE OF FACT—

act done by reason of — not an offence, Ss. 76, 79, pp. .92, 102.

— when not a good defence, p. 97.

—as well as of law, p. 98.

belief in legal justification under — excuses offence, S. 79, p. 102.
belief in justification under — whether a defence to an offence under special or
local law, p. 102.

MISTAKE "OF LAW—

— is no excuse for an offence, Ss. 76, 79, pp. 92, 102.

— may be sometimes an, excuse, p. 95.

may be considered in mitigation of punishment, pp. 94, 95.

66

THE INDIAN PENAL CODE

MISTAKE OF LAW — Contd.

— newly enacted if an excuse, pp. 94, 95.

— is a ground of pardon though not of acquittal, p. 95.

MISTRESS—

permanent — may be regarded as wife, p. 34.

MOCK BIDDING—

— at an auction sale held by authority of public servant, S. 185, p. 320 .
MONEY—

forging an authority to receive or deliver any — , S. 467, p. 924.
MONTH —

computation of — , S. 49, p. 53.

MORALS—

offences against public — , Ss. 292-294, pp, 487, 491.

MOTIVE—

meaning of — , p. 106.

— a clue to intention, ib . ,

purity of — no excuse for criminal act, ib.

— need not be proved in prosecution for murder, p. 560.

MOTIVE OR REWARD FOR DOING—
definition of — , S. 161, Expin., p. 272.

MOVEABLE PROPERTY—

definition of — , S. 22, p. 28.

— and immoveable property of the defaulter may be attached for realisation of
fine, pp. 71, 72.

stones when quarried and carried p. 28.
earth severed from soil, pp. 28, 704.
letter, p. 28.

forging an authority to receive or deliver any — , S. 467, p. 924.

See Theft.

MULE—

killing, poisoning, maiming or rendering Useless a — , S* 429, p. 855.

MUNICIPAL COMMISSIONER—

— is a public servant, S. 21 tenth ill., p. 24.

MURDER—

definition of — , S. 300, p. 517.
intention is an essential ingredient of — , p. 659.
motive though not sine qua non is relevant, p. 660.
what is — under English law, pp. 519, 520.
distinction between culpable homicide and — , pp. 521, 522, 623.
culpable homicide is not — if it falls within certain exceptions, S. 300 Exceptions,
pp. 518, 519.*

onus i s on the accused to prove exceptions, p. 528.
act done under grave and sudden provocation is not — . S. 300, Excepn. 1, p. 518.
provocation must not be sought or nrovoked, S. 300, Excepn. I, Proviso 1,
pp. 518, 534.

provocation must not be given by lawful act, S. 300, Excepn. 1, Proviso

provocation must not be given by exercise of self-defence, S. 300, Excepn.
1, Proviso IIT, pp. 518, 535. t

provocation must be such as to upset a man<of ordinary sense and calmness,
P< 630,

INDEX

67

MURDER— Contd.

words of reproach ov abuse if sufficient provocation, pp. 529, 530. t
indecent gestures expressive of contempt if sufficient provocation, p. 529.
mental condition of offender relevant to prove character of provocation,
p. 530. ^

wife's refusal of sexual intercourse to husband if sufficient provocation to

latter, p. 531.

illicit intercourse by wife if sufficient provocation, p. 530.

— caused by adultery, pp. 530, 531.

intrigue with one’s sister if sufficient provocation to brother, pp. 531, 532.
mere suspicion of chastity is not sudden provocation, pp. 531, 532.

— rule that husband is guilty of manslaughter when he kills the wife after
discovering her in the act of adultery — or on her confession of
illicit intercourse, pp. 531, 534.

— has no application to the case of a concubine, tb., p. 534.
belief in having been the victim of witchcraft is not under provocation,
ib.

provocation and its effects must be sudden as well as grave, p. 633.
lapse of time between injury and retaliation negatives presumption oi
suddenness of provocation and raises presumption of malice in law, ib.
confession of illicit intercourse by woman if sudden provocation, p. 534.
whether provocation was grave and sudden is a question of fact, S. 300,
Excepn. 1, Expin., pp. 518, 535.

acts exceeding right of self-defence aie not — , S. 300, Excepn. 2, pp. ol9, o35, 536.
acts done when right of defence has ceased, p. 537.
threat of incantation does not give right of self-defence, ib.
onus on the accused to prove the plea of right of private defence, p. o 38.
acts exceeding legal powers of public servant are not — , S. 300, Excepn. 3, pp.
519, 538, 539.

acts committed in sudden fight are not — , S. 300, Excepn. 4, p. 519.

first provocation or assault is immaterial, S. 300, Excepn., 4., Expin.,
pp. 519, 540, 541.

fighting with open knife if protected, p. 542.
acts causing death is not — if the deceased is above 18 years and consents to tne
risk of death, S. 300, Excepn. 5, pp. 619, 542, 543, 544.
sutte, p. 543.

duelling, ib. , ia

death caused by lawful act without intention or knowledge if . p. 515, oio.
enlarged spleen, p. 515.

— from push or kick, p. 616. • .

death caused by working on the fancy of another or by haish or unkind usage
whether — , p. 509.

administration of dhatura whether— , pp. 526, 558.

poisoning by dhatura , p. 558. . « oni

death caused to one person while intention was to kill another is , 301

pp. 544, 557. »

what the prosecution must prove in case ot — , p. o47.

defences in a case of — , pp. 547, 548.

doctor must be examined, p. 548.

dying declaration, p. 558.

when onus shifted to defence, p. 546.

benefit of doubt in cases of — , p. 554.

concerted attack p. 554.

corpus delecii , pp. 554, 555.

plea of guilty in a case of — , p. 548.

witness declared hostile, p. 548.

prosecution witness is not to act as an interpreter, p. o4o.
power of the High Court to set aside acquittal, tb. *
misdirection, pp. 550-552.
confession, p. 552.

whether 'persons* are guilty of— in a case of concerted attack, p. 587.

punishment attempted by life convict, Ss. 303, 307, pp. 583, 6T0.

punishment for culpablS homicide not amounting to—, S. 304, p. 583.
punishment for attempt to commit — , S. 307, p, 57o. ,

P act must be capable of causing death in natural and ordinary course of
events, p. 530.

discharging a loaded revolver, pp. 580, 581.

68

THE INDIAN PENAL CODE

MURDER — Conld.

sentence in a case of — how awarded pp. 660, 561.

whether depends upon the fact that conviction is based on circumstantial
evidence, pp. 666, 657.

whether youth is a factor in determining sentence, p. 562.
whether sex is a determining factor, ib.
whether intoxication is a determining factor, ib.
kidnapping or abducting for — , S. 364, p. 660.
dacoity with — , S. 396, p. 741.

MUTILATION—

— of book, account, etc., of an employer by his servant, clerk or officer, S. 477- A,
p. 945.

MUTINY—

abetment of — in Army or Navy, Ss. 131, 132, pp. 216, 216,

circulating statements, etc., to excite — in Army and Navy, etc., S. 505, p. 1040.

MUTINY ACT—

not affected by the Indian Penal Code, S. 5, p. 17.

persons subject to — are not punishable under Chap. VII of the Code, S. 139,
p. 219.

NATIVE INDIAN SUBJECT—
meaning of — , p. 11.
application of Code to — , S. 4, p. 10.

NATIVE PRINCE OR CHIEF—

application of the code of British subject in territories of — , S. 4, p. 10.

NATIVE STATE—

subject of — where to be tried, p. 10.

NAVIGABLE—

destroying or injuring— river or channel, S. 431, p. 869.

NAVIGATION—

rash or negligent — of vessel, S. 280, p. 476.
exhibition of false light, mark or buoy to mislead — , S. 281, ib.
conveying person in vessel unsafe for — , S. 282, p. 486.
danger or obstruction to public line of — , S. 283, ib.
mischief by injuring — , S. 431, p. 859. (

endangering — by removing or destroying lighthouse, sea mark or buoy, etc.,
S. 433, p. 861.

NAVY—

offences relating to — , Chap. VII, p. 214.
NECESSITY—

doctrine of — as enacted in S. 81, p. 108.

NEGLIGENCE—

« «

— in medical practitioner, pp. 127, 128.

— in medicine and surgery, pp. 572, 574.
meaning of — , p. 472.
culpable — or rashness, pp. 571, 572. •

causing death by — , p. 571.

— is not mischief, p. 847. t

owner of house is not liable for — of the contractor, ib.

— in driving or riding on public way, S. 279, p. 471.
error of judgment does not constitute reckless driving, p. 473.
'in navigation of vessel, S. 280, p. 475, • *

INDEX

NEGLIGENCE — Contd.

— in conveying person by water for hire, S. 282, p. 476.

— in causing danger or obstruction in public way or line of navigation, S. 283
ib.

— with respect to poisonous substance, S. 284, p. 478.

— with respect to fire or combustible substance, S. 285, p. 479.

— with respect to explosive substance, S. 286, p. 480.

— with respect to machinery, S. 287, p. 481.

— with respect to repairing or pulling down buildings, S. 288, p. 482.

— in respect of animals in possession, S. 289, p. 483.
contributory — , no defence in criminal cases, p. 474.

— in causing death, S. 304- A, p. 568.

— in plying boat, p. 573.

— or rashness in intercourse, ib.

— by Railway servants, pp. 572, 573.

— to supply proper food and lodging to a helpless person, p. 511.

NEGLIGENT ACT—

See Rash or Negligent Act.

NEGLIGENTLY—

public servant — suffering escape of person accused, convicted or committed to
custody, S. 223, p. 405.

NEWSPAPER—

liability of printer, publisher, etc. of a — for defamation, p. 999.
liability of editor of — for defamation during temporary m anagement of the paper
by competent person, p. 1000, 1001.
republication of defamatory matter by the editor of — , p. 999.

NEWSPAPER PROPRIETOR—

liability of a— for acts of his servants in publishing obscene matter, p. 491.

NON -ATTEND ANCE^-

in obedience to an order, summons, etc., from public servant, S. 174, p. 298.

conviction of a complainant for — is illegal when he was ordered to appear on
penalty, p. 300.

of an accused when he appears through a pleader or muktear, ib.

no conviction for— when summons illegal or not legally served, p. 301.
no conviction if — not intentional, pp. 301, 302.

notice—

non-attendance in obedience to—, S. 174, p. 288.

NOXIOUS-

nieaning of — , p. 466.

adulteration of food or drink to make it — with intent to sell, S. 272, p. 465.
sale ofr— food or drink, S. 273, p. 466.

adulteration of drug to make it— with intent to sell, S. 274, p. 468.

sale of — drug, S. 275, ib.

making atmosphere— to health, S. 278, p. 470.

NUISANCE—

definition of public—, S. 268, p. 454. ,

difference between public and private—, p. 4o5.

right to commit private j — may be acquired by prescription, p. 455. .

public not excused on the ground of convenience or advantage, p. 4££

public— not excused on the ground of legality of act, p. 459.
legalised—, p. 460.

committed by agents observants, pp. 455, 456.

no — unless annoyance to the public, p. 456.

lawful cremation or disposal of corpses is not , p. 459.

no— when acts or illegal omissions offend sentiments of a class, p. 459.

keening a gaming hohsebr gambling whether a—, pp. 467, 458.

elewn cases of— dealt in Chapter X^V of the Code, pp. 453, 454.

70

THE INDIAN PENAL CODE

NUISANCE— Contd.

(1) spreading of infection, Ss. 269-271, pp. 462, 464.

syphilis, p. 463.
cholera, ib.
i lague, ib.
small-pox, ib.
glanders, ib.

(2) adulteration of food, drink or drugs, Ss. 272, 276, pp. 465 -469.

(3) fouling water of public spring or reservoir, S. 277, p. 469.

(4) making atmosphere noxious to health, S. 278, p. 470.

(5) rash driving or riding on public way, S. 279, p. 471.

(6) rash or negligent navigation of vessel, Ss. 280, 282, pp. 475, 476.

(7) endangering public ways, S. 281, p. 475.

(8) negligent dealing with poisons, combustible matter, explosive substance,

Ss. 284,-286, pp. 478,-480.

(9) negligent conduct with respect to

(а) machinery, S. 287, p. 481.

(б) pulling down or repairing buildings, S. 288, p. 482.

(c) animals, S. 289, p. 483.

(10) spreading of obscenity, Ss. 292, 294, pp. 499, 503.

(11) public gambling, S. 294A, p. 492.

punishment for public — not otherwise provided for, S. 290, p. 486.
continuance of — after injunction to discontinue, S. 291, p. 486.

See Public Nuisance.

NUMBER—

singular — includes plural, S. 9, p. 20
OATH—

meaning of — ?. 51, pp. 53, 54.

refusing to take an — S. 178, p. 307.

false statement on — to public servant, S 181, p. 309.

OATHS OR AFFIRMATIONS—

what are — , S 51, p 53.

false statement on — , S. 181, p. 309.

refusal to take — S. 178, p. 307.

OBLITERATION—

— of document to prevent its production as evidence before court or public s ervant,
S. 204, p. 367.

OBSCENE ACTS AND SONGS—

doing, singing or uttering — , S. 294, p. 491.

lavni is not necessarily an obscene song, p. 492.

OBSCENE BOOKS, ETC —

sale, hire, distribution, etc. of — , Ss. 292, 293, pp. 487, 491.

See Obscenity.

OBSCENITY—

- selling, buying, hiring, distributing, exhibiting or circulating obscene matter,

Ss. 292, 293, pp. 487, 491.

producing or possessing such matter for sale, etc , S. 292 (a) p. 487.

importing, exporting or conveying obscene object for sale, etc., S. 292 (b) ib.

taking part in or receiving profit from any business dealing with obscene
matter, S. 292 (c), ib.

advertising that a person is engaged in act which is an offence by reason
of obscenity, S. 292 (d), ib.

offering or attempting to do an act which is an offence by reason of
obscenity, S. 292 (e), ib. .

things kept or used bona fide for religious purposes do not constitute
offence of obscenity, S. 292, Excepn., ib. f

INDEX

71

OBSCENITY — Contd.

court may order destruction of obscene object with respect to which there has
been conviction, p. 488.*
distribution of obscene pamphlets, p. 490.
exception, pp. 487, 490.

— not excused on the ground that the publication is a medical one and sold
only to registered subscribers, p. 490.
search of house supposed to contain obscene object, ib.
test of — , p. 489.

purchase of obscene matter to entrap the seller, p. 490.
advocacy of checks to conception not an offence, p. 491.

liability of a newspaper proprietor for obscene matter published in the news-
paper, ib .

OBSTRUCTING—

— a public servant when suppressing r*ot, etc., S. 152, p. 258.

— sale of property offered for sale by authority of public servants, S. 184, p. 320.
it must be physical, pp. 320, 322.

taking of property by lawful authority of public servant, S. 183, p. 318.

— a public servant in discharge of public functions, S. 186, p. 321.
what does not amount to — a public servant, p. 321.
mere abuse is not, p. 322.
escaping from lawful custody is not, ib.
mere oral statement is not, ib.

resistance to a bailiff seizing a woman in execution of decree for restitution
of conjugal rights, ib.

refusal by cart-owner to give his cart on hire to Government is not, p. 324.
persuasion to tenants not to pay rent to a Receiver is not, ib.

— in discharge of public functions, pp. 324, 325.

— meaning of public functions, ib.
no — if no overt act done, p. 322, 412.
if the warrant is defective, p. 327, 412, 413.
warrant which bear no date, p. 327.
not signed by shtristader, p. 323.
signed 4 by order * is not defective, ib.

— lawful apprehension of one’s self or of anothor person, Ss. 224, 225, pp. 406,

407.

— a public way or line of navigation, S. 283, p. 476.

OBSTRUCTION—

— to warrant of execution by a poison not a party to the decree, p. 325.

— by a person to his lawful apprehension, S. 224, p. 406.

— to lawful apprehension of another person, S. 225, p. 407.
whether mere absconding is — to apprehension, p 412.

— to apprehension of a boy un ier 7 years, p. 413.

— to apprehension of deserter from Army, p. 414.

— in public way or line of navigation, S. 283, p. 476.

— to arrest by Police, p. 640.

pulling down — to public road, if mischief, p. 845.

— as of right to prevent contamination of drinking water supply, ib.
mischief by causing — to public drainage, S. 432, p. 860.

OCCUPIER—

liability of — of land on which unlawful assembly is held or riot committed, S. 154,
p. 264.

liability of — of land respecting which a riot takes place for benefit, S. 155, p. 266.

liability of— of a dangerous .house on a highway, «p 478.

agent or manager of— of land, when triable for riots, S. 156, p. 267.

OFFENCE—

definition of—, S. 40. 177 Expfn., 203, Expin., 212, 216, pp. 48, 305, 365, 386,
393. —

* - is subject to exceptions, S. 6, p. 19.

— committed prior to Penal Code, p. 1.
doubtful— p. 4. #

conviction of doubtful^-. S. 72, p. 84.
specific—, p. 6.

12

THE INDIAN PENAL CODE

OFFEN CE — Contd.

attempt to commit an — is itself an — , p. 50 w
abetment of an — is itself an — , ib.
distinct — , what is, pp. 73, 70.

— committed outside British India, S. 3, p. 9.

an order for payment of maintenance is not a conviction for — , p. 50.
co-operation by doing one of several acts constituting an — , S. 37, p. 46.,
persons concerned in criminal act may be guilty of different offences, S. 38, p. 47.
limit of punishment of — made up of several offences, S. 71, p. 73.
punishment when doubtful which — is committed, S. 72, p. 84.
acts or omissions which do not constitute an — , Ss. 76, — 96, pp. 92, — 138.

OFFENDER—

causing disappearance of evidence of offence or giving false information to
screen — , S. 201, p. 361.
harbouring — , Ss. 212, 216, pp. 385, 393.
taking or offering gift to screen — , Ss. 213, 214, pp. 387, 388.

OFFICER—

meaning of — , p. 26.

protection of judicial — from liability, p. 99.
definition of — , S. 131, Expin., p. 215.

seducing an — of Army, Navy or Air-Force from duty, S. 131, ib.
abetting mutiny by — of Army, Navy or Air- Force S. 131, ib.
abetment of insubordination by — of Army, Navy or Air-Force S. 138, p. 219.
abetmont of desertion of — of Army or Navy or Air-Force, S. 135, p. 217.

— in authority corruptly or maliciously committing a person for trial or confinc-
irent, S. 220, p. 401.

destruction, etc., or falsification by — oi book, account, etc., S. 477A, p. 945.
publishing or circulating rumour, etc., to cause — of Army or Navy to mutiny
or failure m duty, S. 505, p. 1040.

OMISSION—

illegal — included in the word * act, ’ S. 32, p. 39.
the word — includes a series of omissions, S. 33, p. 40.
effect caused partly by act and partly by — , S. 36, p. 46.

— when constitutes abetment, S 107, secondly, thirdly , pp. 159, 166
abetment of an illegal — , S. 108, Explanation 1, p 100.

concealing tho existence of a design to commit offence punishable with death or
transportation by an illegal — , Ss. 118, 119, 120, pp. 184, 185, 186.

— to attend in obedience to an order from public servant, S. 174, p. 298.

- — to produce a document before public servant by person legally bound to
produce it, S. 175, p. 302.

— to produce an incriminating document by«an accused is no offence, p. 303.

— to give notice or information to a public servant by a person legally bound to
give it, S. 176, ib.

— to assist public sorvant when bound by law to give assistance, S. 187, p. 326.
— to givo information of offence by person bound to inform, S. 202, p. 305.
intentional — to apprehend a person or suffering his escape on the part of a public
servant bound to apprehend for an offence, S. 221, p. 402.

— to apprehend on the part of a public servant — , a person under sentence or
lawfully committed, S. 222, p. 403.

— to apprehend on the part of a public servant in cases not otherwise provided
for, S. 225A, p. 409.

•—of any material particular from books, accounts, etc., of an employee by his
clerk, servant or officer, S. 47 7 A, p. 945.

OPERATION—

\ extent of the — of the Penal Code, S. 1, p. 1.

* offences committed prior to the— of the Code, p. 1.

ORDER— .

absconding to avoid service of—, S. 172, p. 295*
no contempt in disobeying illegal — and avoiding the same, p. 296. .
warrant is not — within the meaning of, S. f72, %b. % %

patenting service or publication of— of a public servant, S, 173, p, 297.

INDEX

73

ORDER — contd.

non-attendance in obedience to an— from public servant, S. 174, p. 298.
disobedience of— duly promulgated by public servant, S. 188, p. 327.
no offence when the order is in civil suit, p. 330,
no offence when order passed without jurisdiction, p. 331, 332.
knowledge of the passing of the order necessary for a conviction, p. 332.
mere disobedience without obstruction, annoyance, etc., no offence,
pp. 330, 333.

the order should be directed to the accused, p. 331.

Probhat Ferri case, p. 332.

regulation of music in public street, p. 333.

Prohibition of public meetings or procession, disobedience of — , p. 333.
music before mosque, ib.

public servant corruptly making— in judicial proceeding contrarv to law, S 219
p. 400.

OUTRAGE—

assault or criminal force to woman with intent to — modesty, S. 354, p. 642.
scope or the meaning of outraging modesty, pp. 643, 644.

love with the woman does not excuse the crime, p. 645.
indecent assault on prostitutes, ib.

— of religious feelings of any class, S. 295A, p. 499.

OWNER—

liability of — of land for unlawful assembly or riot hold thereon, S. 154, p. 264.
non-resident co-owner or partner not liable, p. 265.
prosecution of — must be instituted without delay, ib.
prosecution of — must be on evidence and not on surmise, ib.
liability of— of land respecting which riot takes place for his benefit , S. 155, p. 266.
liability of the agent of — of land for whose benefit a riot is committed, S. 156
p. 267.

OX-

killing, maiming, poisoning or rendering useless any — , S. 429, p. 855.
PANCHAYAT—

member of a — when a judge, S. 19, ill. (c), p. 22.

— may be a Court of Justice, S. 20, ill., p. 23.

member of a — assisting a Court of Justice, etc., is a public servant, S. 21 , fifth,
p. 24.

PAIN—

causing bodily — , is causing hurt, S. 319, p. 594.

PAINTING—

obscene—, S. 292, p. 487.

PANDA —

soliciting pilgrims on Railway platform in disobedience to an order by the Rail-
way Company, p 329.

PAPER—

destruction, etc., or falsification of— of an employer by his clerk, servant or officer,
S. 477A, p. 945. ^

* * m

PARTNER—

— may be convicted for fraudulent removal of partner* hip account books, p. ^40.
criminal breach of trust by—, p*769.

PASSENGER— ^ »

carrying — for hire in unsafe or overloaded vessel, S. 282, p. 476.

PAYlfrG-IN-StlP— # .

a counterfoil of a — , is a* valuable security, p. 28,

74

THE INDIAN PENAL CODE

PEACE —

intentional insult to provoke breach of the — , S. 504, p. 1038.

PENAL SERVITUDE —

— as a mode of punishment under the Code, S. 53 thirdly, p. 56.
sontence of — to whom applies, S. 56, pp. 60.
sentence of — how carried out, p. 58.

PENAL STATUTES —

construction of — , p. 4.

PENETRATION—

sufficient to constitute rape, S. 375, explanation, p. 682.

— sufficient to constitute carnal intercourse in unnatural offence, S. 377, ex*
planation, p. 691.
what constitutes — , p. 686.

PERJURY—

definition of — , S. 191, p. 335.

moaning of — under English law, p. 336.

difference between English and Indian law of — , p. 337.

proof of the offence of — , p. 338, 346.

mere suspicion is not enough, ib.

whether there can be indictment for — when the false evidence is admitted
improperly, p. 339.

for prosecution for — false statement must be intentional, pp. 340, 353
conviction for— if good when deposition was not taken in accordance with law,
pp, 344, 345.

reading over of deposition, p. 344.
locus panitentia for witnesses charged with — , p. 349
conviction for — upon comparison of hand-writing, pp. 345, 346.’
exact statements should be set out, p. 346.
deposition not to be considered piecemeal, p. 353.
what the charge for — should contain, p. 347.

—arising out of contradictory statements, pp. 349, 351.
no prosecution for — when witness retracts false statement, p. 352.

— in pleadings, p. 338.

false affidavit in support of an application for transfer, p. 362.
abetment of — , p. 340.

See False Evidence.

PERSON—

definition of — , S. 11, p. 20. •

includes corporation, ib.

every — liable to punishment under the Code for offences committed within
British India, S. 2, p. 7.

extra-territorial operation of the Code to— outside British India, Ss. 3, 4, pp. 9, 10.

liability of a — for act done by several persons in furtherance of common inten-
tion, S. 34, p. 40.

throat of injury to — when criminal intimidation, S. 503, p. 1081.

PERSONAL DANGER—

apprehension of — no excuse for assisting in the commission of crime, p. 136,

PERSONAL SAFETY— • .

act endangering — of others, S. 336, p. 614.

letting off steam in public thoroughfare, p. 615.

throwing stones over a man’s house* ib.

driving taxicab without spectacles with defective eyesight, ib.

removing the light from the parapet of a wcjl, p. 616.

causing hurt or grievous hurt by act endangering — of others, Ss* 3*37, 338,
pp. 616, 617.

sexual intercourse without rtgard to the — of wife, pp. 573, 618. %

INDEX

75

PERSONATING —

— a soldier, S. 140, p. 220.

— a public servant, Ss. 170, 171, pp. 285, 286.

— a C. I. D. inspector to avoid payment for platform ticket whether an offence,

p. 286.

— a juror or assessor, S. 229, p. 421.

— another for purposes, of suit or prosecution, S. 205, p. 368.

See Personation.

PERSONATION—

definition of — at elections. S. 171D, p. 290.
punishment for — at elections, S. 171F, p. 291.
examples of — at oloction, p. 291 .

evidence necessary for conviction for — at election, p. 293.
cheating by — , S. 416, p. 821, 826, S. 419, p. 826.
moaning of — , p. 826.

more — with no fraudulent or dishonest inlontion is no offence, p. 822.

false — for purpose of act or proceeding in suit or prosecution, S. 205, p. 368.

— at an examination, p. 821.

falso representation as to caste if— , pp. 821, 822.

misrepresentation as to position in life of — , p. 822.

— by witness, ib.

PIRACY—

what is — , p. 16.
abettors of — on land, ib.

PLACE OF TRIAL—

charge under S. 177 within the meaning of S. 40 of the Income Tax Act can be
tried at the place whore verification is mado, p. 306.

— of the offence of extortion, p. 721.

of the offence of criminal misappropriation, p. 757.

—of the offence of criminal breach of trust, p. 776, 786, 787.

PLACE OF WORSHIP—

destroying, damaging or defiling—, S. 295, p. 497.
entry into tht precincts of a — by a low caste, p. 499.
trespass on a — to wound feeling or insult religion, S. 297, p. 503.
mischief by fire or explosivo substance with intent to destroy a building used as — ,
S. 436, p. 863.

criminal trespass into any building, etc., used as a — , S. 442, p. 874.

PLAGUE— *

negligence regarding spreading of—, p. 463.

PLAINT—

interpolation in certified copy of — , p. 912.

— in a divorce suit, p. 653.

PLAN—

See Map or Plan.

PLATE- , —

making or possessing counterfeit— with intent to comAiit forgery, Ss. 472, 473,
pp. 939, 940.

PLEADER—

refusal by a— against whom proceedings under Legal Practitioners Act zse
. taken to make a statement, p. 310.
defamatory utterances by — , pp. 1024, 1025. *

PLEADINGS—* # •

false verification is, p. 3$8.

THE INDIAN PfiNAL CODE

16 -

PLEDGEE —

criminal breach of trust by — , p. 770.

POISON—

killing with—, p. 526.

negligent conduct with respect to — , S. 284, p. 478.

administration of — with intent to cause hurt or grievous hurt, Ss. 324, 326, 328,
pp. 600, 604, 606.

POLICE OFFICERS—

protection of — from prosecution or civil liability, p. 101.

POSSESSION—

scope of the word — , S. 27, p. 34.

no distinction between — and custody under the Code, ib.

meaning of — , pp. 706, 707.

evidence of such — , p. 429.

nature and evidence of — of counterfeiting instruments, pp. 433, 434.

— with regard to offences relating to coin is wider under English law, p. 432.

— of instrument or material for counterfeiting coin, S. 235, pp. 427, 428.

— of obscene books, etc., Ss. 292, 293, pp. 487, 491.

— of fictitious stamp or instrument for making fictitious stamp, S. 263A, p. 448.

— of counterfeit seal, etc., with intent to commit forgery, S*s. 472, 473, pp. 939, 940.
— of forged document with intent to use it as genuine, S. 474, p. 940.

— of counterfeit device or mark for purpose of authenticating documents,
Ss. 475, 476, pp. 941, 943.

—of instrument for countcrfeitng trade mark or property mark, S. 485, p. 963.
— for sale, etc., of goods marked with counterfeit trade mark or property mark,
S. 486, ib.

— of forged or counterfeit currency notes or bank notes, S. 489C, p. 970.

— of instruments or materials for forging or counterfeiting currency notes or bank
notes, S. 489B, p. 969.

theft by clerk or servant of property in — of master, S. 381, p. 714.
of stolen property, pp. 794, 795.
exclusive — , is necessary, p. 797.

— in casas of criminal trespass, nature of, p. 869.

— in cases of theft, pp. 706, 707.

conversion is joint—, of property into exclusive — constitutes theft and
not criminal misappropriation, p. 707.

POWER OF ATTORNEY—

— is a ' document, * S. 29, ill., p. 36.

— forging a — , S. 466, p. 922.

PREGNANCY—

sentence of death is postponed during — of the accused, p. 60.

‘quick with child ’ — meaning of, p. 585.

‘ with child ' means pregnant, p. 684.

causing miscarriage, S. 312, p. 583.

without the consent of the woman, S. 313, p. 585.

death caused, S. 314, p. 586.

preventing child from being born alive or causing it to die after its birth, S. 315,
p. 687.

causing death of an unborn child by act amounting to culpable homcide, S. 316,
^ p. 588.

PRELIMINARY INVESTIGATION—

■ *. is a stage of ' judicial proceeding, * S. 193, Expin., 2, p. 345.

PREPARATION —

— to commit predation on territories of Power at peace with the Kifig,* S. 126,

p. 211.

— with intent to raise apprehension of use of criminal force in persons present is
**. an offence (assault!, S. 351, p. 634. « •

distinction between — and attempt, pg. 1048, 105Q, 1052.

INDEX

77

PREPARATION — contd.

law allows locus penitentia to persons not advancing beyond stage of — ,
p. 1049. °

—to wage war against the King is punishable, S. 122, p. 199.
theft after — made for causing death etc., S. 382, p. 717.
making — to commit dacoity, S. 399, p. 746.
what amounts to — , p. 747.
mere assemblage not sufficient, ib.
distinction between, Ss. 399 and 402, ib.

committing mischief after— made for causing death or hurt, S. 440, p. 866.
committing house-trespass after — made for hurt, assault or wrongful restraint,
S. 462, p. 886.

committing lurking house- trespass or housebreaking after— made for hurt, assault
or wrongful restraint, S. 455, p. 889.

committing lurking house-trespass or housebreaking by night after — made for
hurt, assault or wrongful restraint, S. 458, p. 893.
publishing banns of marriage is — for marriage, p. 1048.

PRESCRIPTION—

no defence to public nuisance, p. 455.

no defence to fouling water of public spring or reservoir, p. 470.

alteration of a — from a medical man is using as genuine a forged document, p. 935.

PRESENCE—

meaning of—, pp. 178, 179.

— of abettor at the time of the commission of offence, S. 114, p. 176.
mere — at extortion is not abetment, p. 721.

See Abetment; Principal.

PRESIDENCY—

definition of — , S. 18, p. 22.

PREVENTION—

— of service of summons, order, etc., S. 173, p. 297.

refusal to give receipt for a summons is not a — of service thereof, p. 298.

refusal to receive summons is not — of service thereof, ib.

PREVIOUS CONVICTION—

enhanced punishment after — , S. 75, p. 87.

no enhanced punishment after — in foreign country, p. 89.

no enhanced punishment for abetment on a — for the offence abetted, p. 90.

procedure relating trial of persbns with — , i b.

evidence of — when can be given, p. 91.

record of — when to be put in, p. 90.

— to be stated in charge for awarding enhanced punishment, p. 91.

form of the charge after — , ib.

doctrine of — dots not apply to attempt, pp. 89, 90.

PRINCIPAL—

foreign authority to receive the — of a valuable security, S. 467, p. 924.

— in the first degree, who is, p. 169.

— in the second degree, who is, ib.

presence may be actual or constructive, ib.

PRINTING—

— or engraving defamatory master, S. 501, p. 1034.

PRISONER- t

voluntarily allowing or suffering or aiding escape of— of state or war S 3 . 128-130.

pp. 21 2, 213.

State—,!?. 212.

— of war, ib.

78

THE INDIAN PENAL CODE

PRISONER OF WAR—

voluntarily allowing— to escape, S. 128. p. 212.

PRIVACY—

intruding upon the — of woman to insult her modesty, S. 509, p. 1044.

PRIVATE DEFENCE—

act done in exercise of the right of — is no offence, S. 96, p. 138.

plea of— p. 139, 247, 248.

no — , when persons carry arms, p. 139.

when persons arc determined to vindicate their rights, p. 247.

prepared in anticipation of a fight, pp. 146, 147, 229, 247.

Court to take cognizance of the right of — even if not pleaded, pp. 152, 242.
alternative plea of innocence and — , pp. 139, 242.
extent of the right of — of property, pp. 139, 140.
when the right of — exists. Ss. 97, 98, 99, pp. 140, 142, 143.
proper time to take the plea of — , is before the trial Court, p. 139.
whether the right of — can be considered by High Court in revision for the first
time, p. 142.

right of — against the act of a person of unsound mind, etc., S. 98, ib.
acts against which there is no right of — , S. 99, p. 143.

no right of — when there is time to have recourse to public authorities, pp. 143, 148.
right of — against the act of a public servant, S. 99, Expin. 2, p. 143.
right of — against illegal acts of police, pp. 144, 145.

right of— does not exftend to inflicting more harm than is necessary for defence,
S. 99, pp. 143, 148.

justifiable force in the exercise of the right of — , pp. 148, 149.
unjustifiable force in exercising the right of — , p. 149.
right of — of body —

(i) when extends to causing death, S. 100, p. 150.

(ii) when extends to causing any harm other than death, S. 101, p. 152.
what is to be proved in pleading right of—, pp. 151, 152.
commencement and continuance of the right of — of body, S. 102, p. 153.
right of — of property —

(i) when extends to causing death, S. 103, p. 154.

(ii) when extends to causing any harm other than death, S. 104, p. 155.
commencement and continuance of the right of — of property, S. 105, p. 166.
harm to innocent person in exercising right of — , against deadly assault, S. 106,
p. 158.

— how far a justification to commit riot, pp. 247, 248.
exceeding the right of — does not constitute a riot, p. 249.
no right of — against civil trespass, p. 247.

no right of — against act which is not an offence under the Code, p. 139.
death caused in exercise of the right of — is not murder, S. 300, Excepn. 2, pp.

519, 535-538. . . •

threat of incantation does not give right of — , p. 537.

— in cases of assault, S. 352, p. 636.

PRIVILEGE—

— of judge, counsel, pleaders, solicitors, parties and witness in defamation, p. 1022.
doctrine of absolute— whether applies in India, pp. 996, 1021, 1028.

— of press in defamation, p. 1022.

— of statements in pleadings, p. 1028.

— in publishing reports of Courts, S. 499, Excepn. 4, pp. 991, 1013, 1014.

See Defamation.

fkIZE fight—

. ^ — where legal, p. 125.

— where illegal, p. 126.

Process—

absconding to avoiS — , S. 172, p. 295.

preventing service or publication of — ot non-attendance in obedience there to
^ S. 174, p. 298. . «

causing to be issued by falsely personating another, S. 205, p. 308.

INDEX

79

PROMOTING—

— enmity between classes, S. 153-A, p. 261

PROCURATION—

— of minor gist, S. 366- A, p. 667.

for the purpose of prostitution, S. 373, p. 670.

PROMISSORY NOTES—

antedating of — , S. 464, Expin. 1, ill. (e) t p. 907.

forgery may be committed of — on unstamped papers, p. 927.

making false endorsement in Government — , is forgery, S. 464, ill. (g), p. 906.

PROMULGATED—

meaning of — , p. 330, 331.

lawfully empowered to promulgate such order, p. 331.
disobedience to order duly — , S. 188, pp. 327, 330.

PROPERTY—

meaning of — , p. 62.

public servant unlawfully buying or bidding for — , S. 169, p. 284.
resistance to the taking of — by public servant under lawful authority, S 183,
p. 318.

taking of — by bailiff, when not lawful, p. 319.

removal of property by civil Court peon without giving option to judgment-
debtor, ib.

obstructing sale of — offered for sale by authority of public servant, S. 184, p. 320.
illegal purchase or bid for — offered for sale by authority of public servant, S.186
ib.

the right to sell drugs whether a — , ib.
fraudulent removal or concealment of — to prevent its seizure, S. 206, p. 369.
fraudulent claim to — to prevent seizure as forfeited or in execution, S. 207. p. 371.
dishonest or fraudulent removal, etc. of — to prevent distribution among creditors,
S. 421, p. 837.

dishonest or fraudulent removal or concealment of — , S. 424, p. 840.
receiving— taken by war or depredation mentioned in Ss. 126-126, s. 127, p. 212.
breaking open or unfastening closed receptacle containing — , S. 461, p. 896.
public servant disobeying direction of law or framing incorrect record to save —
from forfeiture, Ss. 217, 218, pp. 396, 397.
threat of injury to — , when criminal intimidation, S. 503, p. 1036.
voluntarily causing hurt or grievous hurt to extort — or compel its restoration.

Ss. 327, 329, 330, 331, pp. 605, 607, 608, 609.
wrongful confinement to extort— or compel its restoration, Ss. 347, 348, pp. 629
630.

meaning of — in Ss. 405, 420, pij. 768, 834.
certificate of having passed examination is — , p. 858.
cheating in respect of one's own — , p. 835.

fine may be realised by sale against both moveable and immoveable — of the
defaulter, pp. 71, 72.
promissory notes is a — , p. 927.

PROPERTY IN POSSESSION OF WIFE, CLERK OR SERVANT—

— explained, S. 27, p. 34.

PROPERTY MARK—

offences relating to — Chap. XVIII, p. 897.
definition of — , S. 479, p. 954. 9

no distinction between — and trade-mark under English law, p. 954.
meaning of using a false **— , S. 481, p. 967.

penalty for making or possessing*instruments for counterfeiting—, S. 485, p. 963.

penalty for possessing false — to deceive, S. 486, p. ib.

selling, etc., goods marked with counterfeit — , S. 486, p. 963.

penalty for using a false — , S. 482, p. 968. ,

tampering with — with intent to cause injury, S. 489, p. 967.

counterfeiting — used by another, S. 483, p. 961.

counterfeiting — used*by*a public servant, S. 484, p. 962.

80

THE INDIAN PENAL CODE

PROSTITUTE—

whether solicitation by a — is public nuisance, p. 457.
indecent assault on — , p. 645. •
possession of a minor by a--, S. 373, Expin. 1, p. 670.
rape on a- p. 684.

PROSTITUTION —

disposing of minor for purposes of— etc., S. 372, p. 674.
meaning of disposal, p. 676.
ceremony of tying Talimani, if offence, p. 677.
performance of Shej ceremony, if offence, ib.
performance of Gejje ceremony, if offence, ib.
dedication to temple as dancing girl, if offence, ib.
obtaining possession of minor under 18 years for purposes of — , S. 373, p. 677.
meaning of buying or hiring, p. 680.
taking as devdasi, if offence, p. 681.

PROVOCATION—

wantonly giving — with intent to cause riot, S. 153, p. 266.
when — reduces murder to culpable homicide, S. 300, Excepn. 1, p. 518.
voluntarily causing hurt or grievous hurt oil — , Ss. 334, 335, pp. 613, 614.
assaulting or using criminal force otherwise than on grave and sudden — , S. 362,
p. 636, S. 355, p. 645.

assault or criminal force on grave and sudden — , S. 358, p. 646.

— with intentional insult intending or knowing that breach* of peace will be
committed, S. 504, p. 1038.

See Murder.

PUBLIC—

definition of — , S. 12, p. 21.

obscene acts or songs in public—, S. 294, p. 491.

PUBLIC “CONVENIENCE —

offences affecting — , Chap. XIV, p. 453.

PUBLIC DECENCY—

offences affecting — , Chap. XIV, p. 453.

PUBLIC DRAINAGE—

mischief by causing inundation or obstruction to — , S. 432, p. 860.
PUBLIC FUNCTIONS—

obstructing public servant in discharge of — , S. 166, p. 281.
what are not — , pp. 321, 324.

PUBLIC GOOD—

when a defence in defamation, S. 499, Excepns. 1, 9, 10, pp. 990, 993.

^UBLIC HEALTH—

offences affecting — Chap. XIV, p. 453. *

See Sections 269, 270, 278, 430, pp. 462, 464, 470, 856.

PUBLIC JUSTICE—

offences against — , Chap. XI, p. 335.

.PUBLIC LINE OF NAVIGATION—

danger or obstruction in — , S. 283, p. 476,

INDEX

81

PUBLIC MISCHIEF—

statements,, etc, conducing to — , S. 505, p, 1040.

PUBLIC MORALS—

offences affecting. Chap. XIV, p. 453.

PUBLIC NUISANCE—

definition of — , S. 268, p. 454.

essential ingredients of — , p. 455.

no — if it affects one or few individuals, p. 456.

annoyance to one person sufficient to constitute—, p. 460.
the injury or annoyance must be such as reasonable persons would com-
plain, p.457.

difference between private nuisance and — , p. 455.
right to commit — cannot be acquired by prescription, ib.

— committed by agents or servants, p. 455.

whether solicitation by a prostitute is a — , p. 457.

acts or illegal omissions offending sentiments of a class are not — , p. 457.

keeping of a brothel or gambling house, whether a — , pp. 457, 46J.

no excuse for — on the ground that it causes some convenience or advantage, p. 458.

lawful cremation or disposal of corpses not a — , p. 459.

no excuse for — on the ground of legality of the act, ib.

legalised — , p. 460.

instances of — p. 461.

various offences constituting — , Ss. 26 9-294-A, pp. 462-492.
punishment for — not specially provided for in the code, S. 290, p. 485.
repetition or continuance of — after injunction to discontinue, S. 291, p. 486.

See Nuisance.

PUBLIC PEACE—

joining or continuing in assembly of five or more persons likely to disturb — after
such assembly hai been commanded to disperse, S. 151, p. 257.
assembly likely to cause disturbance of — , what it means, p. 258.

PUBLIC PERFORMANCE—

criticism of the rights of a — when not defamation, S. 499, Excepn., 6, pp. 991,
pp. 1016, 1017.

PUBLIC PLACE—

what is a — , p. 269.

chabutra is not — , ib.

instances of — , pp. 269, 270. *

misconduct in a — by a drunken person, S. 510, p. 1046.

PUBLIC QUESTION—

fair criticism of the conduct of a person touching a — is not defamation, S. 499,
Excepn., 3, pp. 991, 1010.

PUBLIC RIVER—

— not included in public spring or reservoir, p. 470.

PUBLIC ROAD—

pulling down obstruction to — if mischief, p. 845.
mischief by injury to — , S. 431, p. 859.

PUBLIC SAFETY—

offences affecting — , Chap. XIV, p *455.

PUBLIC SERVANT— «

definition of — S. 21, pp. 23 — 26.

unpaid apprentice of Government i\ot a — , p. 25.

carter employed by Goyerpment not a — , p. 26.

F

82

THE INDIAN PENAL CODE

PUBLIC SERVANT — Contd.

manager of Court of Wards whether a — , ib.
lascar (P. W. D.) is a — , pp. 27, 638.

person in the employ of Government not necessarily a — , p. 27.

officers of Local Boards etc., are — , ib.

patwari of a village is a — , ib.

municipal tax collector is a — , ib.

chairman of Union Panchayct is a — , ib.

chairman of the Municipality is — , ib.

Local Board Sarkar. whether a — , pp. 27, 324.
police officer under suspension is not a — , p. 27.

bank officer receiving money on account of Government is not a — , p. 27.
sanitary inspector is a — , ib.
municipal inspector is a — , ib.

right of private defence against acts done by direction of — , S. 99, p. 143.

— abetting an offence, S. lit), p. 181.

whether a civil surgeon is a — within the meaning of S. 116, ib.
punishment of a — for voluntarily and negligently allowing prisoner of state or
war to escape, Ss. 128 and 129, pp. 212, 213.
assaulting or obstructing, etc., a — when suppressing riot etc., S. 162, p. 258.

— improperly taking a gratification etc., S. 161, p. 271.

— cannot plead illegality of his appointment as a defence to the offence of taking
illegal gratification, p. 275.
whether railway servants are — , ib.

taking or attempting to take gratification for corruptly influencing a — , S. 162,
p. 278.

taking or attempting to take gratification for exercise of personal influence with — ,
S. 163, p. 279.

abetment by — of offences under Ss. 162 and 163 of the Code, S. 1G4, ib.

— obtaining or attempting to obtain valuable thing without consideration or with
inadequate consideration from person concerned in proceeding or business
transacted by such public servant, S. 165, p. 280.

— disobeying direction of law with intent to cause injury to any person, S. 166,
p. 281.

— framing or translating a document incorrectly with intent to cause injury to
any person, S. 167, p. 283.

— unlawfully engaging in trade, S. 168, ib.

— unlawfully buying or bidding for property, S. 169, p. 284.
personating a—, S. 170, p. 285.

wearing garb or carrying token used by — with fraudulent intent, S. 171, p. 286.
absconding to avoid service of summons or order from a — , S. 172, p. 295.
preventing st r vice of summons, etc., from a — , S. 173, p. 297.
non-attendancc in obedience to a summons, etc., from a — , S. 174, p. 298.
omission by a person legally bound to produce or deliver a document to a — , S. 175,
p. 302.

omission to give notice or furnish information to a — by person legally bound, S. 176,
p. 303.

furnishing false information to a — , S. 177, p. 305.

refusing oath or affirmation when duly required by — to make it, S. 178, p. 307.

refusing to answer — authorised to question, S. 179, p. 308.

refusing to sign a statement when required to do so by a — , S. 180, p. 309.

making false statement on oath or affirmation to a — , S. 181, ib.

giving false information to a — S, 182, p. 311.

resistance to the taking of property by lawful authority of — , S. 183, p. 318.
obstructing sale of property offered for sale by authority of — , S. 184, p. 320.
illegal purchase or bid for property offered for sale by authority of — , S. 186, ib.
voluntarily obstructing — in discharge of public functions, S. 186, p. 321.
person nominated by a collector under S. 69 of the Bengal Tenancy Act is a —
p. 324. ' '

omission to assist — when bound by law to give assistance, S. 187, p. 326.
disobedience of order duly promulgated by — , S. 188, p. 327.
threat of injury to — , S. 189, p. 333.

threat of injury to induce a person to refrain from applying for protection to — ,
S. 190, p. 334.

fabricating false evidence for a judicial proceeding before a — , S.192, p. 339.
— disobeying direction of law with intent to save person from punishment or
property from forfeiture, S. 217, p. 397.

--framing incorrect record or writing with intent t?osave person from punishment
or prop rty from forf< iture or to cause injury to the public, S. 218, p. 397.

INDEX

83

PUBLIC SERVANT — Contd.

— in judicial proceeding corruptly making report etc., contrary to law, S. 219,
p. 400.

— intentionally on itting to apprehend or suffering escape of person, S. 221, p. 402.
— intentionally omitting to apprehend or suffering escape of person under
sentence or lawfully committed, S. 222, p. 403.

— negligently suffering escape of person accused, convicted or committed to
custody, S. 223, p. 405.

— omitting to apprehend or suffering escape of a person in cases not otherwise
provided for, S. 225 A, p. 409.

intentional insult or interruption to — sitting in judicial proceeding, S. 228, p. 416.
voluntarily causing hurt or grievous hurt to deter — from his duty, Ss. 332, 333,

pp. 610, 612.

assault or criminal force on — to deter him from discharge of his duty, S. 353,
p. 637.

criminal breach of trust by — , S. 409, pp. 784, 787, 788.

forging a register kept by a — as such or a certificate or document made by a — ,
S. 466, p. 922.

counterfeiting any mark used by a — , S. 484, p. 962.

making or using a false mark upon any receppacle inducing a wrong belief in any
— Ss. 487, 488, pp. 966, 967.

death caused by — or a person assisting — when not murder, S. 300, Excepn., 3,
p. 519.

mischief by destroying etc., land mark fixed by authority of — S. 434, p. 861.

PUBLIC SPRING OR RESERVOIR—

fouling water of — , S. 277, p. 469.

— does not include public river, p. 470.

PUBLIC TRANQUILLITY—

offences against — , Chap VIII, p. 220.

circulating rumour, etc., with intent to induce public to commit offences against — ,
S. 505. p. 1040.

PUBLIC WAY—

rash driving or riding on a — , S. 271), p. 471.
what is meant by — , p. 473.

causing danger, obstruction or injury to any person in any— , S. 283, p. 476.

PUBLICATION—

— of obscono books ct'., S 292, p. 487.

— a fictitions biography describing sexual encountess obscene — , p. 490.

—of a proposal of lottery, S. 294 A, p. 492.

- -of any statement:, rumour or report conducing to public mischief, S. 505, p. 1040.
— an essential ingredient of the offence of defamation, p. 996
meaning of — in dofamation, p 997.

— by repetition, 998.

— by republication, p. 999.

— by printer, publisher, etc., ib.

See Defamation.

PUN I S1TM ENT -

— when to be under the Code, Ss. 2, 3, 4, pp. 7, 9, 10.
liability of foreigners to — , p. 6.

— for specific offences, ib.

different kinds of — , S. 53, pp*. 55, 56. *

communication of — , Ss. 54, 55, pp. 59, 60.
calculation of fractions of terms of — , S. 57, p. 61 .
standard and measure of — under the code, p. 56.

— in cases where it is doubtful which of several offences committed, S. 72, p. 84, -
solitary confinement as — , S. 73, p. 85.

— tohfcrt offence is mad% up of soveral offences, S. 71, d. 73.

— where a single act constitutes different offences, S. 71, ib.

— where^i compound offence includes minor offences*, ib.

— whore a housobr#ak$r removes from a room articles of two different persons,

P* 76 -

84

THE INDIAN PENAL CODE

PUNISHMENT — Gould.

— for a number of lies in a continuous deposition and a same lie in two deposi-
tions, ib.

— for theft cf articles of two different persons by a railway guard, ib.

— for simultaneous dacoity in two houses, ib.

— for single transaction giving rise to similar offences affecting different persons,
p. 76.

— for housebreaking and mischief and assault, ib.

— for criminal intimidation to three persons simultaneously, ib.
enhanced — after previous conviction, S. 76, p. 87.
conditions for enhanced — p. 88,

no enhanced — in cases of previous conviction in foreign country, p. 89.
no enhanced — in cases of attempt, ib.
no enhanced — in abetment, ib. p. 90,

QUARRANTINE —

disobedience to rules of — , S. 271, p. 464.

QUEEN —

definition of — , S. 13, p. 21.

definition of — , servant of the — , S. 14, ib.

QUEENS COIN—

— defined, S. 230, p. 423.

QUICK WITH CHILD—

meaning of — , S. 312, pp. 583, 586

RAPE—

definition of — , S 375, p. 682.

when husband may commit rape upon wife, S. 376 Excepn., ib.
boy under 14 years presumed incapable of committing rape under English
law, p. 683.

the presumption not applicable in India, ib.
physical capacity has to be proved, pp. 683, 688.
no conviction for attempt by person physically incapable, p. 683.
consent in rape, p. 684.

cons ent must be at the time of the act, p. 686.
mere submission is not consent, p. 684.
consent induced by fear is no consent, pp. 684, 686.
fraud if vitiates consent, p. 686.

— upon a sleeping woman, p. 684.

— upon a woman intoxicated by drugs or liquor, ib.

— on a prostitute, ib.

attempt to commit — , pp. 686, 687, 689.

indecent assault not necessarily attempt, ib.
evidence in cases of — , p. 688.
false charges of — , p. 689.
punishment for — , S. 376, pp. 687, 690.

suicide of complainant for shame should not affect punishment, p. 690.
adultery distinguished from — , S. 497. p. 978.

RASH OR NEGLIGENT ACT—

— m driving or riding, S. 279, p. 471.

— in navigating a vesstl, S. 280, p. 476. c
— on public way, S. 283, p. 476.

— in dealing with poison, S, 284, p. 478.

* — with respect to fire or combustible matter, S. 286, p. 479.

— with respect to explosive substance, S. 280, p. 480.

> — with respect to machinery, S 287, p 481.

— with respect to pulling down or repairing building« S 288, p. 482.

— with ru pect to animal, S. 289, j>. 483.

— not amounting to culpable homicide but causing death, S. ?04A, p. 668.
-r-endangoring life or personal safety of others, S. 336, p. 614. «

hift or grievous hurt by — , Ss. 337, 338, pp. 61 6, 617. *

INDEX

85

RASH DRIVING OR RIDING —

—on a public way, S 279, p. 471, 473.

presence of any person on the road not necessary, p. 473.
actual hurt or injury to any one not necessary, p. 474.
contributory negligence no ( efence, ib., p. 572.
error of judgment does not constitute reckless driving, p. 473.
actual driver and not owner is liable, p. 474.
liability of master for — of his servant, ib.

conviction for — to be under special law, if any, and not under the code, ib .

See Public Way.

RASH NAVIGATION —

— of vessel, S. 280, p. 475.

RASHNESS, CULPABLE —
meaning of — , p. 671.

REASONABLE AND PROBABLE CAUSE—

definition of — , p. 377.

belief essential to the existence of — , ib.

REASON TO BELIEVE —

definition of — , S. 26, p. 34.

the words — , are much stronger than f suspect * p. 939.

RECEIPT—

tearing of postal — , p. 849.
forgery of a — , S. 467, p. 924.

RECEIVING—

— persons hired or engaged for unlawful assembly, S. 157, p. 267.

— property taken bv war or depredation merit k>ned in Ss. 126 and 126, S. 127,

p. 212.

RECEIVING STOLEN PROPERTY—

— in foreign country cannot be tried in Indian courts, p. 10.
punishment for — , S 411, p. 791.

— where property was obtained by dacoitv or from a dacoit, S. 412, p. 802.
habitually — , S. 413, p. 804.

RECEPTACLE— «

breaking open or unfastening a closed — containing property. S. 461, p. 896.
when the person breaking is entrusttd with custody ol' the property, S. 462.
p. 897.

meaning of — , p. 897.

making or using a false mark upon — containing goods, Ss. 487, 488, pp. , 906, 967.
using false trade mark on — containing goods, Ss. 490, 481, 482, pp. 951, 957, 958.

RECOGNIZANCE BOND —

to forfeit — for appearance and convict under S. 174 is not usual though legal,
p. 299.

record— * *

framing of incorrect — by public servant to save person from punishment . or
property from forfeiture, S. 218, p. 397. „ •

interpolation of entries* by Police Inspector in his diary to conceal his
conduct if offtnee, pp. 399, 400. » • ~

false entry by chowkidar in attendance book if offence, p. 400.
pay sheet drawn by Railway officer is a — , p. 399. *
intention is an essential < lemtnt of offence, p. 399.
not necessary to prove intention to screen any particular person, p. 398.
forgery of— of cohrtf S. 406, p. 922. •»

86

THE INDIAN PENAL CODE

REFUSAL —

— to give a receipt for summons is no offence, S. 173, p. 297.

— to receive summons, 298.

some opposition to serving officer necessary, ib.

— to serve as a special constable, ib.

— by an accused to produce an in criminating document, p. 303.

— to t?ke oath when lawfully required, S. 178, p. 307.

— to answer questions, S. 179, p. 308,

— to disperse an unlawful assembly, S. 161, p. 257.

— to sign statements, S. 180, p. 309.

—to answer questions put to witness, pp. 308, 420.

—by an accused to answer questions, p, 309.

— to sign deposition by a witness, p. 309.

— by an accused to sign a confession, ib.

— by a pleader against whom proceedings under Legal Practitioners Act are
taken to make a statement, p. 310.

— by a ccrtowncr to give his cart on hire to Government, p. 324.

— by chowkidar to arrest a person committing murder outside his village, p. 403.

REGISTER —

forging — of birth, baptism, marriage or burial or kept by public servant as such,
S. 466, p. 922.

RELEASE—

dishonest or fraudulent — of demand or claim, S. 424, p. 840.

RELIGION—

offences relating to — , Chap. XV, p. 496.

RELIGIOUS ASSEMBLY—

disturbing — , S. 296, p. 601.

object is to secure freedom from molestation when people meet in a quiet spot,
p. 502.

religious service need not be stopped or actually prevented, p. 503.
active intention to disturb not necessary, ib.
disturbing by saying * amen/ p. 502.
music before mosque, p. 503.

spreading false rumours which led to the termination of a religious procession is
not disturbing — , p. 502.

passing a mosque with music at the notified time of prayer is disturbing — , ib.

RELIGIOUS FEELING—

outraging — of any class, S. 295, A, p. 499.
uttering words etc. with deliberate intent to wound — , S. 298, p. 605.

r

RELIGIOUS OBJECT—

injury to defiling of — for insulting religion, S. 295, p. 497.

REMISSION—

violation of condition of — of punishment, S. 227, p. 415.

REMOVAL—

fraudulent — of property to prevent its seizure — , S. 206, p. 369.
dishonest or fraudulent — of property to prevent distribution among creditors,
_ „ S. 421, p. 837.

dishonest or fraudulent — of property, S. 424,' p. 840.

dishonest — of crops by tenants, p. 842.

dishonest — by partner, p. 840.

dishonest — of crops during rttachment, p. $41.

— of property mark with intent o injure, S. 489, p. 967.

REPETITION— *

— or continuance of public nuisance after injunction to discontinue, G. 291, p. 486.
— defamatory matters is publication thereof, p. 9C8. '

INDEX

87

REPORT —

public servant corruptly making a— in judicial proceeding contrary to law, S. 219,
p. 400.

publishing or circulating any— conducting to public mischief, S. 506, p. 1040.
publication of — of proceedings of court when not defamation, S. 499, Excepn. 4,
p. 991.

REPUTATION—

forgery for purpose of harming — , S. 409, p. 900.

what is harming a— by defamatory statement, S. 499, Excepn. 4, 991.

threat of injury to — when criminal intimidation, S. 503, p. 1036.

RES NULLIUS —

no criminal misappropriation of—, p. 700.

RESCUE—

— of another person from lawful custody, S. 225, p. 407, S. 225-13, p. 410.

- — of a thief from the custody of a daffadar, p. 409.

— from illegal arrest, p. 408.

— from custody when arrested under illegal warrant, p. 409.

— of a person arrested under a valid order, p. 642.

— of state prisoner or prisoner of war, S. 130, p. 213.

RESERVOIR —

fouling water of a public — ,S. 277, p, 409.

RESISTANCE—

what is — to the execution of any law or legal process, pp. 224, 225.
whether — to execution of legal process by unauthorised person constitutes unlaw-
ful assembly, p. 225.

right of strangers in — of execution of legal process, ib.

to taking of property by lawful authority of public servant, S. 183, p. 318.
—to illegal attachment, p. 319.

—to a bailiff seizing a woman in execution of a decree for restitution of conjugal
rights whether obstructing a public servant, ]>. 322.

— to a civil court process, p. 323.

— to the execution of a bad warrant, pp. 323, 324.

- by a person to his lawful apprehension, S. 224, p. 400.

—to lawful apprehension of another person. S. 225, p. 407, S. 225-B, p. 410.

--to arrest under invalid warrant, pp. 412, 413.

— to apprehension of deserter from Army, p. 414.

RESTITUTION— *

obtaining — of property to screen offender from punishment or abandon prose-
cution, S. 213, p. 387.

giving, causing or offering — of propertv in consideration of screening offender, etc.,
S. 214, p. 388.

RESTITUTION OF STOLEN PROPERTY-

—on a conviction for theft, p. 697.
taking gift to help in, S. 215, p. 391.

RESTRAINT—

theft after preparation mad£ for causing, etc., S. 352, p. 717.

See Wrongful Restraint.

RETAINING—

•—stolen property, S. 412, p. 802.

RETRACTED STATEMENT—

• «

no conviction for 4*eyury in — , p. 352.

THE INDIAN PENAL CODE

RETURN—

false — of the service of summons, p. 310.
unlawful — from transportation, S. 220, p. 414.

REVOLVER—

— not an explosive substance, p. 480.

RIDING—

rash — on a public way, S. 279, p. 471.

RIGOROUS IMPRISONMENT—

— as a kind of punishment, S. 53, p. 56.

RIOTING—

temporary occupation obtained by force is no defence to charge of p. 228.
using force for the maintenance of a right is not — , pp. 228, 229.
owner of land forcibly ejecting a person in possession whether commits — , p. 229.
right of private defence how far a justification for — , pp. 231, 242, 247, 249.
no offence of — if thr common object is to rescue property attached under warrant
without any court seal, p. 225.
exceeding right of private defence, p. 249.

violence used by some of the members of unlawful assembly constitutes — , p. 231.
definition of—, S. 140, p. 237.
punishment for — , S. 147, ib .

— under English law, pp. 221, 222, 237.

violence against inanimate object does not constitute — , p. 237.
joint trial of opposing factions for — , p. 238.
what the prosecution must prove in a charge for — , p. 242.
what the defence must prove in a charge for — , pp. 242, 243.
misdirection in jury charge for — , p. 241.
judgment of appellate court in a conviction for — , p. 243.
whether a conviction under another section legal when the charge for— fails, p. 244.
sentence for — whether legal when the accused had been punished for specific
acts constituting the common object, p. 245.
common object in the offence of—, pp. 245, 240.

See Common Object.

— armed with deadly weapon, S. 148, p. 249.
assaulting, etc., public servant suppressing — , S. 152, p. 258.
liability of a person for whose benefit — is committed, S. 155, p. 206.
liability of the owner or occupier of land on which — is committed, S. 154, pp. 264,
266.

being; hired to take part in — , S. 158, p. 268.

causing by disobeying orders of public servant, S. 188, p. 327.

giving provocation with intent to cause — , S. 153, p. 259.

liability of the owner or occupier of land on which — is committed, S. 154, p. 264.
failure to give notice of — or to use lawful means for preventing or suppressing
it—, S. 154, ib .

difference between — and affray — , p. 209.

See Unlawful Assembly.

RIVER—

mischief by acts rendering impassable or less safe a — , S. 431, p. 859.

ROAD—

» * mischief by acts rendering impassable or less safe a public — , S. 431, p. 859.
driving on the wrong side of the — , p. 473.

ROBPERS-

„ penalty for harbouring — , S. 216A, p. 395.

ROBBERY— fc ‘

definition of—, S. 390, p. 728.

the essence of the offence, p. 729. *

^jnere use of violence does not convert theft into**-, v p. 730.

INDEX

89

ROBBERY — Contd .

thief attacking pursuers not guilty of — , p. 730.
dishonest intention a necessary ingredient, p. 731.
threats of future injury not sufficient, p. 732.
distinction between — and extortion, p. 719, S. 390, p. 728.
difference between — founded on extortion and — founded on theft, p. 731.

— when becomes dacoity, S. 391, 732.

punishment for — , S. 392, ib.

attempt to commit — , S. 393, p. 733.

voluntarily causing hurt in committing — , S. 394, p. 734.

— with grievous hurt or attempt to cause death or grievous hurt, S. 397, p. 743.
attempt to commit — armed with deadly weapon, S. 398, p. 746.
belonging to or being associated with a gang for purpose of committing — , S. 401,
p. 760.

See Dacoity.

RUMOUR —

publishing or circulating any — conducing to public mischief, S. 506, p. 1040.

RUPEES—

See Company’s Rupees.

SACRED—

injuring or defiling — object of a class, S. 295, p. 497.

distinction between— object and object of respect or veneration, p. 498.

SAFETY —

offences affecting public — , Chap. XIV, p. 463.

SAILOR —

abetting mutiny by — or seducing — from duty, Ss. 131, 132, p. 216.
abetment of assault by — on his superior officer, Ss. 133, 134, pp. 216, 217.
abetment of desertion of — , S. 135, p. 217.

harbouring a — who has deserted, S. 136, ib.
abetment of insubordination by — , S. 138, p. 219.

circulating or publishing statement, etc., to cause — to mutiny or fail in duty,
S. 505, p. 1040.

SALE—

obstructing — of property offered for sale by authority of public servant, S. 184,
p. 320.

illegal purchase or bid at a — held by authority of public servant, S. 185, ib.

— of noxious food or drink, S. 273, p. 466.

— of adulterated drugs, S. 27 p. 468.

— of one drug as a different drug or preparation, S. 276, p. 469.

— of obscene books, etc., Ss. 292, 293, pp. 487, 491.

—of a person as slave, S. 370, p. 673.

— of a minor for purposes of prostitution, etc., S. 372, p. 674.

— of goods marked with a counterfeit trade mark or property mark, S. 486, p. 963.
— of forged or counterfeit currency note or bank note, S. 489-B, p. 967.

—of printed or engraved substance containing defamatory matter, S. 602, p. 1036.

SCHOOLMASTER—

limit of personal chastisement by — , p. 636.

SCREENING AN OFFENDER—*

giving false information for the purpose of — , S. 201, p. 361.

causing disappearance of evidence of offence, S. 201, ib.
obtaining gratification for — , & 213, p. 387.
agreement for — not punishable, p. 388.
giving or offering gratification, etc., for — , S. 214, ib.

SEAL—

making tor counterfeiting a — oi* possessing a counterfeit — with intent to commit
forgery. Ss. # 47«, 473, pp. 939, 940. •*

90

THE INDIAN PENAL CODE

SEAMARK—

exhibiting a false — , S. 281. p. 475.

mischief by destroying, moving or rendering less^ useful a — , S. 433, p. 861.
SEARCH—

assault on police conducting an illegal search, p. 640.

— without proper warrant, ib.

SECRET—

concealing birth by — burial or disposal of the dead body of a child, S. 318, p. 691.
SECRETING—

fraudulently or dishonestly — a will, authority to adopt or a valuable security.
S. 477, p. 943.

SECTION—

definition of—, S. 50, p. 53.

SECURI1Y —

See Valuable Security.

SEDITION—

what is — under English law, p. 202.

words or acts intended to cause — , S. 124- A, p. 201.

intention is an essential element, pp. 202, 204-206.
gathered from other aritcles, p. 206.
state of country, public opinion to be considered, p. 205.
the question of intention is one of fact, p. 205.
truth is no defence, p. 207.

brings or attempts to bring into hatred or contmept is the gist of offence, p. 207.
abuse of Government officials, p. 202.
attempts, meaning of, p. 208.
disaffection, meaning of, ib.
government established by law and order, ib.

includes executive power in action, ib.
article must be read as a whole in a fair, free and liberal spirit, pp. 205, 208.
journalist is not expected to write with precision oHawyer, p. 204.
preaching Home-rule is not — , p. 203. " ^

previous speech is admissible, p. 205.
republication of seditious articles, p. 204.

historical review if omits to point out good done by British is — , p. 205.

liability of printer and publisher of newspaper, p. 206.

real and not literal sense of writing is required, ib.

meaning must not be taken from isolated passages, ib.

joint trial of printer and publisher, p. 210.

evidence, p. 209.

forfeiture, p. 210.

jurisdiction, ib.

place of trial, ib.

sanction, ib.

trial in High Court by special jury, ib.
appeal to Privy Council, ib.

^^EpUCTION —

meaning of — , pp. * 666-667.

kidnapping or abducting a woman with a view to — , S. 366, p. 662.

r •

SELF-CONTROL—

*

provocation to be a defence in murder must deprive the accused of — , pp. -520, 530.

«

SELF-PRESERVATION—

doctrine of — , pp. 109-111.

INDEX

91

SENTENCE—

— in specific offences, p. 6.

— of transportation when inflicted, p. 57.

— of death when inflicted, p. 58.

— of death how commuted, S. 54, p. 59.

— of death is postponed in case of pregnant woman, p. 60.
— of penal servitude, to whom applicable, p. 58, S. 60, p. 60.
— of forfeiture, its ground, p. 68.

— of forfeiture, its classification, ib.

— of fine, principle in awarding, p. 59.

— of whipping where applicable, ib.

cases where separate — held illegal, pp. 78-88.

where legal, pp. 70, 77, 78, 81, 82, 83.
cases under Cr. P. Code as amended, p. 83.

SEPARATE CONVICTION—

— under Secs. 161 and 165 when illegal, p. 275.

— for fraudulently making false claim and for falsely attesting the plaint illegal,

— for theft and concealing stolen property not legal, p. 800.

— for mischief and theft, p. 852.

— under Secs. 467 and 471, pp. 926, 934.

SEPARATE SENTENCE—

cases where — held legal or illegal, pp. 70-83.

— for rioting and hurt, pp. 240, 241, 250, 254, 001, 603, 604.

— for rioting and offence under S- 353, p. 240.

— for rioting and criminal trespass, ib.

— for rioting and grievous hurt, pp. 240, 241.

— for rioting and offences under Ss. 342 and 604, p. 241.

— under Ss. 323 and 149 when held legal, p. 254.
where held illegal, p. 255.

— under Ss. 332 and 333 while convicted under S. 152 is illegal, p. 259.

— under S. 174 of a person who has given a recognizance bond for appearance
is not usual though legal when the bond has been forfeited, p. 299.

— under S. 201 along with conviction of murder illegal, p. 363.

— under Ss. 232 and 235 illegal, p. 426.

— under Ss. 317 and 304, p. 689.

— under Ss. 411 and 414 not legal, p. 806.

SERVANT—

property in possession of — is in* possess ion of master, S. 27, p. 34.
meaning of the term — of the Queen, S. 14, p. 21.

applicability of the Code to — of the Queen committing offence in Foreign State,
S. 4. p. 11.

liability of — to communicate the occurrence of suspicious death, p. 305.
liability of — for theft when committed under orders of master, p. 703.
theft by — of property in possession of master, S. 381, p. 714.
liability of master for the rash-driving of — , p. 473.

who is a—, pp. 715, 716, 781, 782.
criminal misappropriation by — , p. 759.
criminal breach of trust by — , S. 408, p. 779.

non-liability of — for mischief by reason of acts done bona fide under orders of
master, p. 847. * < *

destruction, etc. of books, accounts, etc., by a—, S. 477* A, p. 945.

SERVANT OF THE QUEEN—
definition of — •, S. 14, p. 21.

SERVICE—

breach of "contract of— to atten<f on or supply wants of helpless person, S. 491,

p. 972.

THE INDIAN PENAL CODE

92

SERVICE OF PROCESS —

See Process.

SERVICE OF SUMMONS—

See Summons.

SEVERAL OFFENCES—

limit of punishment of — , S. 71, p. 73.

SEXUAL INTERCOURSE—

— within enclosure of a tomb or mosque, p. 498.
death casued by — , p. 573.

— causing grievous hurt to wife, p. 018.

kidnapping or abducting a woman to seduce her to — , S. 366, p. 062.

— by a man by deceitfully inducing in the woman a belief of lawful marriage,
S. 493, p. 972.

— with the wife of another, S. 4£7, p. 978.

SHIP —

See Vessel.

SHIVA LINGAM—

pouring cocoanut oil over — if offence, p. 499.

SHOOTING—

causing hurt or grievous hurt by any instrument for — , Ss. 324, 326, pp. 600, 604.
— with intention to kill, S. 307, ill. (a), p. 576.
accident in — , p. 107.

SIGN—

fraudulently or dishonestly signing,, etc. a document, S. 404 first, p. 905.
fraudulently or dishonestly causing a lunatic or drunken person to — a document,
S. 464 thirdly, ib.

refusal to — statement, S. 180, p. 309.
refusal by witness to— deposition, ib.
refusal by accused to — confession, ib.
refusal to — receipt for a summons, p. 298.

SIGNATURE—

a man's — of his own name may amount to forgery, S. 404, Expln. 1, p. 906.
SINGULAR NUMBER— 0

— includes plural, S. 9, p. 20.

SLANDER—

difference between — and libel under English law, p. 996.
no distinction between— and libel under Penal Code, p. 995.

SLAVE—

See Slavery.

SLAVERY—

meaning of — , pp. &72, 673.

kidnapping or abducting in order to subject person to — , S. 367, p. 669.

. 4 buying or disposing of any person as slave, S. 370, p. 072.
habitual dealing in slaves, S. 371, p. 674!

Flight harm—

act causing — is no offence, S. 95, p. 136.

instances of — , p. 137.

instances of what are not—, p. 138.

INDEX

93

SMALLPOX—

inoculation with — when no offence, p. 462.
carrying child— through public street, ib.
refusing to remove a child with — to hospital, ib.

SODOMY—

See Unnatural Offence.

SOLDIER—

limits of the justification of — to fire, p. 98.
meaning of — , S. 131, Expn., p. 216.
abetment of mutiny by — , S. 131, ib .
seducing a — from duty, S. 131, ib.

abetment of assault by — , on superior officer, Ss. 133, 134, pp. 216, 217.

abetment of desertion of — , S. 135, p. 217.

harbouring a — who has deserted, S. 136, ib.

abetment of insubordination by — , S. 138, p. 219.

wearing garb or carrying token used by — , S. 140, p. 220.

publishing or circulating rumour, report, etc., to cause a — to mutiny or fail in
duty, S. 505, p. 1040.

SOLEMN AFFIRMATION—

— included in the term ' oath,’ S. 51, p. 53.

SOLITARY CONFINEMENT—

rules regarding sentence of — and execution of such sentence, Ss. 73 and 74, pp.
85, 86.

-not a substantive sentence under code, p. 85.

- - in cases of imprisonment for default of fine is illegal, ib.

— cannot be passed for offence under special or local law, ib.

— in summary trial, p. 86.

— in default of furnishing security for good^ behaviour, ib.
cumulative sentence of — , ib.
limit of — , S. 74, ib.

SOUND—

making — to wound religious feeling, S. 298, p. 505.
making — to insult the modesty of woman, S. 609, p. 1044.

SOVEREIGN—

the word * Queen * includes — of ^ie United Kingdom, S. 13, p. 21.
foreign — exempted from the operation of the code, p. 8.
no act of State between — and subject, p. 103.

SPECIAL CONSTABLE—

refusal to serve as — , p. 298.

SPECIAL LAW—

— not affected by Penal Code, S. 6, p. 17.

offence includes breaches of — in certain cases, S. 40, p. 49.

definition of — , S. 41, p. 60.

conflict between Penal Code sfad — , p. 18. *

Whipping Act is not a — , p. 60.

no exemption to a child under seven years for offence under — , p. 112.
no conviction under code for rash and negligent driving when there is— for k, -
p. 474.

SPLEEN—'

rupture o&deseased — , pp. 516, 616, 695, 603.

94

THE INDIAN PENAL CODE

SPRING —

See Reservoir.

STABBING —

— in a vital part and causing death if murder, p. 527.

causing hurt or grievous hurt by any instrument for — , Ss. 324, 326, pp. 600, 604.

STAMP —

obliterated — p. 443.

See Government Stamp.

STATE OFFENCES—

what acts constitute — , Chap. VI, p. 193.

circulating statements, etc., conducing to — , S. 605, p. 1040.

STATE PRISONER—

allowing or aiding escape of, or harbouring, etc., a — , Ss. 128, 130, pp. 212, 213,
meaning of — , p. 212.

STATEMENT—

publishing or circulating any— conducing to public mischief, S. 505, p, 1040.
refusing to sign — , S. 180, p. 309.

STATUTE—

Construction of — , pp. 4, 5.
provisos, p. 7.
marginal notes, p. 6.
illustrations, ib.
punctuation, ib.

proceedings of the Legislative Council, p. 5.
reports of the Select Committee, ib.
statements of objects and reasons, ib.

STATUTE 3 & 4, Wm, IV, Cap. 85 ( Act for the better government of India ) —
provisions of — , not affected by the code, S. 5, p. 17.

STEAM—

letting off of — in a public thoroughfare, p. 615.

STOLEN PROPERTY -

definition of — . S. 410, p. 790. f

essential ingredients of the offence, p. 794.

guilty intention is essential, p. 799.

guilty knowledge is essential, ib.

possession should be traced to accused, pp. 793, 795.

dishonestly receiving—, S. 411, p. 791.

receiver of— in foreign territory cannot be tried by British Indian Court, p. 10.
exclusive possession is necessary, p. 797.
when house occupied by several persons, ib.
joint family, ib.

father and son living together, son when not liable, keys with father, ib.

husband and wife, pp. 797, 798.

duty of accused to account for possession, p. 800.

mere failure tcJ account for possession* not sufficient, p. 796.

if the explanation offered by accused may be reasonably true accused
cannot be convicted upon presumption, pp. 792, 796.
owner may not be known, p. 795. ,

merely pointing out stolen property insufficient, pp. 795, 796.
identification of the stolen property, p. 795.

actual delivery to accused need not be proved, p. 796. « ' *

actual and nofc constructive possession necessary, p. 797.
actual positive knowledge that property is stolen not necespary, p. 798.
knowledge of place of concealment, p. 796. ,

INDEX

95

STOLEN PROPERTY — Contd.

purpose of the accused immaterial, p. 799.

evidence of possession of other stolen goods whether admissible, ib.
presumption of guilt when possessing property some time after theft,

p. 800.

evidence of the offence, pp. 801, 802.
evidence of value of stolen property necessary, p. 795.
restoration of — after conviction for theft, p, 697.
taking gift to help in recovery of — , S. 215, p. 391.

misdirection in jury charge in a trial for the offence of receiving — , p. 712.
receiving — , where property was obtained by dacoity, or from a dacoit, S. 412,
p. 802.

receiving — belonging to different owners, pp. 795, 803.
habitually receiving or dealing in — , S. 413, p. 804.

how to prove habit, ib.
assisting in concealment of — , S. 414, p. 805.

separate conviction for theft and concealment of — not good, p. 806.
separate sentence for receiving — and concealing — not legal, ib.

STONES —

— when quarried and carried are moveable property, p. 28.
throwing — on a person's house, p. 615.

STUPEFYING DRUG—

administration of — with intent to cause hurt, S. 328, p. 606.

See Drug.

SUDDEN FIGHT —

death caused in — without premeditation is not murder, S. 300, Exception 4,
pp. G19, 540, 541, 542.

SUDDEN QUARREL—

death caused in a — , S. 300, Exception 4, pp. 519, 541.

SUFFERING AN ESCAPE—

negligently — of a prisoner, S. 223, p. 405.

SUICIDE—

taking part in — of adult, S. 300. Exception 5, p. 619.

taking part in — of minor is abetment of murder, S. 300, Exception 5, ill.
p. 519.

abetment of — , S. 306, p. 575.

abetment of — by child, insane, etc., S. 305, p. 574.

attompt to commit — , S. 309, p: 582.

— by woman raped owing to shame should not affect punishment for rape, p. 690.
SUMMONS —

absconding to avoid service of — , S. 172, p. 295.

preventing service of — or publication thereof, S. 173, p. 297.

throwing down of the — if an offence, p. 298.

refusal to receive a — , ib.

refusal to give a receipt for the — , ib.

non-attendance in obedience to a — from a public servant, S. 174, p. 298.
verbal order whether sufficient, p. 300.
place of attendance to be specified, ib.

it must direct appearahee before specified public servant, ib.
it must be by competent officer, pp. 300, 301.
porsonal service necessary, p. 301.
illness when an excuse, p. 302.
appearance by an agent, p. 300. •

when — is illegal or not legally served, no conviction for non attendance, pi 3uL
*faTse return of the service of — , p. 310.

SUPERIOR OFFICER —

abetment of assault by soldier or sailor on his—, S. 133, p. 216.

96

THE INDIAN PENAL CODE

SURGICAL OPERATION—

— when protected, S. 88, p. 126.

— by unqualified persons, p. 127.

— made negligently with crude instruments, p. 617.

— for child's benefit without guardian’s consent, S. 89, ill. p. 129.

SUTTEE—

abetment of — , p. 164,

— is an example of suffering death with her consent, p. 643.
SYPHILIS—

communication of — if an offence under S, 269, p. 463.

TAKING—

— away a married woman with criminal intent, p. 987.

— when complete in 4 kidnapping, * p. 661.

— is not confined to physical — p. 660.

— a minor, ib.

out of the keeping of lawful guardian, pp. 662, 655.

— in theft need not be permanent, p. 698, 708.

TANK—

fouling water of — by bathing, angling, etc., p. 470.

TENT—

theft in — used as human dwelling for custody of property, S. 380, p. 711.
criminal trespass on — , S. 442, p. 874.

TERRITORIAL WATERS JURISDICTION ACT—

See Appendix.

TESTAMENTARY DOCUMENTS—

THEFT—

See Will.

assault or criminal force in attempt to commit — of property carried by a person,
S. 366, p. 646.

definition of — , S. 378, p. 692.

dishonest intention at the time of taking necessary, pp. 697, 698.
no offence when taking is under bona fide claim of right, pp. 699, 702.
mistaken view of law, p. 702.

owner removing article given for repair without payment for work done,
ib.

creditor taking property of debtor, 'is guilty, ib.

taking need not be with intention of retaining permanently, pp. 698, 708.

meaning of taking, pp. 710, 711.

property must be in possession of some one , p. 706.

English law different on this point, pp. 702, 707.
taking may be from joint possession, p. 707.
meaning of possession, p. 707.
property must be moveable, p. 703.
earth, p. 704.
salt, ib.
water, ib.
boat, p. 706.

gas and electricity, ib. c

trees, p. 706.

taking must be without consent of the person in possession, p. 708.

point of distinction from English law, ib.

‘ what amounts to consent, S. 378, Expin., 6, p. 693.

consent obtained under misconception of fact, fraud or fear of injury,

v P 708. c . <

distinction between — a$d extortion, p. 719.
points of similarity between — and larceny, p. 694.

summary trial of — not proper when complicated question of title involved, p. 696.
joint* trial of — and receiving stolen property, pp. 695, 696*.
evidence of — , p. 696. r

INDEX

97

T H EFT — Con td.

no jurisdiction to review Magistrate's order, p. 697.
restoration of stolen property on a conviction for — , p. 697.
punishment for — , S. 379, p. 694.

— of crop, actual possession is necessary, p. 699.

— of one's own property, p. 699.

— of property while under attachment, p. 711.

property attached by receiver, removal by person claiming title, p. 699.

— as between husband and wife, pp. 709, 710,
liability of master for — committed by servant, p. 703.
liability of servant for — committed under master's orders, ib.
servant taking away master’s goods in lieu of wages, ib.

—by a child, p. 113.

— by a coparcener of joint property, p. 707.

dedicated bull, if can be subject of — , p. 706.

fish, if can be subject of — , pp. 706, 706.

human body, living or dead cannot be subject of — , p. 704.

separate sentences for — of property of two persons in the same room, p. 697.
separate sentences for — and housebreaking, p. 712.

— in dwelling house, etc., S. 380, p. 711.
theft from veranda, p. 713.
theft in a railway carriage, ib.
theft from compound or courtyard, ib.
theft of cloth spread out for drying on the top of house, ib.
theft from god own, p. 714.

— by clerk or servant of property in possession of master, S. 381, ib.

— after preparation for causing death, hurt or restraint, S. 382, p. 717.
intentionally running a vessel aground or ashore with intent to commit — , S. 439,
p. 866.

lurking house-trespass or housebreaking in order to commit theft, Ss. 464, 467,
pp. 888, 891.

— when amounts to robbery, S. 390, p. 728.

THIEVES —

belonging to a gang of — , S. 401, p. 760.

THREAT—

acts done under — when no offence, S. 94, p. 134.

— of assault on public servant when suppressing riot, etc., S. 162, p. 268.

— of injury to public servant, S. 189, p. 333.

—of injury to induce person to refrain from applying for protection to public
servant, S. 190, p. 334.

impertinent — to witness whether interruption of public servant sitting in judicial
proceeding, p. 420.

mere — to use force if a person persists in a course of conduct is not assault, p. 636
— of injury to person, reputation or property when criminal intimidation, S. 603,
p. 1036.

threat of criminal prosecution, ib.
threat of dismissal, p. 1037.

threat of coventional punishment by spiritual superior, ib.
threat by a president of self-constituted arbitration Court to pass ex parte
decree on default of appearance, ib.

THUG—

definition of — , S. 310, p. 683.
punishment for being a — , S. 311, ib.

TOOTH—

fracture or dislocation of — is grievous hurt, S. 320 seventhly, p. 696.

*

*

TRADp-r- # *

unlawfully engaging in— by public servant, S. 168, p. 383.
no definition of — in the code, ib.

enactments prohibiting public sefv^nts from engaging in—, p. 284,
G

. THE INDIAN PENAL CODE

OS

TRADE MARK—

offences relating to—, Chap. XVIII, p. 807.
definition of — , S. 478, p. 050.

no distinction between — and property mark under English law, p. 054.

— if includes rights of authors, ib.

— to be valid, it is not necessary that goods should be in market for any definite
time, p. 956.
no property in — , p. 955.

principle on which Court interferes infringement of — , ib , pp. 053, 056.
distinction between — and tradename, p. 954.

— and copyright, ib .

mode of determining infringement of — , p. 953.
test of determining infringement of — , ib.

bona fide disputes regarding infringement of — should be referred to civil Court,
pp. 953, 965.

what is using a false — , S. 480, p. 955
punishment for counterfeiting a — , S 483, p. 961.
selling, otc., goods bearing false — , S 486, p. 963.
punishment for using a false — , S. 482, p. 958.

onus of proving absence of fraudulent intention on accused, p. 069.
fraud need not be proved by prosecution, p. 953.
making or possessing instruments for counterfeiting — , S. 485, p. 063.
possessing a — for falsely denoting that any goods are the manufacture of a
certain person, S. 485, ib.

limitation of prosecution for infringement of — , pp. 962, 965.
false — on books, p. 965.

TRAFFICKING IN SLAVES—

punishment for — , S. 371, p. 674.

TRANSFER—

dishonest or fraudulent — of property to prevent distribution among creditors.
S. 421, p. 837.

fraudulent — of property to prevent its seizure, S. 206, p. 369.

TRANSLATION—

incorrect framing of — by public servant, S. 167, p. 283.

TRANSPORTATION—

— as a punishment under the Code, S. 53 secondly , p. 55.

— for life, its equivalent, S. 57, p. 61.

— for life may be commuted, S. 55, p. 60.

European or American to be sentenced to penal servitude instead of—, S. 56, ib.

calculation of fractions of — , S. 67, p. 61.

treatment of offenders sentenced to — until transported, S. 58, ib.

— may be awarded instead of imprisonment*,’ S. 59, ib.

cannot be substituted for imprisonment under local or special law, p. 63.
procedure while substituting — for imprisonment, ib.
must not exceed the term of imprisonment, S. 59, p; 61.
cannot be awarded in lieu of consecutive sentence of imprisonment for
7 years for two or more offences, p. 62.
for less than 7 years illegal, ib.
unlawful return from — , S. 226, p. 414.

offences punishable with — for life, Ss. 132, 195, 232, 302, 304, 376, 377, 305,
pp. 215, 354, 426, 546, 563, 687, 691, 735.
house -trespass to commit offence punishable with — for life, S. 450, p. 884.
giving or fabricating false evidence with intent to procure conviction of offence
*• t punishable with — for life, S. 195, p. 36^.

TREASON—

- • English law of high — , p. 104,
constructive — , p. k97 .

^trespass —

— on burial places, etjp., to wound feelings or insult religion, S. 207, p! 503,
meaning of trespass, p. 504.

— by a drunken man, S. 510, p. 1046. *

See Criminal Trespass,

INDEX

90

TRIAL —

exemptions from — by Indian Courts, pp. 7, 8.
TRUST —

See Criminal Breach of Trust.

TRUTH—

— no defence in sedition, p. 207.

in prosecution for false charge accused must get opportunity of proving — of his
complaint, pp. 378, 379.

— how far a defence in defamation, p. 1008.

UNBORN CHILD —

See Child,

UNDUE INFLUENCE—

definition of — at elections, S. 171-C, p. 289.
meaning of — at election, p. 290.
punishment for — at election, S. 171-F, p. 292.

UNFASTENING—

punishment for — closed receptacle containing property, S. 461, p. 896.

when the offender is entrusted with custody of the receptacle, S. 462
p. 897.

UNLAWFUL ASSEMBLY—

— definition of — , S. 141, p. 222.
essential ingredients of — , p. 223.

common object how ascertained, p. 224.

assembly lawful in inception may become unlawful by acts, pp. 230, 231.
exceeding right of private defence does not constitute — , p. 231.
persons disobeying order to disperse do not by such disobedience only constitute —

p. 226.

two opposite parties committing riot if constitute one — , p. 223.
no — if the common object is to rescue property attached under warrant without
Court seal, p. 226.

no — if common object is to resist execution of illegal order, ib.
resistance to execution of process by unauthorised person if constitutes — , ib.
repelling illegal aggression upon property does not constitute — , p. 228.
user of force by landlord to eject tenan t whose title has expired does not constitute
— , p. 229.

user of force for defensive purposes does not constitute — , ib.

persons having bona fide claim of grazing right on a land protesting against its
being ploughed up do not constitute — , pp. 229, 234.
obstructing police in the discharge of his duty constitutes — , p. 226.
preventing construction of a bundh to enforce a right to keep a river clear consti-
tutes — , p. 228.

cutting paddy attached under sec. 121 of the Bengal Tenancy Act constitutes,
p. 234.

being a member of-—, S. 142, p. 232.

charge should specify common object, p. 233.
offence committed when Hindu crowd threatens to carry off cows intended
by Mahomedans for sacrifice, p. 234.
punishment for being a member of — , S. 143, p. 232.
joining — armed with deadly weapon, S. 144, p. 234.

joining or continuing in — knowing it has been commanded to disperse, S. 146,
p. 236. ^ .

every member of — guilty of*offence committed in prosecution of common object, '
S. 149, p. 261.

not when offence is under Special Act, p. 263.
hiring or conniving at hiring, *tc., of persons to join — , S. 160, p. 263. *•

knowingly joining or continuing in — after it is commanded to disperse; S. 1M .
p. 267. -

* * * immaterial whither assembly stationary or moving, p. 258.

assaulting or obstructing public servant when endetfvouring to disperse — , S. 162,
f. 258.

liability of owner *>iu>ccupier of land on which— is held, S. 164, p. 264.
failure to give notice of — or to use lawful means for preventing or dispersing it,
S. 154, ib. 9 m »

100

THE INDIAN PENAL CODE

UNLAWFUL ASSEMBLY — Contd .

harbouring persons hired for — , S. 157, p. 267,
being hired to take part in — , S. 158, p. 268.

— when said to commit affray, S. 159, p. 269.

See Rioting.

UNLAWFUL COMPULSORY LABOUR —

See Compulsory Labour.

UNLAWFUL RETURN —

— from transportation, S. 226, p. 414.

UNLAWFUL TRADE—

i?

See, Trade.

UNNATURAL LUST —

kidnapping or abducting in order to subject person to — , S. 367, p. 669.

UNNATURAL OFFENCE —

punishment for — , S. 377, p. 691.
evidence of victim in cases of — , p. 692.

UNSOUND MIND—

fraudulently or dishonestly causing a man of— to sign, etc., a document, S. 464
thirdly, p. 905.

See Lunatic.

UNSTAMPED COPPER—

— is not coin though used as money, S. 230, ill. (b), p. 422.

UNWHOLESOME DRUG—

5^Drug.

VALUABLE SECURITY—

definition of — , S. 30, p. 37.

cancelled instrument whether a — , p. 38.
unstamped deed is — , ib.
blank document with forged signature is — , ib.
copy of base is not a — , p. 39.

acknowledgment receipt of a postal parcel is not a — , ib.
sunud conferring title of dignity whether a — , pp. 39, 927.

voluntarily causing hurt or grievous hurt to extort — or compel its restoration,
Ss. 329, 330, 331, pp. 607, 608, 609. *

wrongful confinement to extort — or compel its restoration, Ss. 347, 348, pp.
629, 630.

procuring the making, alteration or destruction of a — by cheating, S. 420,
p. 827.

forgery of — , S. 467, p. 924.

fraudulent or dishonest cancellation, destruction or secretion of or a mischief
in respect of a — , S. 477, p. 943.

destruction, etc., or falsification of a — of an employer by his clerk, servant or
officer, s. 477 -A, p. 945.

VALUABLE THING—

faking of — by public savant for inadequate eonsideration, S. 165, p. 280,
VESSEL —

meaning of—, S. 48, p. 53. t

rash or negligent navigation of—, S. 280, p. 475.

conveying person by water for hire in unsafe or overloaded — . S. .282, p. 476.

theft in a vessel— used as human dwelling or for custody of property, 'S. 3 80,
p. 711. *

mischief to any— of burden of twenty tons pr upwards, S. 437, p, 865.
when committed by fire or explosive substance,, S» 438, ib.

INDEX

101

VESSEL — Contd.

intentionally running a — aground or ashore with intent to commit theft, etc.,
S. 439, p. 866.

criminal trespass in a — , etc., S. 442, p. 874.

VITIATING ATMOSPHERE—

—when an offence, S. 278, p. 470.

VOLUNTARILY—

meaning of — , S. 39, p. 47.

VOLUNTARILY CAUSING GRIEVOUS HURT—

definition of — , S. 322, p. 697. *

See Grievous Hurt.

VOLUNTARILY CAUSING HURT—
definition of — , S. 321, p. 697.

See Hurt.

WAGING WAR—

meaning of — , p. 196.

levying war, what it means, ib.

— against the King and attempt, abetment preparation for or concealment of
design of — , Ss. 121, 123, pp. 194, 200.
conspiracy for — , S. 121A, p. 197.
collecting arms, etc., with intention of — , S. 122, p. 199.
concealment of design of — , S. 123, p. 200.

— against Asiatic Power in alliance with the King, S. 126, p. 210.
receiving property obtained by— against Asiatic Power, S. 127, p. 212.

WANDERING GANG OF THIEVES—

punishment for belonging to a — , S. 401, p. 760.

WANTONLY—

meaning of — , p. 260.

WAR—

See Waging War.

WAREHOUSEKEEPER—

criminal broach of trust by — , S.e407, p. 778.

WARRANT—

assault on constable executing — without disclosing provision for bail. p. 639.
search without proper — , p. 640.

arrest by police constable without — upon credible information, p. 640.
resistance of time-barred — , p. 641 .
resistance to defective — , ib.

WATER—

fouling — of public spring or reservoir, S. 277, p. 469.
mischief by wrongfully diverting — , S 430, p. 866.
diminution of the supply of water, p. 867.

WAY— •

See Public Wav.

• • i •

WEARING GARB OR CARRYING TOKEN—

—used by^joldier, S. 140, p. 220.*

— used by public servant, S. 171, p. 286.

102

THE INDIAN PENAL CODE

WEIGHTS AND MEASURES —

using false — , Ss. 264, 265, pp. 449, 450.

using smaller glass for measure of liquor, p. 451.
inspection of — by police, p. 450.

being in possession of false — with knowledge and intention, etc., S. 266, p. 451,
no conviction in absence of fraudulent intention, p. 462.
evidence of customers relevant for showing fraudulent intention, p. 453.
making or selling false — , S. 267, p. 453.

WHARFINGER—

criminal breach of trust by — , S. 407, p. 778.
meaning of — , ib.

WHIPPING—

— as a form of punishment is added by the Whipping Act, p. 59.

WHIPPING ACT—

— is not a special law, p. 50.

WIFE—

— whether competent to give evidence in cases of adultery with regard to her,
p. 981.

— not punishable as abettor in adultery, S. 497, p. 978.
reason for the exemption, p. 982.

— harbouring husband commits no offence, Ss. 136, 212, 216, Excepns., pp. 217,
385, 393.

rape upon — , S. 376, p. 682.

theft of husband's property by — , pp. 709, 710.

husband's liability for criminal misappropriation by — , p. 758.

WILL—

definition of — , S. 31, p. 39.
forgery of — , S. 467, p. 924.

mere antedating is not forgery, p. 928.
false will of a living person, ib.
forgery of a will of non-existent person, ib.
similarity of handwriting, ib.

fraudulent or dishonest cancellation, destruction, secretion, etc., of a — , S. 477,
p. 943.

mischief with regard to — , S. 477, ib.

WITCHCRAFT—

belief in being a victim of — whether a sudden provocation in murder, p. 531.
WITNESSES—

— in civil cases not legally bound to sign deposition, p. 51.

impertinent threats to — , p. 420.

reluctant and inconsistent evidence by — , ib.

chewing betel by — while under examination, p. 420.

indirect answers by — , ib.

disobedience by — of orders of magistrate, ib.

non-production by — of documents, S. 175, p. 302.

refusal by — to bind themselves by oath or affirmation, S. 178, p. 307.

refusal by — to answer on examination, S. 179, p. 308.

refusal by — to sign statements made by them, S. 180, p. 309.

* refusal to sign deposition, ib. v

WOMEN—

* definition of — , S. 10, p. 20. 1

causing miscarriage* of — with or without consent, Ss. 312, 313, pp. 583, 684.
"causing death of — by act intended to cause miscarriage, S. 314, p. 58g.
assault or criminal f^rce to — with intent to outrage her modesty, S. 3 £4, p. 642.
kidnapping or abducting — to compel her marriage, etc., S. 366, p. 662.
enticing, taking away, or detaining a married — with criminal intent, S. 498,
• p. 983. % •

INDEX 103

l

WOMAN — Contd.

word, gesture, etc., intended to insult the modesty of a — , S. 509, p. 1044.

^ indecent assault on — not necessarily an attempt to commit rape, p. 686.

See Abduction, Adultery, Rape.

WORDS—

— in the code referring to acts include illegal omissions, S. 32, p. 39.
utteiing — to wound religious feelings, S. 298, p. 505.
uttering — to insult the modesty of woman, S. 509, p. 1044.

— of reproach or abuse whether sufficient provocation in cases of murder, p. 529.
mere — do not amount to assault, S. 351, Expin., p. 634.

WORKMAN'S BREACH OF CONTRACT ACT—

complaint under — whether a criminal proceeding, p. 383.

Ss. 490, 492 — repealed by Act III of 1925, pp. 971, 972.

WORSHIP—

injuring or defiling place of — to insult religion, S. 295, p. 497.
disturbing assembly engaged in religious — , S. 296, p. 601.

mischief by fire or explosive substance with intent to destroy building used as a
place of — , S. 436, p. 863.

WRITING—

— expressing the terms of a contract is document, S 29 ill., p. 30.

—containing directions or instructions is document, S 29 ill , ib.
destruction etc , or falsification of any — of an employee by his clerk, servant
or officer, S 477A, p. 945.

WRITTEN STATEMENT—

false declaration in a — , p. 338.

WRONGFUL—

— not defined in the code, p. 29.

WRONGFUL CONFINEMENT—

definition of — , S. 340, p. 622.

malice not essential, p. 623.
period of confinement immaterial, ib.
detention through moral force is enough, ib.
no offence unless detention illegal, ib.
differ, nee between — and wrongful restraint, p. 618.
arrest by police officer in bona fide exercise of power whether — , \ . C23.
arrest by police without warrant if — , p 624.
arrest by private person when not — , ib.
punishment for — , S. 342, p. 625.

when for 3 or more days, S. 343, p. 627.

when for 10 or more days, S. 344, ib.

when a liberation writ has been issued, S. 345, p. 628.

when the confinement is secret, S. 346, p. 629.

when committed for extorting property or constraining to illegal act,
S. 347, ib.

when committed for extorting confession cy compelling restoration of
property, S. 348, p. 630.

assault or criminal force in attempting — of a person, S. 357, p. 646.

— of kidnapped or abducted person, S. 368, p. 670.

WRONGFUL GAIN—

definition of — , S. 23, p.®28.

— includes temporary wrongful gain, p. 29.
t use by pjpdgee of a pledged turljan if—, ib.

See Dishonestly.

104

THE INDIAN PENAL CODE

WRONGFUL LOSS —

definition of — , S. 23, p. 28.

mere detention of a thing or some time if — , p. 29.

causing injury to neighbour’s wall by digging trench on one\ own land if — , p.
— include? temporary loss, ib.
forcible seizure of cattle is — , p. 30.

See Dishonestly.

WRONGFUL RESTRAINT —

— of Governor-General, etc., with intent to compel or restrain exercise of lawful
power, S. 124, p. 200.
definition of — , S. 339, p. 619.

obstruction must be physical, p. 620.
obstruction must be direct and actual, ib.

restraint must be directed to a person and not to anything else, p, 621.
— when amounts to wrongful confinement, S. 340, p. 622.
difference between — and wrongful confinement, p. 618.

— if can be committed by joint owner, p. 620.
locking up a house under bona fide claim if — , p. 622.
punishment for — , S. 341, p. 624.

committing mischief after preparation made for — 440, p. 866.
committing house -trespass after preparation made for causing — , S. 452, p. 886.
committing lurking house trespass or house breaking after preparation made for
causing — , Ss. 455, 458, pp. 889, 893.

WRONGFUL RETENTION

— is gaining wrongfully, S. 23, p. 28.

YEAR —

computation of- S. 49, p. 53.

The Bengal Suppression of Terrorist
Outrages Act, 1932.

(Bengal Act XII of 1932).

An Act to provide for suppressing the terrorist movement in

Bengal.

WHEREAS it is expedient to make special provisions
for the purpose of suppressing the terrorist movement m Bengal
and to provide for the speedier trial of offences committed m
furtherance of or in connection with the said movement,
AND WHEREAS the previous sanction of the Governor
General has been obtained under sub-section (3) of section 80A
of the Government of India Act to the passing of this Act ,

It is hereby enacted as follows

1 , (1) This Act may be called the Bengal Suppression of

Terrorist Outrages Act, 1932.

r 2 \ -phis section, section 2, Chapter II and the Schedule
extend to the whole of Bengal. The Local Government may
by notification in the Calcutta Gazette, extend any 01 all of the
provisions of Chapter I to any area in Bengal.

(oi This Act shall continue in force as long as the Bengal
Criminal Law Amendment Act, 1930, remains in force.

2 . In this Act, unless there is anything repugnant in the

subject or context, — . .

(n\ " ahsconder ” means a person against whom a
warrant is in force on account of an offence under
the Indian Penal Code or any other law or in
respect of whom an order of arrest has 1 ? cen " ia .
under sub-section (1) of section 2 of the Bengal
Criminal Law Amendment Act, 1930 ;
the Code” means the Code of Criminal Procedure.
1898; and

-scheduled offence” means any offence specified
in the Schedule to this Act. •

5 & 6 Geo.
V. c. 61 ; 6

6 7 Geo. V,
c. 37 ; 9& 10
Geo. V, c.
101 .

Short title,
extent and
duration.

(b)

(*)

Beng. Act
VI of 1930.

Definitions.

Act XLV of
1860.

Act V of
1898.

CHAPTER I.

Powers,

i /t j Any officer of Government authorised in this_ behalf pQ W cr to
b\r or special order of the Local Government may detain “and

sag!*:;

to be acting or aboitt tp act in a manner prejudicial to the ^ ving sus .
public safety or peace to give ai» aceouJit- of hiswentity ana-^-.i..

cviii

THE INDIAN PENAL CODE

Power to
take pos-
session of
immoveable
property.

Power to
take posses-
sion of move-
able pro-
perty

Power to
prohibit or
limit access
to ascertain
places.

movements, and may arrest and detain him for a period not
exceeding twentyfour hours for the purpose of obtaining and
verifying his statements.

( 2 ) An officer making an arrest under this section may
in so doing use any means that may be necessary to effect the
arrest. ..

4. ( 1 ) If, in the opinion of the Local Government, it is
necessary to utilize any particular land or building for quarters
or offices for public servants, or for the accommodation of troops
or police or prisoners or persons in custody in places where «
public lands or buildings are not sufficient for the purpose, the
Local Government may, by order in writing, require the
occupier , or other person in charge of the land or building to
place it at the disposal of Government at such time as may be
specified in the order, together with the whole or any part
specified in the order of any fixtures, fittings, furniture or other
things for the time being in the building ; and the Local
Government may utilize such land, building, fixtures, fittings,
furniture or other things in such manner as it may consider
expedient :

Provided that reasonable notice and reasonable facilities
for withdrawal shall be given to persons occupying any such
building before possession is taken under this section :

Provided also that the land or building—

(a) shall not be so utilized as to wound the religious

feelings of the owner or of the persons who were
in occupation when possession was taken ; and

(b) shall not, as far as practicable, be so utilized as to

interfere with access to any place of worship
situated in or continguous to the land or building.

( 2 ) In this section "building” includes any portion or
portions of a building whether Separately occupied or not, but
does not include any structure set apart for public worship.

5. If, in the opinion of the District Magistrate, it is
necessary to utilize any product, article or thing, or any class
of product, article or thing, in furtherance of the purposes of
this Act, the District Magistrate may, by order in writing,
require any owner or person in charge of such product, article
or thing to place it at the disposal of Government at such time
and place as may be specified in the order ; • and the District
Magistrate may utilize it in such manner as he may consider
expedient.

6. The District Magistrate may, by order in writing,
prohibit or limit, in such way as he may think expedient for
the purposes of this Act, access to any building or place in the
possession or under the control of Government or of any railway
administration or local authority, or to any building or place
in the occupation, whether permanent or otherwise, of His
Majesty’s Naval, Military or Air forces or of any police force,
or to ahy piafee ln the-vicnity ,o| v any such building or place.

SUPPRESSION OF TERRORIST OUTRAGES ACT cix

7. The District Magistrate may, by order in writing, Power to
prohibit or regulate, in such way as he may think expedient Simulate or
for the purposes of this Act, traffic over any road, pathway, traffic,
bridge, waterway or ferry.

8. (i) The District Magistrate may, by order in writing, Power to
require any person to make, in such form and within such time regulate .
and to such authority as may be specified in the order, a ”!^roTt, 0
return of any vehicles or means of transport owned by him or v

in his possession or under his control.

(2) The District Magistrate, if, in his opinion, it is expedient
for the purposes of this Act, may, by order in writing, require
any person owning or having in his possession or under his
control any vehicle or means of transport to take such order
therewith for such period as may be specified in the order.

9. The Collector shall, on the application of any person Compensa-
who has suffered loss by the exercise of the powers conferred tion -

by section 4 or section 5 or sub-section (2) of section 8, award
to such person such reasonable compensation as he thinks proper.

10. (1) The District Magistrate may, by order in writing Powers re-

published in such manner as he thinks best adapted for informing garding arms,
the persons concerned,- ammunition.

(a) prohibit or regulate the purchase, sale or delivery of,

or other dealing in, any arms, parts of arms,
ammunition or explosive substances ; or

(b) direct that any person owning or having in his

possession or under his control any arms, parts
of arms, ammunition or explosive substances, shall
keep the same in a secure place approved by the
District Magistrate or remove them to any place
specified in the order.

(2) The District Magistrate may take possession of —

(a) any arms, ammunifion or explosives, or

(b) any tools, machinery, implements or other material 8

of any kind, likely, in his opinion, to be utilized,
whether by the owner or by any other person,
for the commission of any scheduled offence,
and may make such orders as he may think fit for the custody
and disposal thereof.

11 . The District Magistrate may require any person

residing in the district to assist in the restoration and maintenance require the
of law and order and in thp protection of property in the assistance of
possession or under the control of Government, or of any any person,
railway administration or local authority, in such manner and
within such limits as the District Magistrate may specify:

Provided that before passing any order under this section
the District Magistrate shall satisfy himself that such order
is not of a harassing or humiliating nature or incompatible with
the ability or position in life of the person concerned :

' Provided also fhaVno female person shall be required to
render any assistance. .. _ .

cx the Indian penal code

Power to 12.' The power to issue search-warrants conferred by
•""l s f* rch * section 98 of the Code shall be deemed to include a power to
warran . issue warrants authorising —

(a) the search of any place in which any Magistrate

mentioned in that section has reason to believe
that any scheduled offence or any offence punishable
under this Act has been, is being or is about to be
committed, or that preparation for the commission
. of any such offence is being made ;

(b) the seizure in or on any place searched under clause (a)

of anything which the officer executing the
warrant has reason to believe is being used, or is
intended to be used, for any purpose mentioned
in that clause ;

and the provisions of the Code shall, so far as may be, apply to
searches made under the authority of any warrant issued, and
to the disposal of any property seized, under this section.

General po- 13. Any authority on which any power is conferred by
wer of or under this chapter may authorise any person to enter and
seateh. search any place, the search of which, such authority has reason
to believe to be necessary for the purpose of —

(a) ascertaining whether any order given, direction made,

or condition prescribed in the exercise of such
power has been duly complied with ; or

(b) generally, giving effect to such power or securing

compliance with, or giving effect to, any order
given, direction made or condition prescribed in
the exercise of such power.

Power to
give effect
to orders if
disobeyed.

Imposition
of collective
fine on in-
habitants of
turbulent
area*-

14. If any person disobeys or neglects to comply with
an order made, direction given, or condition prescribed, in
accordance with the provisions of this Chapter, the authority
which made the order, gave the direction or prescribed the
condition may take or cause to be taken such action as It thinks
necessary to give effect thereto but shall not in any case inflict
more harm than is necessary for such purpose.

15. (1) Where it appears to the Local Government that
the inhabitants of any area are concerned in the commission of
scheduled offences or are in any way assisting persons in com-
mitting such offences, the Local Government may, by notifica-
tion in the Calcutta Gazette, impose a collective fine on the
inhabitants of that area.

(2) The Local Government may - exempt any person or
class or section of such inhabitants from liability to pay any
portion of such fine :

Provided that such exemption shall not be based upon
communal or racial considerations. * • * _

The District Magistrate, after such inquiry as he may deem
necessary, shall apportion such fine' among the inhabitants,
who are liable collectively to pay it, and* such apportionment

Masgistmte^s

of the respective means of sucS'ltthabi^nts,

SUPPRESSION OF TERRORIST OUTRAGES ACT CXI

(4) The portion of »uch tine payable by any person may be
recovered irom him as a fine or as a public demand 1 under the
Bengal Public Demands Recovery Act, 1913.

(5) The Local Government may award compensation out
of the proceeds of a fine realised under this section to any
person who, in the opinion of the Local Government, has
suffered injury to person or property by the unlawful act of the
inhabitants of the area.

16 . Whoever disobeys or neglects to comply with any
order made, direction given, or condition prescribed in ac-
cordance with the provisions of this Chapter or impedes the
lawful exercise of any power referred to in this chapter, shall
be punishable with imprisonment which may extend to six
months, or with fine, or with both.

17 . (1) The Local Government may invest the District
Magistrate with the powers of a Local Government under
section 4.

(2) The Local Government may invest any Sub-divisional
Magistrate, or any police officer not below the rank of Deputy
Superintendent or any military officer not below the rank of
Captain, with any of the powers of a District Magistrate under
this chapter except powers under sub-section (3) of section 15.

(3) The District Magistrate may, by order in writing,
authorise any civil or military officer to exercise in a specified
area or in connection with a specified operation or series of
operations any of the powers of the District Magistrate under
this chapter or with which the District Magistrate has been
invested under sub-section (1).

18 . (1) The Local Government, subject to the control
of the Governor General in Council, may, by notification in the
Calcutta Gazette , make rules —

(a) to prevent communications with absconders and to
secure informatiem of the movements of absconders ;

(ft) to prevent attacks on the persons or property ol
His Majesty’s subjects, or to secure information
of such attacks and of designs to make such attacks ;

(c) to secure the safety of His Majesty’s forces and

.police ;

(d) to regulate the exercise of powers conferred by or

under this chapter ;

(e) to provide for the Custody pending production before

a Court of prisoners taken in circumstances in
which the provisions of the Code cannot be followed
without undue inconvenience ;

(•/) generally, tb carry out the purposes of this chapter.

l The words in italics in s. 15(4) were substituted for the word
* recoverable '■ by s. 2 .of the Bengal Suppression of Terrorist Outrages
(AsiendiKient) Act, Beng. Act XIX of 1932, v *;.

Ben. Act
III of 1913.

Penalty for
disobeying
orders under
this chapter.

Delegation
of powers.

Power to
make rules.

cxii THE INDIAN PENAL CODE

Bar of juris-
diction.

Operation of
other penal
laws not
barred.

Offences
under this
chapter to
be cogni-
zable and
non-bailable.

Certain other
offences to
be cogniz-
able and non-
bailable.

Act XLV of
1860.

XIV of 1908

District
Magistrate in
Calcutta.

(2) In making a rule under this section, the Local Govern-
ment may provide that any contravention thereof shall be
punishable with imprisonment .which may extend to six months,
or with fine, or with both.

19 . Except as provided in this chapter, no proceeding
or order purporting to be taken or made under this chapter
shall be called in question by any Court, and no civil or criminal
proceeding shall be instituted against any person for anything
in good faith done or intended to be done under this chapter.

20 . Nothing contained in this chapter shall be deemed to
prevent any person from being prosecuted under any other
law for any act or omission which constitutes an offence punish-
able under this chapter.

21 . Notwithstanding anything contained in the Code,
any offence punishable under this chapter shall be cognizable
and non-bailable.

22 . (1) Notwithstanding anything contained in the Code.,
an offence punishable under section 160, 186, 187, 188, 189,
227, 228, 505, 506, 507 or 508 of the Indian Penal Code, or
under section 17 of the Indian Criminal Law Amendment Act,
1908, shall be cognizable and non-bailable.

(2) Notwithstanding anything contained in section 195 or
section 196 of the Code, any Court otherwise competent to take
cognizance of am offence punishable under section 186, 187, 188,
228 or 505 of the Indian Penal Code may take cognizance of
such offence upon a police-report being made to it under clause
(«) of sub-section (1) of section 173 of the Code, but shall not
proceed with the trial unless it has received a complaint in
respect of such offence under section 195 or section 196 as the
case may be, and the absence of such complaint shall be reason-
able cause, within the meaning of section 344 of the Code, for
postponing the commencement of the trial and for remanding
the accused.

23 . If this chapter is extended to the Presidency town
of Calcutta, " District Magistrate ” shall, for the purposes of
this chapter, mean, in that town, the Commissioner of Police.

CHAPTER II. *

Special Magistrates.

Special Ma- 24 . Any Presidency Magistrate or Magistrate of the first
gistrate. class who has exercised powers a,s such for a period of not less
than four years may be invested by the Local Government
with the powers of a Special Magistrate under this Act.

jurisdiction 25 . Where, in the opinion of the Local Government, or
of Special of the District Magistrate if empowered by the Local Govern^
Magistrates. ment j n this behalf, there are reasonable grounds for* believing
that any person has committed a scheduled offence not punish-
• able with death in furtherance of or in connection with the
terrorist movement, or an offence punishable under this Act,

SUPPRESSION OF TERRORIST OUTRAGES ACT cxiit

the Local Government or District Magistrate, as the case may
be, may, by order in writing, direct that such person shall be
tried by a Special Magistrate.

26. (i) In the trial of any case under this Act, a Special
Magistrate shall follow the procedure prescribed by the Code
for the trial of warrant cases by Magistrates :

Provided that the Special Magistrate shall not be bound
to adjourn any trial for any purpose unless such adjournment is,
in his opinion, necessary in the interests of justice.

( 2 ) In matters not coming within the scope of sub-section
( 1 ), the provisions of the Code, so far as they are not inconsistent
with this chapter, shall apply to the proceedings of a Special
Magistrate; and for the purposes of the said provisions the
Special Magistrate shall be deemed to be a Magistrate of the first
class.

27. A Special Magistrate may pass any sentence authorised
by law, except a sentence of death or of transportation or
imprisonment for a term exceeding seven years.

28. ( 1 ) Where a Special Magistrate in any district passes a
sentence of transportation for a term not exceeding two years
or of imprisonment for a term not exceeding four years, or of
fine, an appeal shall lie to the Court of Session.

( 2 ) An appeal under sub-section ( 1 ) shall be presented
within thirty days from the date of the sentence.

29. No direction shall be made under section 25 for the
trial of any person by a Special Magistrate, for an offence for
which he was being tried at the commencement of this Act
before any Court but, save as aforesaid, a direction under the
said section may be made in respect of any person accused of a
scheduled offence, whether such offence was committed before
or after the commencement of this Act.

30. If in any trial under this chapter it is found that the
accused person has committed any offence, whether such offence
is or is not a scheduled offence, the Special Magistrate may
convict such person of such offence and, subject to the provision
of section 27 , pass any sentence authorised by law for the
punishment thereof.

31. A Special Magistrate may, if he thinks fit, order at
any stage of a trial that the public generally, or any particular
person, shall not have access to, or be or remain in, the room
or building used by the Special Magistrate a» a Court :

. Provided that where in any case the Public Prosecutor or
Advocate-General, as the case may be, certifies in writing to
the Special Magistrate that it is expedient in the interests of
the public peace or safety or of the peace or safety of any of the
: witnesses in the trial that the public generally should not have
access to, or be or remain in, the room or building used by the
Special Magistrate, as a Court, the Special Magistrate shall
order accordingly. * ,

Procedure of
Special

Sentences
by Special
Magistrates.

Appeals.

Retrospec-
tive effect of
directions
under sec-
tion 25.

Power to
convict for*
offence
proved.

Power to
exclude per-
sons or pub-
lic from pre*
cincts of
Court.

Powers of
Special Ma-
gistrates to
deal with
refractory
accused.

Special rule
of evidence.

Application
of ordinary
law.

Act XLV of
1800 .

VI of 19 Q 8 .
Xdl of i8.78.

CX1V THE INDIAN PENAL CODE

32. (i) Where any accused, in a trial before a Special
Magistrate, has; by his voluntary act, rendered himself incapable
of appearing before the Magistrate, or "‘haSsits- .^.fjprpaactitm
before the Magistrate, or behaves before the Magistrate in a
persistently disorderly manner, the Magistrate may, at any
stage of the trial, by order in writing made after such inquiry
as he may think fit, dispense with the attendance of such
accused for such period as he may think fit, and proceed with
the trial in the absence of the accused.

(2) Where a plea is required in answer to a charge from an
accused whose attendance has been dispensed with under sub-
section (1), such accused shall be deemed not to plead guilty.

(3) An order under sub-section (1) dispensing with the
attendance of an accused shall not affect his right of being
represented by a pleader at any stage ot the trial, or of being
present in person if he has become capable of appearing, or
appears before the Magistrate and undertakes to behave in an
orderly manner.

(4) Notwithstanding anything contained in- the Code,
no finding, sentence or order passed in a trial before a Special
Magistrate shall be held to be illegal by any Court by reason
of any omission or irregularity whatsoever arising from the
absence of any or all of the accused whose attendance has been
dispensed with under sub-section (1).

33. Notwithstanding anything contained in the Indian
Evidence Act, 1872,’ when the statement of any person has been
recorded by any Magistrate, such statement may be admitted
in evidence in any trial before a Special Magistrate if such
person is dead or cannot be found or is incapable of giving evi-
dence and the Special Magistrate is of opinion that such death,
disappearance or incapacity has been caused in the interests
of the accused.

34. The provisions of the Code and of any other law
for the time being in force, in so far as they may be applicable
and in so far as they are not inconsistent with the provisions
of this chapter, shall apply to &11 matters connected with,
arising from or consequent upon a trial by Special Magistrates.

THE SCHEDULE.

[See section 2 (c).]

(a) Any offence punishable under any of the following

sections of the Indian Penal Code, namely, sections 121, 121A,
122, 123, 148, 212, 2x6, 216A, 302, 304, 307, 324, 326, 327, 329,

33?, 333, 385. 386, 387, 392, 394. >395. 396, 397. 398, 399, 4«o,

401, 402, 431, 435, 436, 437, 438, 440, 454. 455. 457, 458, 459,

460 and 306; ~ ;;

(b) any offence under the Explosive Substances Act, 1908 ;

(c) any offence under the Indian Arms Act, 187.8;

(d) any attempt or conspiracy to commit, or any abetment
of, any of the above offences.

1 Act l of .187*..

SUPPRESSION OF TERRORIST OUTRAGES ACT C&V

Report of the Select Committee — We, the members of the Select
Committee of the Bengal Legislative Council, to which the Benga
Suppression of Terrorist Outrages Bill, 1932, was referred by a motion
carried in the Bengal Legislative Council on the 9th August, 1932, have ;
the honour to submit this our report with a copy of the Bill, as
amended by us, annexed. All matter omitted by the Select Committee
has been printed in italics and enclosed in square brackets, and all new
matter inserted has been underlined.

1. The Bill was published in the Calcutta Gazette on the 4th August,
1932.

2. The Committee met for the first time on the 10th August, 1932,
and finished detailed consideration of the Bill at meetings held on the
11th and 12th August, 1932.

3. We do not consider that the Bill has been so altered as to require
republication.

4. We recommend that the Bill as amended be passed by the
Council.

5. The following are principal changes made in the Bill : —

Clause 1(1). — This sub-clause, as modi lied, enables the Local Govern-
ment to extend the provisions of Chapter I to any area in Bengal but avoids
reference to any particular district.

Clause 2(c) and 3 (2). — AVords have been added to make the inten-
tion clearer.

Clause 3 (1). — The words inserted require that an officer must have
reasonable grounds for suspicion before exercising the powers conferred by
this clause.

Clause 4(1). — A proviso has been added requiring that reasonable
notice and reasonable facilities for withdrawal must be given to persons
occupying a building before possession is taken.

New Clause 5-a. — Sub-clause (3) of clause 4 and sub-clause (2) of
clause 5 hvac been combined in this new clause for conciseness, and this
provision for compensation has been put in a mandatory form.

Clause 9 (1) (a). — The words " or regulate ” have been substituted as.
more appropriate.

Clause 12 (a). — Sub-clause (a) has been omitted on the ground that it
gives an unnecessarily wide power, and might be so interpreted as to
conflict with clause 11. It is considered that sub-clauses (b) and \c) provide
adequately for such powers as might be required.

Clause 16. — Sub-clauses (I) and (3) have been so modified that the
power of the District Magistrate to delegate powers under clause 4 (when
he has been invested with such jpowers) has been restricted to a power to
authorise the exercise of such powers “ ia a specified area or in connection
with a specified operation or sciies of operations", and the District Magis-
trate is given a discretion as to the civil or military officers whom he will
so authorise.

Clause 22. — The wording has been made more concise.

Clause 27 (2). — The period within vtfhich an appeal can be presented
has been extended from seven to fifteen days as it is considered that the
former period is too short.

R. N. REID,

Member-in -Charge.

• / H. J. TWYNAM.

Bi A. NAG. •

♦AZIZUL HAQUE.

SARAT CHANDRA BAL.
♦J1TENDRALAL BANNERJEE.
♦BHUPENDRA NARAYAN SINHA,
♦KAMINI KUMAR DAS.

/ • W. H. THOMPSON.

■ * ABUL KASEM.

♦MUHAMMAD ABDUL MOMIN.

Signed sulSjec^tq his Minute of Dissent annexed.

CXVi THE INDIAN PENAL CODE

Joint Minute of Dissent by Khan Bahadur Maulvi Azizul Haque, L, C . ,

and Khan Bahadur Muhammad Abdul Momin, M % L. C.

. We would sign the report subject to the following Minute of Dissent

In the Explanation of clause 14, delete the portion beginning with the
words " and landlords *’ and ending with " actually reside therein."

Minute of Dissent by Babu Jitendralal Bannerjee, M.L*C.

There are two points, both with reference to clause 14, regarding
which I should like to enter a word of dissent.

Where under clause 14(2), a class or section of inhabitants are
exempted from liability to pay any collective fine, it ought to be made
perfectly clear that such exemption is based, not upon communal or racial
considerations but simply or solely upon the consideration that the
exempted class or community have had no connection with outrages of a
terrorist nature.

Again, in the Explanation to clause 14, it ought to be made clear that
it is only persons having some sort of residential connection with a local
area — or who occupy house -property there by agents or servants — who
ought to be made liable for the imposition of collective fines. Landlords,
whose only connection with an area is rent-collection by means of non-
resident agents, are not to be regarded as " inhabitants " within the
meaning of the section.

A proviso should be added to clause 4 (1) laying down that the land or
building (taken possession of by the Local Government under this clause
should not be so used as to wound the religious feelings of the owner or
occupier thereof. This is all the more necessary in view of certain
atrocious facts recently published in the newspapers, viz., of a Hindu
house where cow-sacrifice was pei formed by Muhammadan soldiers (or
police) in occupation.

■jj ft ..."

Minute &i;^Dissent by Raja Bhupendra Narayan Sin ha Bahadur , of

Nashipur, M.L.C.

I sign the report subject to the following Minute of Dissent : —

The time of the operation of the Act is not provided for in any of the .
clauses of the Bill. In the Statement of Objects and Reasons however
it is laid down that the Bill when it becomes an Act will be put in operation
with the expiry of the Ordinances IX and X of 1932.

I would also like to add the following proviso to clause 4(1) : —

“ Provided that the* land or the building does not contain ary place
for periodical or permanent worship." «

In clause 10, I should like to add the following words after the words
“ within such limits —

“ as is compatible with his status and his position in life, his religious
belief and sentiments as well as his physical capacity to do the work
required for him."

In clause 14 (3), the words " and the degree of concern " be added
after the word “means."

In Explanation of clause 14, lor the words " or hold land or other ’
immoveable property " the words " any house " be substituted and the
portion beginning with the words "and landlords" and ending with
" actually reside therein " be deleted. #

The reason for the insertion of the additional words is that generally
people having a stake in the place arc not involved or concerned in such
turbulance, though as men of means they are most easy people to realize
the fine. This is inequitable. Apportionment should be on the basis of
responsibility for the trouble in addition to means.

My reason for this amendment is the definition of " inhabitants " is
very wide. It is absurd to penalise a man living hundreds of miles away,
specially landholders having merely spine zamindary in the locality
affected. This would be leaving a zanlindar at tfie mercy of ths^Magfc*
tarate who may not know him at alfc.. '. ^; - I; • - . .

r ' v ; -/r v 3.:

SUPPRESSION OJF TERRORIST OUTRAGE S ACT CXVli

Minute of Dissent by Rai Bahadur Kamini Kumar Das, M.L.C. V

I sign the report subject to the following Minute of Dissent

I would also like to add the following provisos to clause 4 (1) : —

" the land or building does contain any place for periodical or perma-
nent worship. M

In clause 10, after the words " may require any ” insert ” person ”
and delete the words beginning from " landholder ” and ending with
“ educational institution”, and after the words " may specify ” add ” pro-
vided such person is not prevented by extreme old age, health or disease
from rendering the assistance required.”

It is in fitness of things that all subjects of His Gracious Majesty should
come forward to render such assistance as may be required of them pro-
vided they are not prevented by extreme old age, health or disease.

In clause 11, after the words ” under this section ” add " the Magis-
trate or the officer concerned may, after the search, give to the person con-
cerned the substance of the information which led to the search.”

The reason for this addition is that otherwise the position of inhabi-
tants is becoming unbearable day by day as spies of irresponsible nature
are often giving false information against persons who are their enemies
which led to vexatious searches.

In the Explanation of clause 14, for the words ” o* hold land or other
immovable property ” the words ” any house ” be substituted and the
portion beginning with the words “and landlords” and ending with
“ actually reside therein ” be deleted.

My reason for this amendment is the definition of " inhabitants “ is
very wide. It is absurd to penalize a man living hundieds of miles away,
specially landholders having merely some za mindary in the locality affected.
This would be leaving a zamindar at the mercy of the Magistrate who may
not know him at all. - ,

Minute of Dissent by Maulvi Abut Kasem, M.L.C.

I would sign the report subject to the following Minute of Dissciu : —

In clause 10, I should like to add the following words after the words
" within such limits ” : —

“ as is compatible with his status and his position in life, his religious
belief and sentiments as well as his physical capacity to do the work re-
quired for him.”

In the Explanation of clause 14, for the words ” or hold land or other
immoveable property ” substitute the words “ any house, ” and delete
the portion beginning with th£ words “ and landlords ” and ending
with ” actually reside therein.”

Ben. Act VI
1930.

Short title
& duration.

Power to
order custo-
dy in jail
out-sidc
Bengal.

Construc-

tion.

Bar of cer-
tain legal
proceedings.

The Bengal Criminal Law Amendment
(Supplementary) Act, 1932.

(Act VIII of 1932.)

AN ACT TO SUPPLEMENT THE BENGAL CRIMINAL
LAW AMENDMENT ACT, 1930.

( Received the assent of the Governor General on the 5th A pril , 1932) .

Whereas it is expedient to supplement the Bengal
Criminal Law Amendment Act, 1930 ; It is hereby enacted as
follows : —

1 . This Act may be called the Bengal Criminal Law
Amendment (Supplementary) Act, 1932.

It shall remain in force for a period not exceeding three
years',

2. The power of the Local Government under sub-
section (1) of section 2 of the Bengal Criminal Law Amendment
Act, 1930 (hereinafter referred to as the Local Act), to direct by
order in writing that any person shall be committed to custody
in : j|til $h$Jl be deemed to include a power to direct, by order
in writing made with previous sanction of the Governor General
in Council, that such person shall be committed to custody
in any jail in British India ; and, for all or any 01 the purposes
of the local Act, an order so made shall be deemed to be an
order made under section 2 of that Act, and all the provisions
of that Act shall apply accordingly :

Provided that the powers exerciseable by the Local Govern-
ment under section II of the local Act in respect of any person
committed to custody in a jail outside Bengal, and under
section 13 of that Act to provide for the manner of custody,
of any such person, shall be exercised by the Local Government
of the province in which the jail is situated, and rules made by
such Local Government in exercise of such powers shall be
published in the local official Gazette.

3. References to the local Act in sections 14 and 15 of
that Act shall be deemed also to be references to the local Act
as supplemented by this Act.

4. The powers conferred by section 491 of the Code of
Criminal Procedure, 1898, shall not be exercised in respect of
any person arrested, committed to or detained In custody
under the local Act or the local Act as supplemented by this

■ Act * • • ' : v ;-V; ■' •; v ; - -..v v ' ■

5. Sections 4, 5 and 6 of the Bengal Criminal Law
Amendment (Supplementary) Act, 1925, are hereby repealed.

Repeals.

The Bengal Criminal Law Amendment
Act, 1930. 1

(Bengal Act VI of 1930.)

An Act to supplement the ordinary criminal law in Bengal.

Whereas it is expedient to supplement the ordinary crimi*
nal aw in Bengal ;

And whereas the previous sanction of the Governor General
has been obtained under sub-scction (3) of section 80A of the
Government of India Act to the passing of this Act : —

It is hereby enacted as follows

1. (1) This Act may be called the Bengal Criminal Law
Amendment Act, 1930.

5 & 6 Geo.
V, c. 61; 6

6 7 Geo. V,
c. 37; 6 &
10 Geo. V,
c.101.

Short title
and extent.

(2) It shall come into force on the nineteenth day of
October, 1930.

(3) It extends to the whole of Bengal.

(4) It shall continue in force for five years from the date
of its commencement.

2 . (1) 2 [Where, in the opinion of the Local Government, Power of
there are reasonable grounds for believing that any person— Local Go-
vernment to

(i) is a member of an association of which the objects d ™ ] . with
and methods include the commission of any offence p^ m sus "
included in the First Schedule or the doing of any
act with a viev^ to interfere by violence or threat
of violence, with the administration of justice ; or
(it) has been or is being instigated or controlled by a
member of any such association with a view to the
commission or doing of any such offence or act ; or

(Hi) has done or is doing any act to assist the operations
01 any such association ;

the Local Government may, by order in writing,]

give all or any of the following directions, namely, that such
person— •

(a) shall notify his residence and any change of residence
to such authority as may be specified in the order ;

* For Statement of Objects and Reasons, see Calcutta Gazette, 1930,
Paft lV, pages 12M25 ; and for proceedings in Council, see the Proceedings
of the Bengal Legislative Council, Vol. XXXV, pag':s 600 to 640 and 688
to 733.

: f The words in square brackets in s. 2(1) were substituted for the
original words by the Bengal Criminal Law Amendment Act, 1932 (Beng.
Afct IV of 1932), s. 2 ■ ... . ^ ■. ;• ;

cxx

THE INDIAN PENAL CODE

(fi) shall report himself to the police in such manner and
at such periods as may be so specified ;

(c) shall conduct himself in such manner or abstain from
such acts as may be so specified ;

(d) shall reside or remain in any area so specified ;

(e) shall not enter, reside in, or remain in any area so
specified ;

(/) shall be committed to custody in jail ;
and may at any time add to, amend, vary or rescind any order
made under this section :

Provided that such order shall be reviewed by the Local
Government at the end of one year from the date of making
of the order, and shall not remain in force for more than one
year unless upon such review the Local Government directs
its continuance.

(2) The Local Government in its order under sub-section (1)
may direct —

(a) the arrest without warrant of the person in respect of

whom the order is made at any place where he
may be found by any police officer or by any
officer of Government to whom the order may be
directed or endorsed by or under the general or
special authority of the Local Government ;

(b) the search of any place specified in the order which

in the opinion of the Local Government has been,
is being, or is about to be used by such person, for
purpose of doing any act, or committing any
offence, of the nature described in sub-section (1).

Service of 3 * An order made under sub-section (1) of section 2 shall
orders under be served on the person in respect of whom it is made in the
section 2. manner provided in the Code of Criminal Procedure, 1898, for
service of summons, and upon such service such person shall
be deemed to have had due notice fhereof.

Power to 4 . (1) Any officer of Government authorized in this
amst with- behalf by general or special order of the Local Government
out warrant, may arrest without warrant any person against whom a
reasonable suspicion exists that he is a person in respect of
whom an order might lawfully be made under sub-section (1)
of section 2.

(2) Any officer exercising the power conferred by sub-
section (1) may, at the time of making the arrest, search any
place and seize any property which is, or is reasonably sus-
pected of being, used by such person for the purpose of doing
any act, or committing any offence, of the nature described in
sub-section (1 ) of section 2, '[and may require in writing any
police officer subordinate to him and not below the rank of a
Sub-Inspector or any officer in charge of a police station as
defined in the Code of Criminal Procedure, 1898, whether in

1 The words and figures in square brackets in s. 4(2), were added :
by the Bengal Criminal Law Amendment Act, <1932 (Ben. Act IV of 1982),

.MW:,. ,

Act V of
1898 .

BENGAL CRIMINAL LAW AMENDMENT ACT CXXl

the sailie or different district or jurisdiction to search any such
place and seize any such property. The officer to whom such
requisition is addressed shall thereupon search the place or
places specified in the requisition and forward the property
found, if any, to the officer at whose request the search was
made. The provisions of the Criminal Procedure Code, 1898,
so far as they can be made applicable, shall apply to any search
made under this sub-section.]

(3) Any officer making an arrest under sub-section (1)
shall forthwith report the fact to the Local Government, and
may, by order in writing, commit any person so arrested to
custody pending receipt of the orders of the Local Government ;
and the Local Government may by general or special order
specify the custody to which such person shall be committed :

Provided that no person shall be detained in custody under
this section for a period exceeding fifteen days save under a
special order of the Local Government, and no person shall in
any case be detained in custody under this section for a period
exceeding 1 two months.

5 . (1) The Local Government and every officer of Govern- Enforcement
ment to whom any copy of any order made under section 2 of orders,
has been directed or endorsed by or under the general or special
authority of the Local Government may use any and every

means necessary to enforce compliance with such order.

(2) Any officer exercising any of the powers conferred by
section 4 may use any and every means necessary to the full
exercise of such powers.

6 . * (1) Whoever, being a person in respect of whom, an Pe na i t y f or
order has been made under sub-section ( 1 ) of section 2 , knowingly breach of
and wilfully disobeys any direction in such order, shall be order under
punishable with imprisonment for a term which may extend section 2 -
to two years and shall also be liable to fine.

4 (2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1898, an offence under sub-section (1) Act v of
shall be a cognizable and non-bailable offence for which a 1898 -
warrant shall ordinarily issue in the first instance.

7 . (1) Every person in respect of whom an order has been
made under sub-section (x) of section 2 shall, if so directed
by any officer authorized in this behalf by general or special
order of the Local Government, —

(«)' permit himself to be photographed ;

(6) allow his finger impression to be taken ;

(c) furnish such officer with specimens of his handwriting
and signature ;

Power of
photogra-
phing, etc.,
persons in
respect of
whom order
has been
made under
section 2.

(d) attend at such times and places as such officer may
direct for all or any of the foregoing purposes.

• 1 The words " two months ” were substituted for the words “ one
month ’’ by the Bengal Criminal Law Amendment Act, 1932 (Ben. Act
IV of 1832), s. 3(2),

2 Section # was numbered as sub-section ( 1 ) of section 6 and to this
section as renumbered sgb-section (2) was added by the Bengal Criminal
Law Amendment Act, 1932 (Ben, Act IV of 1932), s. 4.

Powers, of
search.

Scrutiny of
case by two
Judges.'

Power to
suspend ope-
ration of.
orders under
section 2.

CXXil THE INDIAN PENAL CODE

(2) If any person’ fails to comply with or attempts to
avoid any direction given in accordance with the provisions
of sub-section (r), he shall he punishable with imprisonment
for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

8 . The power to issue search warrants conferred by
section 98 of the Code of Criminal Procedure, 1898, shall be
deemed to include a power to issue warrants authorizing the
search of any place in Which any Magistrate mentioned in that
section has reason to believe that any offence specified in the
Second Schedule has been, is being, or is about to be committed,
and the seizure of anything found therein or thereon which the
officer executing the warrant has reason to believe has been,
is being, or is intended to be, used for the commission of any
such offence ; and the provisions of the said Code, so far as
they can be made applicable, shall apply to searches made under
the authority of any warrant issued under this section, and to
the disposal of any property seized in any such search ; and
an order for search issued by the Local Government under
sub-section (2) oi section 2 shall be deemed to be a search
warrant issued by a Presidency Magistrate or the District
Magistrate having jurisdiction in the place specified therein,-
and may be executed by the person to whom the order is
addressed in the manner provided in this section.

9 . (1) Within one month from the date of an order by
the Local Government under sub-section (i) of section 2,
the Local Government shall place before two persons, who
shall be either Sessions Judges or Additional Sessions Judges
having, in either case, exercised for at least five, years, the
powers of a Sessions Judge, or Additional Sessions Judge,
the material facts and circumstances in its possession on which
the order has been based or which are relevant to the inquiry,
together with any such facts and circumstances relating to
the case which may have subsequently come into its possession,
and a statement of the allegations against the person in respect
of whom the order lias been made and his answers to them,
it furnished by him. The said Judges shall consider the said
material facts and circumstances and the allegations and
answers and shall report to the Local Government whether or not
in their opinion there is lawful and sufficient cause for the order.

(2) On receipt of the said report, the Local Government
shall consider the same and shall pass such order thereon as
appears to the Local Government to be just or proper.

(3) Nothing* in this section shall entitle any person agairist
whom an order has been made under sub-section (x) of section
2 to attend in person or to appear by pleader in any matter
connected with the reference to the said Judges, and the
proceedings and report of the said Judges shall be confidential

10 . (1) When an order under sub-section (1) of section 2

has been made against a person, th«, Local Goverimteat Wv
at any time, without conditions cm upon any conditiohs which"
such person accepts, direct the ^pension or cancellatidh of
such order, - " - • —

; ; : V;V BENGAL CRIMINAL LAW AMENDMENT ACT CXXiii

(a) If any condition 611 which an order has been suspended
or cancelled is in the opinion of the Local Government not
fulfilled, the Local Government may revoke the suspension
or cancellation, and thereupon the person in whose favour
such suspension or cancellation was made may, if at large,
be arrested by any police officer without warrant, and the
order under sub-section (r) of section 2 shall be deemed to be
in full force.

(3) If the conditions on which such suspension or can-
cellation has been made include the execution of a bond with
or without sureties, the Local Government may at once
proceed to recover the penalty of such bond.

(4) A Presidency Magistrate or Magistrate of the first
class shall in default of payment of such penalty issue, on
application made in this behalf by an officer of the Local
Government specially empowered, a warrant for the attachment
and sale ot the movable property belonging to the defaulter

or his estate if he be dead. On the issue of such warrant the . v ,
provisions of sub-sections (3) and (4) of section 5x4 of the Code jggg 0
of Criminal Procedure, 1898, shall apply to such recovery.

II. ( 1 ) The Local Government shall, by order in writing, Visiting
appoint such persons as it thinks fit to constitute Visiting Committees.
Committees for the purposes of this Act, and shall by rules
prescribe the functions which these Committees shall exercise.

(2) Such rules shall provide for periodical visits to persons
under restraint by reason of an order made under sub-section (1)
of section 2.

. (3) No person in respect of whom any such order has been
made requiring him to notify his residence or change of re-
sidence or to report himself to the police or to obtain from .any
specified act, shall be deemed to be under restraint for the
purpose of sub-section (2).

* 12 , The Local Government shall make to every person, Allowances
who is placed under restraint by reason of an order made to persons
under sub-section ( 1 ) of section 2 , such monthly allowance in under re-
cash or in kind or both for his support, as is, in the opinion their de^
of the Local Government, having regard to his other sources pendants,
of income, adequate for the supply of his wants, and shall also
make to his family, if any, and to such of his near relatives,
if any, as are in the opinion of the Local Government dependant
on him for support, an allowance of such amount as is, in the
Opinion of the Local Government, having regard to their other
sources of income, adequate for the supply of their wants
according to their rank in life. . 3

' . Explanation.— For -'the - • purposes . of this section a person
placed under restraint shall not include a person in respect
of whom any order' has been made under sub-section (1) of
section * requiring him to notify his residence or change of
resadpnije, or : ; :w reportohimself to the police or to abstain from
'ti»n an act which interferes with the
nor»al trade, bu^ or profession.

to the original section 12 by the Bengal
GnBphal J4tw j^ebd«eiJt Act, 1932 Ben. Act IV of 1932), s. 5,

THEINDIANPENAtCODE

Power to
make rules

Publication
of rules.

Bar to suits,
prosecutions
and other
legal pro-
ceedings.

Effect of the
Act.

Ordinance
No. 1 of 1930
Ordinance
No. IX of
1931.

Ben. Act IV
of 1932.

Act XLV
of 1860.

VI of 1908.
XI of 1878.

cxxiv

13. (i) The Local Government may makerulesproviding
for the procedure to be followed regarding the notification
of residence and report to the police by persons in respect of
whom orders have been made under section 2, and for the
place and manner of custody of all persons arrested or committed
to or detained in custody under this Act.

(a) Such rules shall be published in the Calcutta Gazette,
and on such publication shall have effect as if enacted in this
Act.

14. No suit, prosecution or other legal proceeding shall
lie against any person for anything which is in good faith done
or intended to be done under this Act.

15. Anything done and any action taken under the
provisions of the Bengal Criminal Law Amendment. Ordinance,
1930, shall be deemed to have been done or taken under the
provisions of this Act as if this Act had commenced on the
nineteenth day of April, 1930, '[and anything done and any
action taken under the provisions of the Bengal Criminal Law
Amendment Ordinance, 1931, shall be deemed to have been
done or taken under the provisions of this Act as amended
by the Bengal Criminal Law Amendment Act, 1932, as if this
last Act had commenced on the twenty-ninth day of October,

1931]-

(The First and Second Schedules.)

The First Schedule.

( See section 2.)

(1) Any offence punishable under any of the following
sections of the Indian Penal Code, namely, sections *[i2i,
121A, 122, 123, 148, 216], 302, 304, 326, 327, 329. 332. 333.
392. 394. 395. 396, 397. 39®. 399. 4°°, 4® 1 . 4 02 , 431. 435. 436,
437, 438, 440, 457 and 506.

*(2) Any offence under the Explosive Substances Act, 1908..

1(3) Any offence under the Indian Arms Act, 1878.

4(4) Any attempt or conspiracy to commit, or any. abetment
of, any of the above offences. Vy.

• — c T" 1 —" — — r •

1 The words and figures in square brackets in s. 15 were added by the
Bengal Criminal Law Amendment Act, 1932 (Ben. Act IV of 1932),# 5.; i

2 The figures in square brackets in paragraph (1) of the First Schedule

and paragraph (a) of the Second Schedule were substituted for the figures
“ 148 ” by the Bengal Criminal Law Amendment Act, 1932 IV

of 1932), $s. 7(a) and 8. '• • c V- ••

3 Paragraphs (2) and (3) of the FitstSchedule wereias#^^

Bengal Criminal Law Amendment Act, 1932 (Bem Act lV

4 The original paragraph {%) of

as paragraph (4) by the BengalCriminalLaw
(Ben* Act IV of 1932), s. 7(e). . m

BENGAL CRIMINAL LAW AMENDMENT ACT CXXV

The Second Schedule.

(See section 8.)

(a) Any offence punishable under any of the following
sections of the Indian Penal Code, namely, sections ■ x [i2i,
121A, 122, 123, 148, 216], 303, 304. 326. 327, 329, 332, 333.
385. 386, 387. 392, 394 - 395 » 398, 397 - 39 8 - 399 - 4 °°- 4 °*. 402,
43 i» 435 - 436, 43 7 - 43 8 . 44 °. 454 . 455 - 457 - 458, 459, 460 and
506,

( b ) Any offence under the Explosive Substances Act, 190S.

(c) Any offence under the Indian Arms Act, 1878.

(d) Any attempt or conspiracy to commit, or any abetment
of any of the above offences.

;cxxvi:- v y-vv r tjjjfe Indian ■/•*

Rules. , : r’

I. The following rule regulates the use of arms against any detenu
or body of detenus ordered to reside in Berhampore Camp

(1) Any police officer or constable may use a sword, bayonet, fire-
arm or any other weapon against any such detenu escaping or attempting
to escape : provided that resort shall not be had to the use of any such
weapon unless such officer or constable has reasonable ground to believe
that he cannot otherwise prevent the escape.

(2) Any police officer or constable may use a sword, bayonet, fire-
arm or any other weapon on any such detenu engaged in any combined
outbreak, or in any attempt to force or break open any gate, wire fencing
or enclosing wall of the Camp and may continue to use such weapon so
long as such combined ou thread or attempt is being actually prosecuted.

(3) Any police officer or constable may use a sword, bayonet, fire-arm
or any other weapon against any such detenu using violence to any officer
of the Camp or other person ^provided that such officer has reasonable
grounds to believe that the officer of the Camp or other person is in danger
of life or limb, or that other grievous hurt is likely to be caused to him.

(4) Before using fire-arms against a detenu under the authority
contained in rule (1) the police officer or constable shall give warning
to the detenu that he is about to fire on him.

(5) No police officer or constable shall use arms of any sort against a
detenu in the case of an outbreak or attempt to escape without the orders
of a superior officer when such superior officer is actually present and can
be consulted.

II. A detenu in the Bcihampore Camp is also subject to the follow-
ing rules : —

(1) He shall reside in the accommodation allotted to him by the
Commandant, Berhampore Camp, and within the limits of the Camp.
He may proceed beyond those limits only with the permission of the
Commandant given by a general or special order in this behalf.

(2) He shall conform to and obey the orders of the Commandant of
the Camp issued from time to time for the comfort, safety, health and
orderly conduct of the Camp and all persons residing within it.

(3) He shall attend roil call and answer his name in person at such
times and places within the Camp as may be appointed by the
Commandant.

(4) ( a ) He must be clean and properly dressed during the d&y, must
stand up when any inspecting officer or authorised visitor visits his
quarters, must answer any question putrto him by such officers or visitors
in the discharge of their duties, and otherwise treat them with respect.

(6) Any person in respect of whom an order has been passed under
section 2 (.1), Bengal Criminal Law Amendment Act, 1930, residing in
Berhampore Camp, assaulting, insulting, thieatening or obstructing any
other such person, or any officer of the Camp or Government servant, or
any pezson employed in the Camp, or quarrelling or guilty of indecent or
immoral conduct, or communicating or attempting to communicate with
outsiders in an unauthorised manner, or bribing, or attempting to bribe,
any Government servant of other person or spitting and soiling his barrack
or verandahs, or disobeying the orders of or showing disiespect to the
authorities of the * Camp is liable to have the manner of his custody
varied or to prosecution under any la# in* force. ;

(5) lie shall not; wilf filly dd anything to cause himself ifijury fir iliheifls.

m He shall hot liaye of; keep money,
ment is his possfission, nor shailhe exchange,

equipment; clothes, ffimitufe or .belangingSv'ij^ -• -V

rj) All letters, telegrams, -

kind, including parcels and pth£* 'aM&chjf iotofid||d .
be deli vered by the pcs tal authorities rn the fimtpiaee't^
of the Berhampore Camp. In the event, howVer* qf to

AMENDMENT ACT CXXVli

described above coming into his possession otherwise, he must without
delay deliver it unopened to the office of the Commandant, Berhampore
Camp.

(8) He must not enter into; written correspondence with any person
unless such correspondence has been previously submitted to the Com-
mandant, Berhampore Camp.

(9) Except as provided in rule (8) above, he shall not directly or
indirectly correspond, communicate or associate with any person other than
a person domiciled in Berhampore Camp under an order passed on such
person under section 2 of the Bengal Criminal Law Amentment Act, 1980,
without the express permission given by a general or special order in
this behalf by the Commandant, Berhampore Camp.

(10) He shall not refer in his correspondence to any person in respect
of whom an order under the Bengal Criminal Law Amendment Act, 1930,
has been made.

(11) He shall at all times allow free access to his quarters to the
Commandant, the medical officers, and any Government servant authorised
in this behalf by the Commandant, Berhampore Camp.

(12) When called upon to appear before the Commandant or in his
absence before the Assistant Commandant of the Camp or the Assistant
or Sub- Assistant Surgeons of the Camp, he shall do so without undue delay.

(13) When called upon by a police officer in uniform to declare his
name he shall do so.

(14) When ordered by a police officer in uniform or by a medical
officer of the Camp to return to or remain in his barrack or hospital ward
he shall at once comply with such order.

(15) All complaints and requests must be made to the Commandant
Berhampore Camp, at the time and in the place and manner appointed
by him. Petitions to the local Government must in all cases be made
through the Commandant. Bequests for medical attendance or treatment
should be made to the Asistant Surgeon in medical charge of the Camp
at the time and in the place and mapner appointed by him, and approved
by the Commandant.

(16) The Commandant or in his absence the Assistant Commandant
of the Camp may at any time search, or cause to be serached in* his
presence, the person of any detenu ordered to reside in Berhampoie Camp,
his quarters and his belongings, and such detenu shall submit himself, his
quarters and belongings to such search, when called upon to do so.

(17) Whenever he commits a breach of the foregoing rules, the
Commandant, Berhampore Camp, may, after enquiry, vary the manner
of his custody in the following Wjays and to the following extent —

(t) Order him to be confined in the manner provided in Jail Code
Rule 713 for a period of not more than seven days (cellular confinement).

(H) Order him to be confined in the manner provided in Jail Code
Rule 714 for not more than fourteen days (separate confinement).

(Hi) With the sanction of the local Government older him to be con*
fined in the maimer laid down in Jail Code Rule 713 for a period exceeding
seven days (cellular confinement, major punishment).

These rules are made under section 13 of the Bengal Criminal Law
Amendment Act of 1930, and by the order served on him under section
2 (1) of the said Act the detenu is ordered to obey them. Under section 6
of the said Act whoever knowingly and wfifully disobeys any direction in
such order shall be punishable with imprisonment for a term which may
extend to two years and shell also be liable to fine.

1 See the Calcutta Gazette, Pt. 1 3rd Dec. 1931, pp. 1495*1496.

CXXViii THE INDIAN PENAL CODE ; •/■■

RULES FOR DETENUES IN HIJLI CAMP,

. I. The following rule regulates the use of arms Against any detents
or body of de tenues ordered to reside in Hijli Camp

(1) Any police officer or constable may use a sword, bayonet, fire-
arm or any other weapon e gainst any such detenu escaping or attempting
to escape : provided that resort shall not be had to the use of any such
weapon unless such officer or constable has reasonable ground to believe
that he cannot otherwise prevent the escape.

(2) Any police officer or constable may use a sword, bayonet, fire-arm
or any other weapon on any such detenu engaged in any combined out-
break, or in any attempt to force or break open any gate, wire fencing or
enclosing wall of the Camp and may continue to use such weapon so long
as such combined outbreak or attempt is being actually prosecuted.

(3) Any police officer or constable may use a sword, bayonet, fire-
arm or any other weapon against any such detenu using violence to any
officer of the Camp or other person ; provided that such officer has
reasonable grounds to believe that the officer of the Camp or other person
is in danger of life or limb, or that other grievous hurt is likely to be
caused to him.

(4) Before using fiie-arms against a detenu under the authority
contained in rule (1 ) the police officer or constable shall give warning to
the detenu that he is about to fire on him.

(5) No police officer or constable shall use arms of any soit against a
detenu in the case of an outbreak, or attempt to escape without the
orders of a superior officer when such superior officer is actually present
and can be consulted.

II. A detenu in the Hijli Camp is also subject to the following
rules : —

(1) He shall reside in the accommodation allotted to him by the
Commandant, Hijli Camp, and within the limits of the Camp. He may
proceed beyond those limits only with the permission of the Commandant
given by a" general or special order in this behalf.

(2) He shall conform to and obey the orders of the Commandant of
the Camp issued from time to time for the comfort, safety, health and
orderly conduct of the Camp and all persons residing within it.

(3) He shall attend roll call and answer his frame i n person at
such times and places within the Camp as may be appointed by the
Commandant.

(4 ) {a) He must be clean and properly dressed during the day, must
stend up when any inspecting officer or authorised visitor visits his
quarters, must answer any question put t j him by such officers or visitors
in the discharge of their duties, and otherwiss treat them with respect.

(b) Any person in respect of whom an order has been passed under
section 2(1), Bengal Criminal Law Amendment Act, 1930, residing in
Hijli Camp, assaulting, insulting, threatening or obstructing any other
such person, or any officer of the Camp or Government servant, or any
person employed in the Camp, or quarrelling or guilty of indecent or
immoral conduct, or communicating or attempting to communicate with
outsiders in an unauthorised manner, or bribing, or attempting to bribe,
any Government servant or other person or spitting and soiling his barrack
or verandahs, or disobeying the orders of or showing disrespect to the
authorities of the Camp is liable to have the manner of his custody varied
or to prosecution under any law in force. c

(5) He shall not wilfully do any thing to cause himself inj ury or illness:

(6) He shall not have or keep money, notes or any negotiable instru-
ment in his possession, nor shall he exchange, barter, or sell any of his
kit, equipment, clothes, furniture or belongings.

(7) All letters, telegrams; postal articles, or*commuhi£ation$

kind, including parcels and other articles intended for him, , Ayiil normally
be delivered by the postal authorities in the first place to the Commandant
of the Camp. In the event, however, of any such thing above

coming into his possession otherwise, he must

unopened to the office of the Compfemdant, Hijli -r/.'.

B&NOAt GRIMIJtAt LAW AMEN^DMEl'ir'l ACT CXXix

(8) ,’.He must not enter into written correspondence with any person '
unless such correspondence has been previously submitted to the Com-
mandant, Hijli Camp.

(9) Except as provided in rule (8) above, he shall not directly or
indirectly correspond, communicate or associate with any person other
than a person domiciled in Hijli Camp under an order passed on such
person under section 2 of the Bengal Criminal Law Amendment Act, 1930,
without the express permission given by a general or special order in ’’this
behalf by the Commandant, Hijli Camp.

(10) He shall not refer in his correspondence to any person in respect
of whom an order under the Bengal Criminal I-aw Amendment Act,
1930, has been made.

(11) He shall at all times allow free access to his quarters to the
Commandant, the medical officers, and any Government servant auth-
orised in this behalf by the Commandant, Hijli Camp.

(12) When called upon to appear before the Commandant or in his
absence before the Assistant Commandant of the Camp or the Assistant
or Sub- Assistant Surgeons of the Camp, he shall do so without undue delay.

(13) When called upon by a police officer in uniform to declare his
name he shall do so.

(14) When ordered by a police officer in uniform or by a medical
officer of the Camp to return to or remain in his barrack or hospital ward
he shall at once comply with such order.

(15) All complaints and requests must be made to the Commandant,
Hijli Camp, at the time and in the place and manner appointed by him.
Petitions to the Local Government must in all cases be made through
the Commandant. Requests for medical attendance or treatments should
be made to the Assistant Surgeon in medical charge of the Camp at the
time and in the place and manner appointed by him, and approved by
the Commandant.

(16) The Commandant or in his absence the Assistant Commandant
of the Camp may at any time search, or cause to be searched in his
presence, the person of any detenu ordered to reside in Hijli Camp, his
quarters and his belongings, and such detenu shall submit himself, his
quarters and belongings to such search, when called upon to do so.

(17) Whenever he commits a breach of the foregoing rules the
Commandant, Hijli Camp, may, after enquiry, vary to manner of his
custody in the following ways and to the following extent : —

( i ) Order him to be confined in the manner provided in Jail Code
Rule 713 for a period of not more than seven days (cellular confinement).

(it) Order him to be confined in the manner provided in Jail Code
Rule 714 for not more than fourteen days (separate confinement).

(in) With the sanction of the local Government order him to be
confined in the manner laid down in Jail Code Rule 713 for a period
exceeding seven days (cellulat confinement, major punishment).

These rules are made under section 13 of the Bengal Criminal Law
Amendment Act of 1930, and by the order served on him under section
2(1) of the said Act the detenu is ordered to obey them. Under section 6
of the said Act whoever knowingly and wilfully disobeys any direction
in Such order shall, be punishable with imprisonment for a term which
may extend to two years and sliall also be liable to #ne.

1 See the Calcutta Gazette, Dated 5th Feb. 1931, Pt. 1, pp. 126-128.